V. L. Y. v. Board of Parole & Post-Prison Supervision

72 P.3d 993, 188 Or. App. 617, 2003 Ore. App. LEXIS 890

• Court: Court of Appeals of Oregon
• Decided: July 16, 2003
• Docket: A108068
• Status: Published

Opinions

KISTLER, J.

Petitioner appeals from an order of the Board of Parole and Post-Prison Supervision (board) designating him as a predatory sex offender. He argues that the board’s order violates various provisions of the state and federal constitutions. We affirm.

Before turning to the facts of this case, we describe briefly the applicable statutory and regulatory background. ORS 181.585(1) provides that a person who has been convicted of a limited class of sex offenses¹ will be designated as a “predatory sex offender” if he or she “exhibits characteristics showing a tendency to victimize or injure others * * *.”² ORS 181.586(1) entrusts the determination whether a person is a predatory sex offender to the board for persons on parole and post-prison supervision and to the Department of Corrections (department) and community corrections agencies for persons on probation. Finally, ORS 181.585(2) directs those agencies to use a “sex offender risk assessment scale approved by the Department of Corrections” in determining whether a person should be designated as a predatory sex offender.

The legislature thus provided a general definition of the term “predatory sex offender” and delegated to the department and the board the authority, if not the obligation, to identify the substantive characteristics that will determine whether a person meets that definition. The legislature, however, did not specify the procedures that the board should follow in deciding who should be designated as a predatory sex offender, and those procedures have varied over time.

Initially, the board took the position that it could designate persons on parole or post-prison supervision as predatory sex offenders without holding a hearing or providing any opportunity for a response. According to the then-applicable rules, before a person was released on parole or post-prison supervision, a counselor would use a risk assessment scale to evaluate whether a person should be designated as a predatory sex offender. See former OAR 291-28-030(2)(a)(A) (1996). That evaluation, which could be based on an inmate’s file, police reports, and confidential communications among agency officials,³ would be forwarded to the board as part of the release planning packet. Based on that evaluation, the board would make registration as a predatory sex offender a condition of parole or post-prison supervision. See id.

In Noble v. Board of Parole, 327 Or 485, 498, 964 P2d 990 (1998), the Oregon Supreme Court held that those procedures did not provide an offender with due process. Weighing the individual’s interest, the risk of an erroneous decision under the board’s existing procedures, and the burden on the agency to provide additional predesignation procedures, the court concluded:

“[D]ue process requires notice and an evidentiary hearing when the Board proposes to designate a person as a predatory sex offender pursuant to ORS 181.585. Moreover, the hearing must occur before the designation decision is made. * * * Here, as the statute is written and as it has been applied by the Board and supervising agencies, the deprivation at issue, i.e., community notification, can follow so close on the heels of a designation decision that a post-decisional hearing would occur too late to comport with due process.”

Id. at 498 (emphasis in original).

After Noble, the board issued new rules.⁴ See OAR 255-060-0011. Under those rules, the amount of process that the board provides varies depending on which risk assessment factors apply in a given case. See id. The department’s risk assessment scale lists a series of factors that increase or decrease the risk that a convicted sex offender will reoffend. Not all the factors are weighted equally, however. Some factors are designated as “automatic override” factors,⁵ others are referred to as “starred” factors,⁶ and the remainder are designated as neither automatic override nor starred factors. Procedurally, if the board makes a preliminary determination that one automatic override factor or three starred factors apply, the board will notify the offender of its preliminary determination and give him or her an opportunity to explain in writing why those factors do not apply. It will not, however, provide the offender with any further hearing beyond that. If, after considering the offender’s written objections, the board finds that either one automatic override factor or three starred factors apply, then its rules provide that the person will be designated as a predatory sex offender. OAR 255-060-0011(3).

If no automatic override or fewer than three starred factors apply, the board will consider all the positive and negative factors that apply, give each a preassigned weight, and determine whether a convicted sex offender’s total score on all the applicable factors results in a preliminary designation as a predatory sex offender.⁷ OAR 255-060-0011(3). If it does, the board will make available to the offender “a Morrissey-type hearing prior to the Board making a predatory sex offender finding.” OAR 255-060-0011(6)(a). Stated differently, if no automatic override or fewer than three starred factors apply, the board will provide the offender with an opportunity to present live testimony and cross-examine witnesses concerning all the applicable factors on the risk assessment scale before deciding whether that person’s total score on the risk assessment scale will result in a designation as a predatory sex offender.

In this case, petitioner was convicted in 1991 of first-degree rape and first-degree sodomy. In 1999, the board made a preliminary determination that one automatic override factor applied—a prior conviction for forcible rape.⁸ It also determined that three starred factors applied—a history of sex offense convictions, the use of weapons or threats, and a prior nonsexual criminal history. The board provided petitioner’s counsel with, among other things, its preliminary determination, notice of the specific factual basis for that determination,⁹ a copy of the board’s policies and procedures, a notice of rights, and a copy of petitioner’s presentence investigation report.

Petitioner, through his counsel, filed a lengthy objection to the board’s preliminary determination. Most of the objections were constitutional. One objection was factual and was directed at the automatic override factor. Petitioner explained that he had not been convicted of forcible rape. Rather, he had been convicted of statutory rape. He also objected to two of the starred factors on legal grounds. Regarding a “history of sex offense convictions,” petitioner did not dispute that, before his 1991 conviction for rape and sodomy, he had been convicted of first-degree rape and first-degree sodomy in January 1989 and of first-degree sex abuse and second-degree sex abuse in June 1989. He argued, however, that, because all of his rape, sodomy, and sex-abuse convictions involved the same victim, they should be regarded as a continuing offense rather than as separate prior convictions.¹⁰ Regarding the second starred factor, a “prior nonsexual criminal history,” petitioner did not dispute the factual basis for that starred factor—that he had been arrested for driving under the influence of intoxicants (DUII) in November 1988. He argued, however, that this factor did not apply to him because he had successfully completed diversion.

After receiving petitioner’s objections, the board agreed with petitioner that the automatic override factor did not apply; that is, it agreed that the evidence did not show that he had a prior conviction for forcible rape. It adhered, however, to its conclusion that three starred factors applied. It rejected petitioner’s arguments that his four 1989 convictions should not be regarded as “prior convictions” within the meaning of the risk assessment scale. It also found that “the prior non-sexual criminal history category applies because [petitioner] had a DUII arrest that resulted in a diversion. The definitions for the sex offender risk assessment scale specifically state that diversions are to be included in this category.” Finally, the board noted that petitioner had not challenged its conclusion that the third starred factor—the use of weapons or threats—applied. Having considered petitioner’s objections and having found that three starred factors applied, the board designated petitioner as a predatory sex offender.

On review, petitioner argues primarily that his due process right to a “full testimonial hearing” entitles him either to challenge or supplement the board’s use of the department’s risk assessment scale. As we understand his argument, he contends that, under the procedural component of the Due Process Clause, he was entitled to a hearing to prove either that the risk assessment scale is “not a valid, scientific test” or that, despite the criteria set out in the board’s rules, he is not likely to reoffend. He also raises a variety of other state and federal constitutional challenges to the board’s order. Before turning to defendant’s constitutional arguments, we first consider the dissents’ subconstitutional rationale. The dissents would hold, as a matter of statute, that the board may not rely exclusively on the department’s risk assessment scale to determine whether petitioner should be classified as a predatory sex offender. In the dissents’view, ORS 181.585(1) requires that petitioner be given the opportunity to introduce evidence that, notwithstanding the criteria in the department’s risk assessment scale, he is not currently dangerous.

In analyzing that issue, we begin with text and context of ORS 181.585. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). ORS 181.585 provides:

“(1) For purposes of ORS 181.585 to 181.587, a person is a predatory sex offender if the person exhibits characteristics showing a tendency to victimize or injure others and has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes.

“(2) In determining whether a person is a predatory sex offender, an agency shall use a risk assessment scale approved by the Department of Corrections or a community corrections agency.”

ORS 181.585(1) thus sets out two conditions that must be met before a person may be designated as a predatory sex offender: (1) the person must have been convicted of one of the four crimes—rape, sodomy, unlawful sexual penetration, or sexual abuse—listed in ORS 181.594(2)(a) to (d); and (2) the person must “exhibí [t] characteristics showing a tendency to victimize or injure others.”

The first condition in ORS 181.585(1) defines the class of persons who are eligible to be designated as predatory sex offenders: Only those persons who have been convicted of one of the four specified sexual offenses may be designated as a predatory sex offender. Within that class, however, the legislature has left it to the board and the department to identify the subclass of persons who “exhibí [t] characteristics showing a tendency to victimize others.” Beyond determining the class of persons eligible to be designated as predatory sex offenders, the textual reference to past convictions has no bearing on the factors that the department or the board should consider in deciding who should be included within the subclass.

The second condition defines which convicted sex offenders should be designated as predatory sex offenders— those persons who “exhibi[t] characteristics showing a tendency to victimize others.” The legislature’s use of the present tense verb “exhibits” implies that an offender must presently exhibit certain characteristics, but that verb does not identify which characteristics the offender must exhibit. Rather, the participial phrase that follows and modifies “characteristics”—i.e., “characteristics showing a tendency to victimize others”—performs that function. The participial phrase is broad. Nothing in the phrase “showing a tendency to victimize others” requires proof that a person is currently dangerous. Rather, the phrase is broad enough to include persons whose past conduct provides reason to believe that they may be dangerous in the future. The board, for example, reasonably could conclude that an offender with a history of multiple convictions for sexual assault “exhibits characteristics showing a tendency to victimize others.”

One final portion of ORS 181.585 bears on the textual analysis. ORS 181.585(2) directs the board to use a “sex offender risk assessment scale” approved by the department to determine which convicted sex offenders should be designated as predatory sex offenders. ORS 181.585(2). Implicit, if not explicit, in the direction to use a sex offender risk assessment scale approved by the department is a delegation of legislative authority to the department to develop a scale that identifies those characteristics or combination of characteristics that “show a tendency to victimize or injure others.” Nothing in the text of ORS 181.585(1) precludes the department or the board, in carrying out that legislative mandate, from relying solely on an offender’s previous convictions to determine his or her present risk of reoffending.

The dissents advance an alternative interpretation of the statute’s text.¹¹ They observe that the phrase “exhibits characteristics showing a tendency to victimize or injure others” focuses on a person’s present tendencies, while the question whether a person “has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d)” focuses on the person’s history. See 188 Or App at 639 (Edmonds, J., dissenting). It follows, the dissents reason, that the text of ORS 181.585 unambiguously establishes that neither the department nor the board may rely on a person’s criminal history to determine whether he or she presently exhibits characteristics showing a tendency to victimize or injure others. See id.

The dissents’ textual interpretation is problematic for at least three reasons. First, the fact that the question whether a person “has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d)” focuses on the past does not mean that a person’s entire criminal history is relevant only to that consideration, as the dissents’ analysis appears to assume. Second, and conversely, an offender’s criminal history is logically and textually relevant to whether he or she “exhibits characteristics showing a tendency to victimize or injure others.” The fact that a person has a history of criminal behavior bears on whether he or she has a present tendency to victimize or injure others. Finally, the dissents unnecessarily discount the delegation of legislative authority to the department in ORS 181.585(2) to identify, in the first instance, those characteristics or combinations of characteristics that will define when a person shows a tendency to victimize or injure others. The delegation is broad enough to permit the department to develop a risk assessment scale that relies, as the department’s scale does, on an offender’s criminal history to make a present prediction about the offender’s future risk.¹²

Although the dissents’ interpretation seems at odds with the text, we cannot say that it is implausible or completely foreclosed by the text. We note, however, that the context cuts against the dissents’ textual interpretation. The legislature has not chosen to permit a person who has been designated as a predatory sex offender to prove that the designation should be removed because he or she is no longer currently dangerous. See ORS 181.588; ORS 181.600(l)(a)(C). It is difficult to see why a finding that a person is currently dangerous is a necessary predicate to the decision to designate a person as a predatory sex offender but irrelevant to the question whether the designation, once made, should continue. Perhaps the legislature intended to draw an arbitrary distinction between making the designation and continuing it. But the bétter conclusion to be drawn from the context is that proof that a person is currently dangerous is not a necessary prerequisite to determining that he or she continues to present the sort of risk that requires community notification. The text, considered in context, does not resolve the inquiry, however, and we turn to the legislative history.

The legislative history confirms that the legislature intended to give broad discretion to the department to determine by rule which offenders exhibited characteristics showing a tendency to victimize or injure others. It did not intend to limit that delegation of authority in the way that the dissents would. The bill that became ORS 181.585 originated in the House. As initially drafted, it required automatic community notification for every person released on probation or parole who had been sentenced as a dangerous offender under ORS 161.725 or who was required to register as a sex offender. HB 2759 (1993), Draft Bill (Dec 13, 1992). During the hearings before the House Subcommittee on Crime and Corrections, two propositions emerged. First, it became clear that identifying and personally notifying every person in a sex offender’s neighborhood, once he or she was released on parole or probation, could prove to be a daunting and costly task. Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2759, Apr 28, 1993, Tape 91, Side A (statements of Rep Robert Tiernan and Committee Counsel Holly Robinson). Second, the subcommittee learned that the corrections departments in two counties had been involved in a pilot notification project that used a “risk assessment scale” to identify those probationers for whom notification was appropriate.¹³ Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2759, Mar 31, 1993, Tape 63, Side A (testimony of Cindy Hanners and Faye Fagel).

To limit the costs of notification, the subcommittee considered relying on the risk assessment scale to narrow the class of offenders whose release would trigger notification. Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2759, Apr 29, 1993, Tape 92, Side A (statement of Rep Robert Tiernan; testimony of Joanne Fuller; statement of Committee Counsel Holly Robinson). Over the course of several hearings, the subcommittee considered a series of amendments that incorporated verbatim some of the factors set out in the department’s risk assessment scale. Some amendments required mandatory notification if the “automatic override” or “starred” factors were present. HB 2759 (1993), -1 amendments (Apr 13, 1993); -3 amendments (Apr 26,1993). Other amendments, to give the implementing agencies flexibility both to refine their analysis and to limit the costs of notification, declined to incorporate the risk assessment scale verbatim but provided that “[t]o determine the offender’s potential risk, the parole and probation officer shall use a risk assessment scale approved by the Department of Corrections.” HB 2759 (1993), -4 amendments (May 6,1993).

As the bill ultimately passed out of the House, it authorized notification only for persons who had been convicted of certain specified sex offenses. Within that class of offenders, it provided for automatic notification for all those persons who had a “history of predatory behavior.” HB 2759 (1993), A-Engrossed (May 24,1993), § 2(1). If a person did not have a “history of predatory behavior,” the bill provided that “the parole and probation office supervising the offender shall determine the potential risk that the offender poses to the community in order to decide whether notification of the community is necessary.” HB 2759 (1993), A-Engrossed (May 24,1993), § 3. Finally, the bill directed that, in “determin[ing an] offender’s potential risk, the parole and probation officer shall use a sex offender risk assessment scale approved by the Department of Corrections.” Id. The House did not require proof that a person was currently dangerous as a prerequisite to notification. Rather, it made notification automatic if a person had a history of predatory behavior, or discretionary, based on the application of department’s risk assessment scale.

The Senate Judiciary Committee took a similar but slightly different approach to determining those persons for whom notification was appropriate. As the House had, the Senate provided that only those persons who had been convicted of specified sexual offenses were eligible for notification. The Senate, however, did not divide that class into two groups—one that required mandatory notification and another for whom notification was discretionary. Rather, within the class of convicted sex offenders, the Senate provided for notification for those persons who “exhibí [t] characteristics showing a tendency to victimize others”—the standard that is now codified in ORS 181.585(1). See Senate Amendments to A-Engrossed House Bill, HB 2759, July 19, 1993, § 1(1). The senate amendments also provided, much as ORS 181.585(2) now provides, that, “[i]n determining whether a person is a predatory sex offender, an agency may use a sex offender risk assessment scale approved by the Department of Corrections.” Senate Amendments to A-Engrossed House Bill, HB 2759, July 19,1993, § 1(2).

A subcommittee of the Senate Judiciary Committee developed the standard that is now codified in ORS 181.585(1) over a nine-day period between June 23 and July 2, 1993. There is no record of the subcommittee’s work, and the only explanation of the language “exhibits characteristics showing a tendency to victimize others” comes from Senator Shoemaker’s statements to the Senate Judiciary Committee when he explained the draft amendments on July 2. He told the committee that, rather than have a blanket rule about who would be subject to the notice, as the House had done, “we would require that a parole or probation department or board, or the psychiatric review board, make a determination that the person presents a risk to the public.” Tape Recording, Senate Judiciary Committee, HB 2759, July 2, 1993, Tape 207, Side B (statement of Sen Robert Shoemaker). Nothing in Senator Shoemaker’s explanation precludes the department from looking solely to historical criteria to determine an offender’s present risk of reoffending in the future.

After Senator Shoemaker’s comments on July 2, there was no further discussion of the standard. However, in deciding a different issue—who should make the determination whether a person is a predatory sex offender—the committee’s discussions touched tangentially on the issue presented here. Senator Webber stated that “there needs to be a policy decision whether the decision should be made by a judge or by rule within the Department of Corrections.” Tape Recording, Senate Judiciary Committee, HB 2759, July 7, 1993, Tape 210, Side B (statement of Sen Catherine Webber). In response, Senator Shoemaker expressed his belief it “should be an individual determination. Should be very specific to the person and should be done by the Board of Parole or the court.” Tape Recording, Senate Judiciary Committee, HB 2759, July 7, 1993, Tape 210, Side B (statement of Sen Robert Shoemaker). Senator Webber later agreed that the determination could be made by the Department of Corrections, and that language was added to section (2) of the amended bill. Tape Recording, Senate Judiciary Committee, HB 2759, July 12, 1993, Tape 217, Side B (statement of Sen Catherine Webber); HB 2759 (1993), B-Engrossed (July 19, 1993), § 2. Webber thus appeared to agree that the department could adopt rules to determine which sex offenders exhibited characteristics showing a tendency to victimize others, and her comments implicitly reaffirm the department’s discretion to identify, by rule, those characteristics or combinations of characteristics that will demonstrate a sufficient risk to require notification.¹⁴

After the Senate passed out its version of the bill, the House refused to concur in the Senate amendments, and a conference committee was appointed to resolve the differences between the two bills. The understanding on which the Joint Conference Committee resolved those differences provides the controlling legislative history. Owens v. Maass, 323 Or 430, 444-45, 918 P2d 808 (1996) (treating conference committee legislative history as final indication of legislative intent); State v. Beason, 170 Or App 414, 431-32, 12 P3d 560 (2000), rev den, 331 Or 692 (2001) (same).

Legislative counsel began the conference committee hearing by identifying two differences between the House and the Senate bills that required resolution. Counsel explained that the House version “requires community notification of those sex offenders who have a prior sex offense criminal history and a history of predatory behavior.” Tape Recording, Conference Committee, HB 2759, July 28, 1993, Tape 1, Side A (statement of Holly Robinson, Committee Counsel). She explained that the Senate version, on the other hand, “establishes guidelines for the Board of Parole or Department of Corrections to follow when making a determination that a person under their supervision is a predatory sex offender.” Id. She said that the committee had agreed to the Senate version and started to turn to the second difference that divided the two chambers. Id.

At that point, Representative Parks, the chair of the conference committee, interjected to explain the basis on which the two chambers had agreed to the Senate’s language. He said, “Before we go to that, if I understand, what we had in the [House] bill as mandatory now becomes guidelines, in other words discretionary.” Tape Recording, Conference Committee, HB 2759, July 28, 1993, Tape 1, Side A (statement of Rep Del Parks). Legislative counsel confirmed that understanding. She said:

“The criteria are the same in that the House version talked about predatory behavior. The Senate attempted to define it a little bit further than the House version had but, rather than having mandatory notification, it really sets up a scheme by which if an agency wants to do so then there will basically be some guidelines to follow—some rules to follow.

“I think that the other piece that it does is that by establishing statutory guidelines in this way if notification is done, the PO’s [probation or parole officers] in Clackamas County will be having the same conversation that the POs in Marion Comity will have.”

Tape Recording, Conference Committee, HB 2759, July 28, 1993, Tape 1, Side A (statement of Holly Robinson, Committee Counsel).

Representative Parks’ statement makes clear that the Conference Committee agreed to the Senate version on the understanding that the department had discretion to provide by rule the same type of standards that the House had mandated; that is, the department and the board could provide for designation as a predatory sex offender based solely on “a history of predatory behavior,” as the bill provided when it emerged from the House. Legislative counsel’s explanation reinforces that understanding. She added that the Senate bill was not intended to limit the agency’s discretion. Rather, it merely “attempt[s] to define [the concept of predatory behavior] a little bit further than the House version had.” The “rea[l]” benefit of the statute, as counsel explained it, is that it “sets up a scheme by which if an agency wants to do so then there will be guidelines to follow—some rules to follow.” Nothing in this interchange suggests that the Joint Conference Committee understood that proof that a person was currently dangerous was a necessary prerequisite to designating that person as a predatory sex offender. Rather, the discussion in the conference committee makes clear that the statute gives the department and the board discretion to determine the risk that an offender poses solely by looking to his or her past behavior.

Taking the legislative history of ORS 181.585 together with the text and context of the statute, we hold that the legislature intended to give the board and the department the ability to determine by rule the characteristics, such as those developed in the risk assessment scale, that show a tendency to victimize or injure others. Noble requires that the board provide petitioner with notice of his preliminary designation as a predatory sex offender and provide him an opportunity to challenge evidence used by the board to make the designation. But petitioner’s challenge is confined, by statute, to the evidentiary findings made by the board on the risk assessment scale because that scale is the tool the board uses to determine whether an offender “showfs] a tendency to victimize or injure others.” See ORS 181.585(1); ORS 181.585(2).

We now turn to petitioner’s various constitutional arguments.¹⁵ Relying on the procedural component of the Due Process Clause of the Fourteenth Amendment, petitioner argues that the board erred in two respects—the first substantive and the second procedural. Petitioner argues initially that his procedural due process right to a “full testimonial hearing” precludes the board (or the legislature for that matter) from relying exclusively on the factors set out in the risk assessment scale to determine whether he is a predatory sex offender. Put another way, in petitioner’s view, procedural due process requires the board to employ a specific substantive standard; it may not rely solely on his past behavior, as portions of the risk assessment scale do, to decide whether he is a predatory sex offender.

The Court’s decision in Connecticut Department of Public Safety v. Doe, 538 US _, 123 S Ct 1160, 155 L Ed 2d 98 (2003), provides the short answer to petitioner’s first argument. The Court reasoned:

“In cases such as Wisconsin v. Constantineau, 400 U.S. 433 (1971), and Goss v. Lopez, 419 U.S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove—that he is not currently dangerous—is of no consequence under Connecticut’s Megan’s Law. As the DPS Website explains, the law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Indeed, the disclaimer on the Website explicitly states that respondent’s alleged nondangerousness simpiy does not matter.

“In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders—currently dangerous or not—must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise. * * * [The sltates are not barred by principles of 'procedural due process’ from drawing such classifications.”

123 S Ct at 1164-65 (emphasis in original; citations omitted). The Court thus recognized that state law determines the substantive criteria that must be satisfied before a person may be publicly designated as a sex offender. The procedural component of the Due Process Clause has no bearing on that issue, contrary to petitioner’s primary constitutional argument.

Petitioner raises a second due process issue. He argues that, even if the board’s substantive rules are constitutionally valid, the procedures that the board employed in this case were constitutionally deficient. Before we turn to that question, it is helpful to restate the procedures the board provided petitioner. As noted, the board made a preliminary determination that petitioner was a predatory sex offender because one automatic override factor and three starred factors applied. After making that determination, the board provided petitioner’s counsel with a copy of the risk assessment scale, the factual basis for its conclusion that the four factors applied, a copy of the board’s policies and procedures, a notice of rights, a copy of the definitions for the risk assessment scale, and a copy of petitioner’s PSI report. The board also provided petitioner with an opportunity to file a written objection to its preliminary determination but did not provide him with an opportunity to call witnesses to testify.

As noted, petitioner filed a lengthy objection to the board’s determination. In that objection, he did not dispute any of the historical facts that formed the basis for the board’s preliminary determination that three starred factors applied.¹⁶ Rather, he accepted those historical facts but argued that different legal consequences should follow from them. Because the only relevant issues that petitioner raised were legal, there was no need for an evidentiary hearing in which witnesses would testify and be cross-examined. Put another way, even if due process ordinarily would entitle petitioner to a testimonial hearing before the board decided whether to designate him as a predatory sex offender, see Koskela v. Willamette Industries, Inc., 331 Or 362, 378-81, 15 P3d 548 (2000), the failure to provide such a hearing in this case was harmless error, see Meadows v. Board of Parole, 181 Or App 565, 579, 47 P3d 506 (2002), rev den, 335 Or 355 (2003).¹⁷

Petitioner next argues that the board’s order violates Article I, section 20, of the Oregon Constitution.¹⁸ He contends that the factors used in the department’s risk assessment scale are not “permissible criteria” for distinguishing among persons because they “lac[k] scientific validity” and are contradicted by “countervailing expert evidence.” As we explained, however, in Gunn v. Lane County, 173 Or App 97, 102, 20 P3d 247 (2001), rev den, 334 Or 631 (2002),

“Article I, section 20, protects only ‘true classes’ from disparate treatment. State ex rel. Huddleston v. Sawyer, 324 , 932 P2d 1145, cert den, 522 US 994 (1997); Tanner v. OHSU, 157 Or App 502, 520, 971 P2d 435 (1998). A true class is one that is not created by the challenged statute itself and is defined in terms of characteristics independent of the challenged statute. Tanner, 157 Or App at 520.”

Petitioner’s argument is not based on a claim that the risk assessment scale impermissibly distinguishes on the basis of a true class. Rather, petitioner seeks to use Article I, section 20, to mount what is in effect a substantive due process challenge to the wisdom of the board’s risk assessment scale. That is not a cognizable Article I, section 20, claim.

Petitioner also argues that the board’s order violates the ex post facto provisions of the state and federal constitutions, violates the double jeopardy protections of those constitutions, and also constitutes cruel and unusual punishment in violation of both constitutions. All those arguments are answered completely by our decision in Meadows. See 181 Or App at 571-79; cf. State v. MacNab, 334 Or 469, 482-83, 51 P3d 1249 (2002) (holding that requiring convicted sex offenders to register did not violate the state or federal prohibitions against ex post facto laws). We also note that the United States Supreme Court recently rejected a federal ex post facto challenge in Smith v. Doe, _ US _, 123 S Ct 1140, 155 L Ed 2d 164 (2003), to an Alaska statute similar to Oregon’s.¹⁹ The Court’s reasoning in Smith confirms our analysis of the federal constitutional claim in Meadows.

Petitioner raises two constitutional challenges that we did not address in Meadows. He argues first that ORS 181.585 is a bill of attainder. See US Const, Art I, § 10. The prohibition against bills of attainder prevents the legislature “from singling out disfavored persons and meting out summary punishment for past conduct.” Landgraf v. USI Film Products, 511 US 244, 266, 114 S Ct 1483, 128 L Ed 2d 229 (1994); see United States v. Brown, 381 US 437, 445, 85 S Ct 1707, 14 L Ed 2d 484 (1965). The prohibition, however, does not apply to laws that classify generally as opposed to those that single out specific persons. Nixon v. Administrator of General Services, 433 US 425, 471-72, 97 S Ct 2777, 53 L Ed 2d 867 (1977). The law that petitioner challenges here—ORS 181.585—is not directed at specific persons. It is directed instead at an open-ended class—those persons who have been convicted of specific sexual offenses and who exhibit characteristics showing a tendency to victimize or injure others. ORS 181.585(1). As such, ORS 181.585 is not a bill of attainder. Nixon, 433 US at 471-72.

Finally, petitioner argues that the predatory sexual offender notification law violates his federal privacy rights. We have held that the federal constitutional right to privacy is limited to those situations where government seeks to direct an individual’s unilateral personal decisions on issues such as abortion and contraception. Does 1-7 v. State of Oregon, 164 Or App 543, 565, 993 P2d 822 (1999), rev den, 330 Or 138 (2000). In reaching that conclusion, we determined that providing information about decisions that cannot be made unilaterally by the individual, such as the adoption of a child, implicate no privacy right. Id. at 565-66. Here, the state, not petitioner, made the decision to label him a predatory sexual offender. As a result, there is no federal privacy right implicated in disseminating that information to the public.²⁰

In summary, we hold that ORS 181.585 permitted the board to rely exclusively on the criteria in the department’s risk assessment scale to determine whether he was a predatory sex offender, that the procedural component of the Due Process Clause does not require that petitioner be permitted to impeach the risk assessment scale, that any error in not providing petitioner an evidentiary hearing was harmless on this record, and that petitioner’s various constitutional challenges to designating him as a predatory sex offender fail.

Affirmed.

APPENDIX

ORS 181.585

“(1) For purposes of ORS 181.585 to 181.587, a person is a predatory sex offender if the person exhibits characteristics showing a tendency to victimize or injure others and has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes.

“(2) In determining whether a person is a predatory sex offender, an agency shall use a sex offender risk assessment scale approved by the Department of Corrections or a community corrections agency.”

ORS 181.586

“(1)(a) If the State Board of Parole and Post-Prison Supervision for a person on parole or post-prison supervision or the Department of Corrections or a community corrections agency for a person on probation makes a determination that the person under its supervision is a predatory sex offender, the agency supervising the person shall notify anyone whom the agency determines is appropriate that the person is a predatory sex offender.

“(b) When a predatory sex offender has been subsequently convicted of another crime and is on supervision for that crime, the agency supervising the person may notify anyone whom the agency determines is appropriate that the person is a predatory sex offender, regardless of the nature of the crime for which the person is being supervised.”

1 The class consists of persons who have been convicted of rape, sodomy, unlawful sexual penetration, and sexual abuse. ORS 181.585(1); ORS 181.594(2)(a) - (d). It also includes persons who have been convicted of attempting to commit those crimes or found guilty except for insanity of one of those crimes. ORS 181.585(1); ORS 181.594(2)(a) - (d).

2 The complete text of the relevant statutes is set out in an Appendix to this opinion.

3 See Noble v. Board of Parole, 327 Or 485, 489, 964 P2d 990 (1998).

4 The board initially issued a policy statement, which had the effect of a rule. See Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141(1980). Although the policy statement applies to this case, we cite the rules because they are substantially the same as its policy statement.

5 Override factors are a prior forcible rape, use of a weapon during commission of the offense, and men who molest boys.

6 The starred factors that existed at the time of petitioner’s designation included a history of sex offense convictions, the offender was a stranger to the victim, use of weapons or threats, predatory behavior, and prior nonsexual criminal history.

7 According to the board’s rules, a negative 50 score (a score in which the negative factors outweigh the positive factors by 50 points or more) may result in a designation as a predatory sex offender. OAR 255-060-0011(3), (6)(b).

8 The board previously had calculated petitioner’s score on the risk assessment scale in 1996.

9 Regarding the history of sex offense convictions, the board provided petitioner with a list of the specific convictions on which it based its preliminary determination. Regarding the use of weapons or threats, the board provided petitioner with the specific threats that he allegedly had made. Finally, regarding the prior nonsexual criminal history, the board explained that petitioner had been placed on diversion for driving under the influence of intoxicants on November 30,1988, and had successfully completed diversion.

10 Petitioner made a second, subsidiary argument. He did not dispute that the acts that gave rise to the four 1989 convictions preceded the acts that gave rise to the 1991 conviction. He also did not dispute that the 1989 convictions preceded the 1991 conviction. He argued, however, that, because the 1989 convictions occurred after the acts that gave rise to the 1991 conviction, the 1989 convictions could not be regarded as “prior convictions” for the purposes of the risk assessment scale.

11 Because Judge Armstrong’s dissenting opinion echoes Judge Edmonds’ dissent, we refer primarily to Judge Edmonds’ dissent.

12 Judge Armstrong concludes, based on a single sentence from Noble, that the Supreme Court has already resolved this issue. See 188 Or App at 648 (Armstrong, J., dissenting). The dissent reads too much into that sentence. The statutory question presented by this case was not presented in Noble, and the court did not purport to decide it. The question presented here is what, as a matter of statute, is the substantive standard that the board should employ in deciding whether a person is a predatory sex offender. The question in Noble was whether the Due Process Clause requires, as a matter of procedure, that the board provide a hearing to the petitioner before designating him as a predatory sex offender. Those are two separate questions, as the Court recently reaffirmed in Connecticut Department of Public Safety v. Doe, 538 US _, 123 S Ct 1160, 155 L Ed 2d 98 (2003). We should hesitate to assume that our Supreme Court intended to resolve an issue in Noble that was neither briefed nor presented in that case. Moreover, the court hardly could have decided in Noble whether the board’s rules exceeded its statutory authority. When the court issued its decision in Noble, the board had not promulgated the rules that are at issue here.

13 The scale appears to have been developed to determine the appropriate level of supervision for sex offenders released on probation, but the corrections officers used it to determine which offenders were suitable for community notification.

14 At a July 12 Senate Judiciary Committee work session, Danny Santos, the chair of the parole board, and Joanne Fuller, the spokesperson for the Department of Corrections, explained that their agencies would be willing to make the determination whether a person was a predatory sex offender. Tape Recording, Senate Judiciary Committee, HB 2759, July 12, 1993, Tape 217, Side B (testimony of Danny Santos and Joanne Fuller). Both Santos and Fuller told the Senate Judiciary Committee that they would hold hearings before determining whether a person was a predatory sex offender. Id. The procedural question, however, of whether the board would hold hearings before determining whether a person was a predatory sex offender says nothing about the substantive terms on which the department and the board may rely in making that determination. The two concepts are logically distinct.

15 We discuss petitioner’s constitutional arguments in the order in which he makes them.

16 Petitioner did dispute the factual basis for saying that the automatic override factor applied, and the board agreed with his objection on that point.

17 Petitioner also argues that due process requires proof by clear and convincing evidence. The state responds that proof by a preponderance of the evidence is all that is required. We need not resolve that issue to decide this case. When, as in this case, the relevant historical facts are undisputed, the level of certainty necessary to resolve a factual dispute is irrelevant. Petitioner also argues that, whatever level of certainty is constitutionally required, the evidence in this case was insufficient to meet it. Petitioner’s argument rests on the premise that the board may not rely solely on the criteria set out in the department’s risk assessment scale to decide whether he should be designated as a predatory sex offender. Because the premise of petitioner’s argument fails, so does his claim that the evidence is insufficient.

18 Article I, section 20, of the Oregon Constitution provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

19 The Alaska statute that the Court upheld in Smith is essentially identical to the Oregon statute.

20 Petitioner also argues, without explanation, that the board’s order violates his right to privacy under the state constitution. He does not provide any basis for saying that the right, if it exists, is any broader than the federal right that we recognized in Roe, and we decline to address his state constitutional argument. See State v. Montez, 309 Or 564, 604, 789 P2d 1352 (1990) (declining to address Guarantee Clause argument that was not adequately briefed).