BLACKWELL, Justice.
The Fourteenth Amendment of the United States Constitution forbids the State to "deprive any person of life, liberty, or property without due process of law," and in this case, we consider what process, if any, is constitutionally due a person whom the State seeks to classify as a "sexually dangerous predator" under the Georgia sexual offender registration laws, OCGA § 42-1-12 et seq.
1. In June 2009, Gregory used a computer to broadcast lewd images over the Internet to a person who was, Gregory believed, a teenage girl.
Those laws require every sexual offender convicted of a dangerous sexual offense on or after July 1, 1996 to fulfill certain registration requirements, see OCGA § 42-1-12(e)(2),
Additional requirements and restrictions may attach, however, upon a finding that a sexual offender presents a significant risk of committing additional dangerous sexual offenses. The sexual offender registration laws require the Board
Sexual offenders classified as Level II risk assessments or sexually dangerous predators may seek administrative reevaluation, and in connection with that reevaluation, sexual offenders again have an opportunity to provide information relevant to their classification:
OCGA § 42-1-14(b). Although a sexual offender is afforded an opportunity to submit documentary evidence in support of a petition for administrative reevaluation, there is no provision for an administrative evidentiary hearing in connection with the Board's consideration of such a petition. See id.
Sexual offenders classified as Level II risk assessments or sexually dangerous predators also may seek judicial review of their classifications, and yet again, they are afforded an opportunity to submit documentary evidence in connection with judicial review. Moreover, there is a provision for the reviewing court to hold an evidentiary hearing, but that provision is permissive, not mandatory:
OCGA § 42-1-14(c).
A sexually dangerous predator is subject to requirements and restrictions in addition to those requirements and restrictions that apply to sexual offenders generally. Most notably, OCGA § 42-1-14(e) requires a sexually dangerous predator to submit for the rest of his life to electronic monitoring and tracking of his person and to pay the costs associated with that monitoring and tracking:
In addition, sexually dangerous predators must register with their sheriffs more frequently than other sexual offenders, see OCGA § 42-1-14(f),
In 2013, the Board classified Gregory as a sexually dangerous predator. That classification was based principally on the written recommendation of a clinical evaluator, who relied in significant part on documentary evidence of the circumstances that led to the conviction for obscene Internet contact with a child, as well as two incidents — one in 1995, another 2012 — that involved Gregory indecently exposing himself to others. After the Board notified Gregory of his classification, he timely petitioned the Board for reevaluation, and in connection with that reevaluation, he submitted to the Board numerous documents that related to his treatment for psychosexual issues from 2011 through 2013. Those documents included extensive psychological, psychiatric, and psychosexual records, reports, evaluations, and prognoses, as well as letters from both expert and lay witnesses. A different clinical evaluator examined this documentation, concluding in her own written report that the original recommendation was appropriate, and the Board denied the petition for reevaluation. At that point, Gregory timely filed a petition for judicial review. The superior court afforded him yet another opportunity to file documentary evidence favorable to his position, and this time, he submitted a polygraph report and additional letters from expert witnesses, friends and acquaintances, and his supervision officer. The superior court did not, however, afford Gregory an evidentiary hearing, notwithstanding that he specifically requested a hearing, and the court subsequently affirmed the classification determination of the Board. With this background in mind, we turn now to the constitutional question presented.
2. Gregory contends that his classification as a sexually dangerous predator — without affording him any opportunity in person at an evidentiary hearing to present favorable evidence and confront unfavorable evidence concerning the likelihood that he will commit additional dangerous sexual offenses — amounts to a deprivation of his liberty without due process of law.
On the question of a liberty interest, Gregory points first to the opprobrium and significant reputational harm that follow after a classification as a sexually dangerous predator. The stigma of such a classification seems apparent, and it cannot, we think, seriously be disputed. Nevertheless, as the Board correctly notes, "stigmatization of reputation alone does not implicate a liberty interest sufficient to invoke federal due process protection." State v. Jackson, 269 Ga. 308, 310(1), 496 S.E.2d 912 (1998). See also Paul v. Davis, 424 U.S. 693, 701-710(II)(B), 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). If Gregory pointed to nothing but opprobrium and reputational harm, he would fail to show that his classification implicates a liberty interest. But Gregory does not rely on stigma alone.
To the contrary, as Gregory notes, his classification as a sexually dangerous predator affects him in other ways. For instance, sexually dangerous predators must report to the sheriff more frequently than Level I and Level II sexual offenders. See OCGA § 42-1-14(f). Sexually dangerous predators cannot work at any business within 1,000 feet of an area in which minors congregate, see OCGA § 42-1-15(c)(2), an employment restriction in addition to those imposed on sexual offenders generally. Most significantly, as a sexually dangerous predator, Gregory must submit to the placement of an electronic monitoring device on his person, he must wear that device for the remainder of his life, he must yield to the State using that device to track his whereabouts at any time it desires to do so, and he must pay the State for the cost of that device. The requirement that Gregory submit to such electronic monitoring and tracking by means of a device attached to his person is — quite clearly, we think — a serious restraint of his liberty. See Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187, 196-197 (2009); Doe v. Mass. Parole Bd., 82 Mass.App.Ct. 851, 979 N.E.2d 226, 232-233 (2012). See also Vitek v. Jones, 445 U.S. 480, 492(III)(B), 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) ("Among the historic liberties protected by the Due Process Clause is the right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security." (Citation and punctuation omitted)). Although the Board maintains that a classification as a sexually dangerous predator implicates no cognizable liberty interest, it has failed to point to any persuasive authority for the proposition that compelled submission to electronic monitoring and tracking for life does not affect the sort of "liberty" with which the Fourteenth Amendment is concerned.
Considering the electronic monitoring and tracking requirement, the additional registration requirement, the additional employment restriction, and the opprobrium and reputational harm associated with classification as a sexually dangerous predator, we hold that such a classification implicates a liberty interest. The constitutional guarantee of due process applies to a classification as a sexually dangerous predator under the Georgia sexual offender registration laws. We now turn, therefore, to the question of what process is due, and more specifically, whether the classification requires an evidentiary hearing.
3. To decide what process is due, we apply the familiar three-factor test that the United States Supreme Court identified in Mathews, 424 U.S. at 335(III)(A), 96 S.Ct. 893, weighing "(1) the private interest affected; (2) the possibility of erroneous deprivation using the established procedure and the probable value of additional procedural safeguards; and (3) the government's interest in the procedure or the burden of providing greater procedural protections." Subsequent Injury Trust Fund v. James, 261 Ga. 548, 548, 406 S.E.2d 77 (1991). When applying the Mathews test, the Supreme Court has cautioned that "the very nature of the due process inquiry indicates that the fundamental fairness of a particular procedure does not turn on the result obtained in any individual case." Walters v. Nat. Assn. of Radiation Survivors, 473 U.S. 305, 321(III), 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). And as Mathews itself notes, "procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied
Keeping these principles in mind, we proceed to apply the Mathews test to the case now before us. Because we already have discussed the nature of the liberty interest, weighing that interest as we consider the first factor is a relatively straightforward task. We conclude that the liberty interests affected by classification as a sexually dangerous predator are substantial. In the first place, the stigma that follows such a classification — as well as the broad employment restriction imposed uniquely on sexually dangerous predators, see OCGA § 42-1-15(c)(2) — undoubtedly may have a serious "adverse impact on an individual's ability to live in a community and obtain or maintain employment."
As for the second Mathews factor, the danger of an erroneous risk classification is, we think, "substantially more significant" in the absence of a hearing either before the Board or the superior court. State v. Germane, 971 A.2d 555, 580(I)(A)(2) (R.I.2009). See also Noble, 964 P.2d at 996. This is not the sort of case, like Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Greenholtz, in which "providing additional process creates security risks or provides a negligible decrease to the risk of error, [and] the [Supreme] Court is less willing to afford additional process." Meza v. Livingston, 607 F.3d 392, 408(III)(A) (5th Cir.2010). See also Wolff, 418 U.S. at 560(IV), 94 S.Ct. 2963 ("one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison"); Shoats v. Horn, 213 F.3d 140 (3rd Cir.2000) (the sole case on which the trial court relied, involving administrative confinement of a prisoner). Instead, this case is more like those that require an evidentiary hearing with confrontation and cross-examination of witnesses (unless there is a finding of good cause not to permit such confrontation and cross-examination), such as Vitek, 445 U.S. at 494-495(IV), 100 S.Ct. 1254, where deprivation of the liberty interest led to stigmatizing
This case also is not the sort of case in which an evidentiary hearing is simply unnecessary because the relevant evidence is largely objective in nature, presenting few, if any, genuine disputes of fact or credibility. See Noble, 964 P.2d at 996; Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 952 A.2d 1060, 1075-1076(IV)(C) (2008). For instance, the potential value of an evidentiary hearing is minimal when social security disability benefits are discontinued, as such a decision will turn, in most cases, on routine, standard, and unbiased written medical reports that ordinarily do not involve questionable credibility and veracity even if there is professional disagreement with the conclusions. See Mathews, 424 U.S. at 344(III)(D), 96 S.Ct. 893. Such medical experts are likely to be able to communicate more effectively through written documents than lay witnesses, and medical conclusions often are supported by objective data uncovered by clinical and laboratory tests and information typically more amenable to written than to oral presentation. See id. at 345(III)(D), 96 S.Ct. 893. On the other hand, the medical nature of an inquiry does not justify the denial of an evidentiary hearing when the inquiry depends on the meaning of facts that must be interpreted by expert psychiatrists and psychologists. "It is precisely the subtleties and nuances of psychiatric diagnoses that justify the requirement of adversary hearings." Vitek, 445 U.S. at 495(IV)(A), 100 S.Ct. 1254. See also Martin v. Barrett, 279 Ga. 593, 595, 619 S.E.2d 656 (2005) ("We understand that psychiatry is an imprecise and imperfect science at best." (Citation omitted)). This seems especially true when psychiatric or psychological evidence purports to predict the likelihood that someone will commit additional crimes in the future.
In this case, for instance, the record contains extensive psychological, psychiatric, and psychosexual records, reports, evaluations, and prognoses. The record also includes documentary evidence that memorializes divergent accounts of Gregory's prior offenses (particularly the 2012 incident involving indecent exposure), as well as letters from lay witnesses. Considering the record in this case, it is apparent that much of the evidence relevant to a classification as a sexually dangerous predator tends to be subjective in nature, and that evidence often may present meaningful factual and credibility disputes. Without an evidentiary hearing to assess that evidence and resolve these disputes, the danger of an erroneous risk classification is substantial.
About the third Mathews factor, the Board asserts that a hearing in every case involving a classification as a sexually dangerous predator would be very costly, both in terms of time and resources. Other courts have decided, however, that the fiscal and administrative burdens of a hearing on the likelihood of a sexual offender committing additional crimes are not significant enough to justify the refusal of such a hearing. See Germane, 971 A.2d at 582(I)(A)(3); Noble, 964 P.2d at 996-997. In addition, we note that OCGA § 42-1-14(c) already provides that a superior court may hold a hearing on the question of classification in any case in which the court sees fit to do so, without limitation, suggesting that the General Assembly did not consider the cost and burden of such hearings to be a concern that outweighs all others. Finally, we note that the Board has failed to come forward with record evidence to show that a hearing in every case of a classification
Considering the three Mathews factors, we conclude that due process demands that an evidentiary hearing be afforded upon request to sexual offenders classified as sexually dangerous predators. We add, however, that we see no reason why an evidentiary hearing would be required in both administrative and judicial proceedings. See Germane, 971 A.2d at 579(I)(A)(2)(a); Noble, 964 P.2d at 997. As noted, OCGA § 42-1-14(c) already provides that "[t]he court may hold a hearing to determine the issue of classification." "Unlike a substantive due process claim, a constitutional violation of procedural due process is not complete unless and until the State fails to provide due process." Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218, 466 S.E.2d 588 (1996) (punctuation omitted) (citing Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). When the State does provide a hearing at some point in the course of administrative or judicial proceedings, the failure to hold a hearing at an earlier point in the proceedings generally becomes moot or is considered cured. See Atlanta City School Dist., 266 Ga. at 218, 466 S.E.2d 588; Clark v. State, 245 Ga. 629, 641(5), 266 S.E.2d 466 (1980); Germane, 971 A.2d at 580(I)(A)(1)(a). Affording an evidentiary hearing to Gregory in which he might present evidence favorable to his cause and confront the evidence against him would satisfy the requirement of due process, regardless of whether the hearing is held before the Board or the superior court.
In this case, the evidentiary hearing requested by Gregory and required by due process has never been held. Accordingly, the judgment of the superior court must be reversed, and the case must be remanded for an evidentiary hearing at which Gregory will have a meaningful opportunity to present favorable evidence and to confront the evidence against him, unless there is a finding of good cause not to permit such confrontation. See Vitek, 445 U.S. at 494-495(IV), 100 S.Ct. 1254; Morrissey, 408 U.S. at 489(III)(b), 92 S.Ct. 2593; Meza, 607 F.3d at 411(III)(B); Roberts, 278 Ga. at 26, 597 S.E.2d 385. It will be sufficient in this case for the trial court itself to hold that hearing pursuant to the statutory authorization in OCGA § 42-1-14(c). For other cases, the Board may elect to establish procedures by which persons classified as sexually dangerous predators are afforded a meaningful opportunity in an administrative hearing to present favorable evidence and confront the evidence against them, if the Board determines that an administrative hearing would be more efficient and cost-effective than a judicial hearing.
Judgment reversed and case remanded with direction.
All the Justices concur.
We note that a violation of OCGA § 16-12-100.2 also is a "dangerous sexual offense" with respect to convictions after June 30, 2015. See OCGA § 42-1-12(a)(10)(B.1) (xvii).
The term "criminal offense against a victim who is a minor" is defined in OCGA § 42-1-12(a)(9).
See also OCGA §§ 42-1-16(b) (residency restriction for individuals required to register by virtue of acts committed between July 1, 2006 and June 30, 2008), 42-1-17(b) (residency restriction for individuals required to register by virtue of acts committed between June 4, 2003 and June 30, 2006).
See also OCGA § 42-1-16(c)(1) (employment restriction for individuals required to register by virtue of acts committed between July 1, 2006 and June 30, 2008).
OCGA § 42-1-13(a). Members of the Board are appointed by the Governor and serve for a term of four years. See id.
See also OCGA § 42-1-16(c)(2) (employment restriction for sexually dangerous predators required to register by virtue of acts committed between July 1, 2006 and June 30, 2008).