IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 33254
JASON C. SMITH,
Petitioner-Appellant,

v. STATE OF IDAHO,
Respondent. ) ) ) ) ) ) ) ) ) ) Boise, June 2008 Term 2009 Opinion No. 22 Filed: February 10, 2009 Stephen Kenyon, Clerk
AMENDED OPINION, THE COURT’S PRIOR OPINION DATED FEBRUARY 9, 2009 IS HEREBY WITHDRAWN

Appeal from the District Cour t of the Fifth Judicial Distri ct of the State of Idaho, Twin Falls County. Honorable John C. Hohnhorst, District Judge.

The decision of the district court is reversed and remanded

. Molly Huskey, State Appellate Public Defender, Boise, for appellant. Sara Thomas argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Mark Kubinski argued.

_______________________________________________ HORTON, Justice. Jason Smith was incarcerated for the 1998 rape of a fifteen-year-old girl. Prior to his release, he was referred to the Sexual Offender Classification Board (the Board or SOCB) to
determine whether he should be classified as a violent sexua l predator (VSP). The Board classified Smith as a VSP. Smith sought judici al review of that decision. After conducting an evidentiary hearing, the distri ct court upheld the Board’s d ecision. We conclude Smith’s designation was not constitutionally sound and, theref ore, reverse and remand with instructions to vacate Smith’s designation as a VSP.
I. FACTUAL AND PROCEDURAL BACKGROUND The facts are mostly undisputed in this case. 1 In 1990, Smith, at the age of fourteen, pled guilty to lewd conduct with a minor under sixteen for anally raping a five-year-old that he was

1 Smith disputes the dates associated with one of the rapes, but the district court found his testimony unconvincing because Smith did not dispute any of th e dates in the present record until the Board classified him as a VSP. The district court also found that the disputed dates, although important to the Board’s designation, were not dispositive.

1babysitting. At the time of the offense, Idaho di d not have a statute for male rape. Smith was committed to the Idaho Department of Health an d Welfare, where he completed a twelve-week sex offender treatment program. The program took Smith six months to complete because of his
behavior. In 1993, after a second victim came forward, Smith pled guilty to one count of male rape, in violation of I.C. § 18-6108. Ultima tely, Smith was sentenced as an adult to thirty days in county jail and committed to the custody of the Idaho Depa rtment of Health and Welfare until the age of twenty-one. Prior to being sent enced, Smith was arrested for burgl ary. He was sentenced to five years, with one year fixed and placed on the 180-day retained jurisdiction program. He was thereafter placed on probation. In 1998, Smith pled guilty to rape, in viol ation of I.C. § 18-6101(1). The rape charge stemmed from a sexual relationship with a fifteen-y ear-old girl. At the time of this offense, Smith was twenty-one and on felony probation for the burglary. Smith was sentenced to eight years imprisonment, with three years fixed, concu rrent with the earlier sentence for the burglary. In 2005, Smith admitted to committing a third male rape prior to the 1990 rape, which has remained uncharged. Smith testified that he ad mitted to this rape only because he was required to complete a polygraph test. He testified that th e victim was five or six years old at the time of
the attack. Prior to Smith’s release in late 2005, a psychosexual evaluation was conducted and Smith was referred to the Board to determine whether he should be designated as a VSP. The psychosexual evaluation was included in the in formation presented to the Board. The Board
determined that Smith was a VSP and notified hi m of their decision. Smith sought judicial review of that decision by the district court. Th e district court was provided with a sealed record containing the documents that the Board relied on in making its determination to designate Smith a VSP. After an evidentiary hearing, the district court uphe ld the Board’s decision. Smith appeals, contending that the Board, the district court, and this Cour t have violated his constitutional rights.
II. ANALYSIS We begin by acknowledging the obvious: Smith’s history of violent deviant sexual behavior is such that the Board’s designation as a VSP may well be warranted. The important question presented by this appeal, however, is not whether he deserves that label. Rather, the

2question that is the focal point of this Court’s inquiry is whether the State of Idaho has labeled Smith as a VSP in a fashion that comports with hi s constitutional right to due process. We first consider the constitutional flaws in the statutory scheme and next examine whether the proceedings before the district court rectified thes e flaws. We then consider Smith’s claim that
he did not receive effectiv e assistance of counsel in the proceedings below. A. The statutory framework for VSP designation in Idaho presents significant constitutional shortcomings.
1. The Statutory Framework Designation as a VSP is based on the provisions of Idaho’s Sexual Offender Registration Notification and Community Ri ght to Know Act (the Act or SOR Act). I.C. §§ 18-8301, et seq .; Lightner v. State , 142 Idaho 324, 325, 127 P.3d 227, 228 (Ct. App. 2005). Only offenders convicted of certain speci fied crimes are eligible for designation as VSPs. 2 The Board is charged with the duty of considering for VSP designation those inmates scheduled for release who have been referred by the department of co rrection or the parole commission. I.C. § 18- 8314(1); IDAPA 57.01.01.031.02. Smith was such an inmate. 3 A VSP designation is based upon the Board’s determination that the offender c ontinues to “pose a high risk of committing an offense or engaging in predat ory sexual conduct.” I.C. § 18-8303(15). The Board’s rules provide that “[a] sexual offender shall be designated as a VSP if his risk of re-offending sexually
or threat of violence is of su fficient concern to warrant the designation for the safety of the community.” IDAPA 57.01.01.171. In reaching this decision, the Board is required to “assess

2 The offenses that may result in a VSP designation include: I.C. §§ 18-1506 (Sexual Abuse of a Child Under 16); 18-1506A (Ritualized Abuse of a Child); 18-1507 (Sexual Exploitation of a Child) (added in 2006); 18-1508 (Lewd Conduct with a Minor Under 16); 18-4003(d) (Murder Committed During Rape); 18-4502 (First Degree Kidnapping for the purpose of committing rape, the infamous crime against nature, serious bodily injury upon the person kidnapped, or any lewd and lascivious act upon a child under age 16); 18-6101 (Rape (excluding subsection (1) when the offender is eighteen years of age or younger)); 18-6108 (Male Rape); 18-6602 (Incest); 18-6605 (Infamous Crime Against Nature); 18-6608 (Forcible Sexual Penetration with a Foreign Object). I.C. § 18-8314(1). Additionally, recidivists, as defined by I.C. § 18-8303(12), may be reviewed for VSP designation. Id. It is worth noting that the statutory definition for a VSP requires no showing that the offender used force or violence in the predicate offense, nor does it require a finding that the offende r represents a threat to use force or violence in the commission of future crimes. Rather, I. C. § 18-8303(15) provides the following definition: “Violent sexual predator” means a person who has been convicted of an offe nse listed in section 18- 8314, Idaho Code, and who has been determined to pose a high risk of committing an offense or engaging in pred tory sexual conduct. a Thus, any offender who has been convicted of a sexual crim e may be characterized as a VSP, if that individual is “determined to pose a high risk of committing an offense or engaging in predatory sexual conduct.” 3 The record before this Court does not reveal which of these two entities initiated the Board’s consideration of Smith for VSP designation.

3how biological, psychological, and s ituational factors, may cause or contribute to the offender’s
sexual behavior.” IDAPA 57.01.01.170. Once the Boar d determines whether to designate the offender as a VSP, it must make written findings that include a risk assessment of the offender, the reasons upon which the risk assessment is based, the Board’s determination whether the offender should be designated, and the reasons u pon which the determination is based. I.C. § 18- 8314(7);
IDAPA 57.01.01.173. Apart from submitting to a mandatory 4 psychosexual evaluation required by I.C. § 18- 8317, the offender has no opportunity to provide i nput to the Board. “The Board and the evaluator conducting the psychosexual evaluati on may have access to and may review all
obtainable records on the sexual offender to co nduct the VSP designation assessment.” IDAPA 57.01.01.153. The offender is not given notice of the information being considered by the Board, much less an opportunity to be heard as to the reliability of that information. If the Board determines that the offender is to be designated as a VSP, the offender is notif ied of the Board’s
decisio

). An offender de signated a VSP is only
entitled n by way of a copy of the Board’ s written findings. I.C. § 18-8319(1). If the Board makes a VSP designation, the offender has 14 days from receipt of the notice to seek judicial review. I.C. § 18- 8319(3)(b to challenge th e designation on two grounds: (a) The offender may introduce evidence that the calculation that led to the designation as a violent sexual predator wa s incorrectly performed either because of a factual error, because the offender disputes a prior offense, because the variable factors were improperly determined, or for similar reasons; 5 and (b) The offender may introduce evidence at the hearing that the designation as a violent sexual predator doe s not properly encapsulate th e specific case, i.e., the

I.C. § 18-8317 provides that the offender “shall submit to psychosexual evaluation.” By way of rule, the Bo s created an enforcemen t mechanism. The IDAPA rules that govern VSP designation provide: Public safety takes precedence over the decision o 4 ard ha
f a sexual offender not to coop erate with the evaluation n review. The sexual offender shall be informed that the board may designate an if he fails to cooperate with th e psychosexual evaluation process or refuses to release

rly, the Act and the Board’s rules and guidelines do not identify “variable factors.” for VSP designatio offender as a VSP records for the board’s VSP designation review.
IDAPA 57.01.01.151.

5 The Act, the Board’s rules and guidelines do not identify any form of “calculation” that may lead to designation as a VSP. Simila

4offender may maintain that the case falls outside the typical cas e of this kind and, therefore, that the offender should not be designated as a violent sexual predator. 6 I.C. § 18-8321(12). The scope of judicial revi ew is limited to “a summary, in camera review proceeding, in which the court decides only whethe r to affirm or reverse the board’s designation of the offender as a violent sexual predator.” I. C. § 18-8321(4). Thus, th e Act contemplates that judicial review will ordinarily occur without the offender having the opportunity to address the basis of the Board’s decision. The Act does provide that “[w]here the proof, whether in the form of reliable hearsay, affidavits, or offers of live testimony, creates a genuine issue of material fact as to whether the offender is a violent sexual pr edator, the court should convene a fact-finding hearing and permit live testimony.” I.C. § 18-8321(9) . At the hearing, the State bears the burden of presenting a prima facie case justifying the Board’s designation. I.C. § 18-8321(10). Despite this threshold burden of production, the offender u ltimately bears the burden of proof, as Idaho Code § 18-8 321(11) provides that “[ t]he court shall affirm the board’s determination unless persuaded by a preponderance of the evidence that it does not conform to the law or the guidel ines.”
2. The Constitutional Shortcomings The oddity lies herein: while both parties may introduce ev idence, neither party is provided with the record utilized by the Board to make its determination, except for a written summary of information relied upon by the Board a nd documents that are available to the parties by other means. I.C. § 18-8321(3). All record s that contain witness or victim names or statements, reports prepared in making parole determinations, or other “co nfidential” records are withheld from disclosure to the offender, his a t torney, and even the prosecutor, and are available only to the district court fo r the purpose of reviewing the Board’s determination. Id . The rules of evidence do not apply. I.C. § 18-8321(6). In our view, there are significant constitu tional shortcomings in the statutory procedure as a result of the lack of pro cedural due process afforded an offender. “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau , 400 U.S. 433, 437 (1971). “[C]ertainly where the State attaches ‘a badge of infa my’ to the citizen, due process

6 This provision eludes understanding. The Board’s determination of VSP status requires an evaluation of the offender’s risk of engaging in future behavior rather than evaluation of the underlying crime for which the offender was convicted.

5comes into play.” Id. (holding that state’s designation of an individual as “habitual drunkard” attaches a badge of in famy, requ iring the state to provide due pr ocess protections before applying
such an (1952)). We take it as a given t s due

process

ome more “tangible” interest that is affected or a legal right that is

a community and obtain or maintain

an offender’s “prima es his right to ity to
be hear

protected liberty interest in reputati on. Like the list of those drank excessively in Constantineau, the statutorily mandated designation of ently dangerous” changes the legal st atus of listed offenders. The registry

a special link for those sex offenders designated as VSPs. This Court has recognized “the fact unsavory label) (citing Wieman v. Updegraff , 344 U.S. 183, 191 hat the label of “violent sexual predator ” is a “badge of infamy” that necessitate protections. The high court of New York has re cognized that an individual’s private interest, his liberty interest in not being stigmatized as a sexually violent predator, is substantial. The ramificatio ns of being classified and having that information disseminated fall squarely within those cases that recognize a liberty interest where there is some stigma to one’s good name, reputation or integrity, coupled with s altered. More than “name calling by public officials,” the sexually violent predator label “is a determination of stat us” that can have a considerable adverse impact on an individual’s ability to liv e in employment. People v. David W ., 733 N.E.2d 206, 210-11 (N.Y. 2000) (citations omitted); see also People v.
Bell , 778 N.Y.S.2d 837, 843 (N.Y. Sup. Ct. 2003). The Utah Supreme Court has recently addressed this issue. State v. Briggs, 2008 WL 5191446 (Utah Dec. 12, 2008). That court concluded that the provision of Utah’s sex offender registration statute which requires the Utah Department of Correcti ons to identify ry and secondary targets” implies that the offender is curre ntly dangerous and violat procedural due process unless the offender is provided w ith notice and an opportun d as to whether he is currently dangerous. Id. at *1. The court reasoned: By including information implying that the offender is currently dangerous, Utah’s registry damages the offender’s reputation and change s his legal status, depriving him of a who “curr attaches a “badge of infamy,” officially designating listed offenders as prone to future criminality.

Id. at *8. Idaho provides a computerized sex offende r registry that is acce ssible to the public via the internet complete with photos of all sex offenders, along with their personal information including name, address, date of birth, and offens e history. I.C. § 18-8323. Furthermore, there is

6that registration brings notoriety to a person convicted of a sexual offense . . . prolong[s] the stigma attached to such convictions.” Ray v. State , 133 Idaho 96, 101, 982 P.2d 931, 936 (1999). Designation as a VSP results in conseque nces beyond simply requir ing the designee to register as a sex offender. Sex offenders need only update their information and photographs in the registry annually, while VSPs must do so every ninety days. I.C. §§ 18-8307; 18-8308. Non-VSP offenders may petition a c ourt for relief from the du ty to register after a period of ten

tion, not the fact of current dangerousness . . . [i]ndeed, the public registry

when the whole proceed essive
results equires that a pers on, whose protected rights

985); Cowan v. Bd. of Comm’rs of Fremont County , 143 Idaho 501, 512, 148 years. I.C. § 18-8310(1). On the other hand, a V SP has no right to such relief. Thus, for an offender designated as a VSP, the scarlet letters are indelible. While the duty to register as a sex offender is triggered simply by reason of conviction for a specified crime, classification as a VSP is based upon a factual determination of probable future conduct, i.e., that the offender poses a hi gh risk of committing an offense or engaging in predatory sexual conduct. I.C. § 18-8314. This distinguishes Idaho’s V SP system from a sex offender registry based solely on th e fact of conviction of a predicat e offense. As to the latter, the United States Supreme Court has concluded that sex offender registrati on laws do not violate the offender’s procedural due process rights, noti ng the offender “has already had a procedurally safeguarded opportunity to contest” the charge. Conn. Dep’t of Pub. Safety v. Doe , 538 U.S. 1, 7 (2003); see also Doe v. Tandeske , 361 F.3d 594 (9th Cir. 2004). In reaching this conclusion, the Supreme Court emphasized that Connecticut’s regi stry requirement is “b ased on the fact of previous convic explicitly states that officials have not determined that any regi strant is currently dangerous.”
538 U.S. at 4.
Under Constantineau and its progeny, procedural due process is a constitutional prerequisite to the state’s ability to designate an individual a VSP. “Only ings leading to the pinning of an unsa vory label on a person are aired can oppr be prevented.” Constantineau , 400 U.S. at 437. This Court has stated: Procedural due process ba sically r are being adjudicated, is affo rded an opportunity to be heard in a timely manner. There must be notice and th e opportunity to be heard mu st occur at a meaningful time and in a meaningful manner. Ada County Highway Dist. v. Total Success Inv.
, LLC, 145 Idaho 360, 371, 179 P.3d 323, 334 (2008) (internal quotations omitted) (citing Powers v. Canyon County , 108 Idaho 967, 969, 703 P.2d 1342, 1344 (1

7P.3d 1247, 1258 (2006); Aberdeen-Springfield Canal Co. v. Peiper , 133 Idaho 82, 91, 982 P.2d 917, 926 (1999)). In spite of the existence of well-established standards of procedural due process, Idaho’s statutory scheme for V SP designation minimizes, at every tur n, the possibility that an offender has the constitutionally required notice and opportunity to be heard. The offender is not provided notice or opportunity to be heard before the Board. At the district court level, the offender is provided only a summary of the info rmation considered by the Board, presenting little meaningful opportunity to respond to specific information considered by the Board. The offender is given his first opportunity to be heard only if he can pe rsuade the distri ct court that there is a genuine issue of material fact whether he is a VSP. In the event that the offender clears
this threshold hurdle, he then bears the burden of disproving th e propriety of the designation, all

he evidence, New York law placed ncing
evidenc

ed. Due process

at or] classification, ination is failed to comport with minimum the while being denied access to many of the documents upon which the designation may have
been based.
In People v. David W
., supra , the New York high court considered whether a sex offender had been improperly classified as a “se xually violent predator.” As is the case with Idaho’s scheme, the offender wa s not notified of the informa tion being relied upon, given a hearing or any opportunity to be heard prior to designation. Unlike Idaho, which imposes a burden on the offender to demonstrate error by a preponderance of t
the burden on the offender to demonstrat e to a reviewing court, by clear and convi e, that the designation was erroneous. The court concluded: The right to petition the sentencing court is not a substitute for an initial due process hearing because the defendant bears the burden of proving by “clear and convincing” evidence that his ri sk level should be modifi requires that the State bear the burden of proving, at some meaningful time, that a defendant deserves the classification assigned. Here, the State did not bear the burden of proof at any proceeding before a neutral fact finder. Defendant may or may not deserve a [s exually violent pred but without any notice and an opportunity to be heard before a determ made, the risk level determination made below State and Federal constitutional re quirements of due process. 733 N.E.2d at 213 (emphasis added, citation omitted). We do not question the legitimate state intere st in identifying those offenders who pose a high risk of reoffending or engaging in predat ory sexual conduct. However, the United States Constitution prohibits the state from doing so without affording the offender due process. In our

8view, Idaho’s statutory scheme violates an offe nder’s right to procedural due process by failing to provide notice an d an opportun ity to be heard at a meaningf ul time and in a meaningful

anner

appeal or is otherwise entitled to present thes e claims before this Court.
. Th

s not afforded access to the complete contents of

e rec m and by placing the burden of proof on the offender 7 at the only hearing in which he is permitted to appear. This conclusion does not end our analysis. Ra ther, we must consider whether the manner
in which the district court ha ndled the judicial review pro ceedings afforded Smith the due process which he was previous ly denied. We must furthe r determine whether Smith has
s for preserved his claim
B e district court’s actions did not cure the constitutional defects in Smith’s designation as a VSP. The State argues that the manner in which the district court conducted the judicial review proceedings afforded Smith “more process than wa s contemplated by the SOR Act” and that this “procedure was more than adequate to satisfy du e process.” The State asserts that “Smith was given notice of the information relied upon by the SOCB and was given the opportunity to
review the information.” 8 Because Smith wa
th ord before the district court, and because the governing statute specifically prohibited disclosure of critical documents, we disagree. Smith was not provided access to key documents in the sealed file which were utilized by the Board and the district court in reaching th eir respective decisions. Although the dissent suggests otherwise, the record doe s not reflect a specific offer from the district court to provide the parties access to the contents of the sealed file. We r ecognize that the distri ct court did cause presentence reports that were included within the file to be made available to the parties.

7 I.C. § 18-8321(11) mandates that the district court “shall affirm the board’s determination unless persuaded by a preponderance of the evidence that it does not conform to the law or the guidelines.” The district court was clearly mindful of the statutory burden, as it quoted the language of the statute when it concluded: “Based upon the entirety of the record submitted, this court cannot say that it is ‘persuaded by a preponderance of the evidence’ that the SOCB’s decision to designate Smith as a VSP was erroneous for either of the reasons sp ecified in § 18-8321(12).” In our view, placing the burden of proof on the individual wh ose liberty interests are at risk is inconsistent with due process requirements. See People v. David W ., 733 N.E.2d at 213. In making th is statement, we recognize that the parties have not addressed the statutory assignment of the burden of proof in this appeal. For that reason, we do not decide this case on this basis. Rather, we conclude that the statutory denial of meaningful notice and an opportunity to be heard, both before the Board and in pursuit of judicial review, requires that Smith’s designation be vacated. However, we anticipate legisla tive action to cure the constitutional infirmities of the VSP provisions of the Act and deem it appropriate to identify this additional constitutional shortcoming. 8 We do not suggest that counsel for the State has deliber ately misrepresented the record, particularly as the district court indicated that all documents in th e sealed file had been made available to the parties. We recognize that appellate counsel for each of the partie s has been challenged by their lack of access to the documents which were submitted to this Court under seal.

9However, it did so under the authorit y of I.C.R. 32, by providing access to court files, rather than
the sealed record that was the subject of these proceedings. Although the tenor of the district
court’s comments and the release of the presentence reports refl ect the court’s willingness to disregard the spirit of the nondisclosure provisions of the Act in an effort to protect Smith’s due process rights, at no time did the district cour t expressly indicate its intention to disclose
documents not otherwise availabl e to the parties upon th eir request. We are unwilling to suppose

hts is evident in comments at the

e

. court
represe nila folder about an inch thick, an inch and a half thick. e reviewed everything that is in the folder . . . Essentially, from what I can in thre

kind. There is nothing new or ent. I can’t see that there is anythi ng in the nature of, for example, witness that a district judge would deliberately vi olate the statutory mandate found in I.C. § 18- 8321(3)(a). 9 In the proceedings leading up to the evidenti ary hearing, the distri ct court inadvertently 10
mischaracterized the contents of the sealed file, stating that ther e was nothing in the sealed file that was not already in the posse ssion of Smith or his counsel or available to them by way of copies of earlier presentence investigation reports (PSIs), case files, or public records. Although the district court’s concern for Smith’s due pr ocess rig proc edings leading up to the evidentiary hearing, th e district court explicitly stated that the file
did not contain materials that were not available to Smith In proceedings occurring in advance of the evidentiary hearing, the district
nted the contents of th e sealed file as follows: Inside the envelope is a ma I hav tell, everything which is in this folder are [sic] existing criminal case records e criminal cases . . . .

. . . . There is a copy of the psychosexual evalua tion done in the statutory rape case. The long and short of it is, is that everything I can fi nd that is pegged down in these two files are existing case records of some differ statements from the prosecutor’s files or polic e officers’ files. This appears to be stuff that comes essentially from the clerk’s file.

. . . .

9 The district court’s colloquy with co unsel suggests the opposite conclusion, as the district court recognized that such information was not permitted to be disclosed: I guess the question then becomes, having looked at those materials, [Counsel], do you feel some need to peruse all the reputed underlying records? The statute supposedly – well, the statute does in fact say that I’m not supposed to do that, The thing about it, as I said earlier, there is nothing here that I think anybody hasn’t already seen.

10 In light of the district court’s evident efforts to protect Smith’s due process rights, we are of the abiding belief that the court’s misstatements were unintentional.

10So I guess what I’m telling you is it doesn ’t appear to me that there is anything that the Sex Offender Classification Board went and got separate and apart from existing documentation either in the hands of the Department of Corrections or the Parole Commission or the Cl erk of the District Court. It doe sn’t appear to me

cetera. It looks to be that all documents of that nature are that have been attached to PSI’s or materials of that type.

f Corrections or that th e Sex [sic] Offender Classification Board u and generated as a re sult of whatever their inve stigative process is. That

here is nothing that I can see in the record

s that the district court found to be si gnificant in its

nly that there is [sic] any confidential intern al documents from investigating agencies, police departments, et things I guess what I’m telling you is if ther e is a reason for secrecy here, I don’t know what it is . . . .

. . . . The thing about it, as I said earlier, th ere is nothing here that I think anybody hasn’t already seen. You know, the statut e seems to contemplate that there are going to be documents and records of a se cret nature such as things that the Department o went o t does not appear to be the case here. Thes e are all existing, hist orical record type documents.

. . . . From what I can tell, by and large it is pretty, I don’t wa nt to say innocuous, but it is fairly routine type material. T in that n ature of some sort of secret interrogations or witness statements which have not been furnished. It’s stuff right out of the case files and pretty much all the case files involving Mr. Smith.
The district court’s characterization of th e information in the sealed file as readily
available to Smith and defense counsel was inaccura te. However, as is clear from the district court’s written opinion, ther e are several item decision to uphold the VSP designation to which Smith was not provided access and could not be found in case files, PSIs, or public records. Most significantly, the seal ed file contained Smith’s 2005 psychosexual evaluation, conducted solely for the Board’s consideration in deciding whether to de signate him as a VSP. The district court stated, “There is a copy of the psychosexual evaluation done in the statutory rape case,” when describing the contents of the sealed file. There was no psychosexual evaluation prepared for use in Smith’s sentencing for the statutory rape case. Rather, the o psychosexual evaluation in the reco rd was that prepared in 2005, fo r the Board’s consideration in determining whether Smith should be designate d as a VSP upon release from incarceration. Unlike a psychosexual evaluation prepared fo r a court’s use in sentencing a sex offender under I.C. § 18-8316, the purpose of a psychosexual evaluation conducted under I.C. § 18-8317 is for “assessing [the offender’s] risk of reoffense and to determ ine whether the offender should

11be designated as a violent sexual predator” upon release fr om incarceration. Smith’s 2005 psychosexual evaluation was conducted purs uant to I.C. § 18-831 7 for the purpose of determining whether he should be listed as a VSP upon release from incarceration. This report was damaging to Smith, containing new diagnos es and test results suggesting that Smith represents a significant threat to reoffend. It is clea r that this evaluation was important to the
district court’s decision to affirm the B oard; it is also reasonable to infer that this evaluation also

y & L. 357, 370 (2006) (questioning the
d i

he resu lts of MnSOST-R tests administered by IDOC in Apri o ts, the
district

r a diagnostic instrument known as the OST-R”) administered to Smith by IDOC in April of 003, and July of 2005. The reported scores on the MnSOST was significant to the Board in reaching its determination. Thus, the fact that it was never disclosed to the parties is significant. The psychosexual evaluation was conducted by an Idaho Department of Corrections (IDOC) clinician who was exempt from psychose xual evaluator certification requirements. IDAPA 57.01.01.081. This evaluation: (1) presented Axis I and Axis II diagnoses not found in Smith’s earlier psychological evaluations; (2) su ggested that further evaluation was needed to exclude a new diagnosis of “Sexual Sadism;” (3) presented Minnesota Sex Offender Screening Tool, Revised (MnSOST-R) test results markedly higher than previous results; and (4) rejected
observations contained in an ea rlier psychological evaluation. Th ere is no mention of Smith’s previous mental health treatment in the 2005 psychosexual evaluation. Without Smith or his counsel having the opportunity to respond to, much less review, the conclusions of the psychosexual evaluator, this Court and the district court are asked to accept, at face value, the damning conclusions of this evaluation. See e.g. Robert A. Prentky, et al., Sexually Violent
Predators in the Courtroom , 12 Psychol. Pub. Pol’ a m ssibility of a psychological evaluation when the examiner cannot be examined or crossexamined about his/her methodology and diagnosis). Smith also was not provided with t l f 2000, September of 2003, and July of 2005. Regarding the MnSOST-R resul
court made the following findings:
The record assembled and considered by the SOCB contains three important documents which have a direct bearing on the central issu e, that being the degree of risk that Smith will re offend sexually, or poses a true “threat of violence.” These documents are the score sheets fo Minnesota Sex Offender Screening Tool , Revised (“MnS 2000, September of 2 -R were:
2000...............10

122003...............12 2005................16

B file

cts, coercion,

sychologi cal Evaluation considered by the SO

ing a maximum chance of sexual

ly perplexing

Smith will reoffend sexually.” The significant range of score results raises According to the April 30, 2000 Psychological Report contained in the SOC , Smith’s score of 10 on the MnSOST-R should be analyzed as follows:
This is a sixteen-item instrument us ed to measure the likelihood of a sex offender being violent and/or predat ory in his sexual criminal activity. Smith scored ten on the instrument. The cut-off point is thirteen. This score could, in fact, be higher dependent upon the details of the sexual abuse he inflicted upon the five and nine year old males when he was 15 or 16 years of age respectively. If there were multiple a commission in a public place, and/or the victims were strangers, then conceivably the score could be higher than the cut-off score. According to the August 29, 2003 P CB, Smith’s higher score of 12, should be understood as “reflecting that he is [sic] a high likelihood of reoffending.” According to the September 21, 2005 Psychosexual Evaluation, “[o]n the MnSOST-R, Smith scored 16, indicat recidivism.” The actual “assessment Detail Summary” describes the test result as “High – Refer for Commitment.”
The escalation of Smith’s Scores on the MnSOST-R is particular given [one of Smith’s counselor’s] clai m that his anti-social behavior and attitudes (and hence, his risk of reo ffense) had been in decline . . . . (emphasis added). As indicated in the emphasized language from the district court’s opinion, the district court expressly identified Smith’s MnSOST-R results as “important” in determining the “degree of risk that issues that Smith had no opportunity to respond to because neither he nor his counsel ever saw
the test results. Smith’s inability to view, much less challenge the accuracy of, the MnSOST-R results is troubling because much of the disparity in scor e results arises from a marked change in purportedly “historical / static variables.” See, e.g. , Prentky, supra , at 357 (calling into question the efficacy and accuracy of mechanistic risk ba sed assessment in sexually violent predator determinations particularly when different evaluators came to different conclusions). In 2000,
these “static” variables contributed 8 points to Smith’s scor e of 10. In 2005, the clinician who recommended Smith’s VSP designation scored the sa me static variables at 13, thus significantly contributing to Smith’s overall score of 16 and representing a maximal chance of sexual

13recidivism. The discrepancy in sc oring these supposedly objective st atic risk factor s presents the obvious question of the accuracy of t he assessment of Smith’s risk of reoffending. In our view,

urt clearl y took note of the conten ts of these records in its decision; the

actual representations of which

rocess. C. Sm

ed to present his challenges in this appeal due to the ineffective
assistan Smith’s lack of notice or opportunity to challeng e these conclusions is more than problematic; it constitutes a due process violation. Moreover, Smith was not afforded the opportunity to review confidential parole
commission notes that were included in the sealed file. Even if Smith had requested to see these notes, the statute prohibits such review. I.C. § 18-8321(3)(c). Th ese notes contain descriptions
of Smith’s behavior while incarcerated includi ng numerous disciplinary reports for fighting and assaultive behavior. Although it is unknown whet her the Board placed any weight on these documents, the district co district court’s opi nion refers to disciplinary matters not included in the summary of information provided to the parties. The “notice” requirement of procedural due process gives meaning to “the opportunity to be heard.” In order to have a meaningful oppor tunity to be heard, the offender must know what he is responding to. The district court’s relianc e on this information is significant because Smith simply could not meaningfully respond to, explain, or contest, f he had no knowledge. For these reasons, we concl ude that the proceedings before the district court did not satisfy Smith’s right to procedural due p ith is entitled to present his claims of error in this appeal, as he has demonstrated that he received ineffective assistance of counsel. In closing argument, in respons e to a question from the court, Smith’s attorney presented a number of challenges to the V SP statute and the guidelines unde r which the Board operated.
The district court declined to address those claims, finding that Smith had “affirmatively waived any challenge to the constitutionality or validity of the statutes, regulations and/or guidelines.” On appeal, the State has argued that Smith has fa iled to preserve these issues for appeal. In response, Smith asserts that he received ineffe ctive assistance of counsel below. Although we
conclude that Smith is entitl ce of trial counsel, there are several preliminary matters we must address before we directly address this claim. We must first determine whether Smith has a pr otected right to the effective assistance of counsel in an appeal from a board’s designation as a VSP. Because such an appeal is civil in nature, there is no constitutional right to effective assi stance of counsel. However, the legislature

14has granted a statutory right to counsel, which gives Smith the statutory right to effective
assistance of counsel. Notice of the Board’s de signation of an offender as a VSP includes a statement “[t]hat the offender has the right to reta in counsel and that counsel will be provided by
the court if the offender cannot a fford counsel.” I.C. § 18-8319(2)(d ). “This statutory right to counsel would be a hollow right if it did not guarantee the defendant the right to effective
assistance of counsel.” Hernandez v. State , 127 Idaho 685, 687, 905 P.2d 86, 88 (1995). Thus, this Court has stated that there is no “legitim ate basis for determining whether there has been a violation of the right to eff ective assistance of counsel guara nteed by I.C. § 19-852 differently from determining whether there has been a violation of a similar constitutional right.” Hernandez , 127 Idaho at 687, 905 P.2d at 88. Thus, we conc lude that there is a statutory right to
effective assistance of counsel in an a ppeal from the Board’s designation of a petitioner as a VSP

difficult for an appellate court examining a trial
record

nd because we believe that and that the appropriate analysis is by referen ce to the well-established standards governing such
claims under the Sixth Amendment. Whether a petitioner may raise an ineffective assistance of c ounsel claim for the first time before this Court in a case arising from judicial review of the Board’s de signation is an issue of first impression. This Court has recognized that a defendant may raise the issue of the
effectiveness of counsel from a tr ial resulting in a crim inal conviction, while cautioning that this course of action may result in applica tion of the doctrine of res judicata. Parrott v. State , 117 Idaho 272, 274, 787 P.2d 258, 260 (1990) (stating that a defendant may appeal counsel’s effectiveness at trial directly or in a post-c onviction proceeding, but he may not do both). We recognize that a claim for ineffective assistan ce of counsel usually requires an evidentiary hearing, and resolution of such claims can be in which counsel’s performance was not at issue. Carter v. State , 108 Idaho 788, 791, 702 P.2d 826, 829 (1985) (citation omitted). Smith’s argument that he can bring an ineffec tive assistance of couns el claim for the first time on appeal rests on procedur al policy grounds. If he cannot bring a claim for ineffective assistance of counsel for the first time on appeal from the district cour t’s affirmation of the Board’s designation, then there is no procedural vehicle for this claim. Because there do not appear to be any other procedural grounds for the relief Smith seeks a the record on appeal is sufficient to determine whether his claims have merit, we will consider
Smith’s claims of ineffec tive assistance of counsel in this appeal.

15We note here that Smith’s ineffective assist ance of counsel claims have opened up for review issues which might otherwise be forecl osed. We have already discussed the general constitutional infirmity of the VSP statutory sc heme and examined how it infected the district court proceedings. The district court found that Smith waived thes e challenges by failing to raise them prior to closing argument s at the evidentiary hearing. 11 Similarly, the state urges that Smith’s objection to the lack of due process at th e district court is not reviewable because the district court was never in a pos ition to make an adverse ruling on that issue, and an adverse ruling is necessary to this Court’s review. State v. Fisher , 123 Idaho 481, 485, 849 P.2d 942, 946 (1993) (citing Dunclick, Inc. v. Utah-Idaho Concrete Pipe Co. , 77 Idaho 499, 502, 295 P.2d 700, 702 (1956)). Nevertheless, we find these issues are appropria te for review in the context of evaluating the performance of Smith’s coun sel. Assuming without deciding that Smith’s counsel waived any objection to the constitution ality of the VSP designation process, we may
examine whether such a waiver amounts to ine ffective assistance of counsel. Likewise, we consider whether the absence of adverse rulings by the district court was the result of ineffective assistance of Smith’s counsel. In the course of answering these ques tions, review of the underlying constitutional issues becomes appropr iate and necessary. Thus, keeping in mind the constitutional implications of the statutory sche me and the district court’s review process, we turn now to the performa nce of Smith’s counsel. In order to successfully adva nce a claim of ineffective assi stance of counsel, Smith must show (1) counsel’s performance wa s deficient; and (2) that defi cient performance resulted in prejudice. Workman v. State, 144 Idaho 518, 525, 164 P.3d 798, 805 (2007) (citing Strickland v.

11 The district court correctly observes that constitutional rights, including due process rights, may be waived if such waiver is affirmatively demonstrated. Glengary-Gamlin Protecti ve Ass’n, Inc. v. Bird
, 106 Idaho 84, 90, 675 P.2d 344, 350 (Ct. App. 1983). This Court has often stated that “[w]aiver is a voluntary, intentional relinquishment of a known right or advantage.” See e.g. Frontier Federal Sav. & Loan Ass’n v. Douglass , 123 Idaho 808, 812, 853 P.2d 553, 557 (1993) (quoting Tiffany v. City of Payette
, 121 Idaho 396, 403, 825 P.2d 493, 500 (1992) (in turn quoting Brand S Corp. v. King
, 102 Idaho 731, 734, 639 P.2d 429, 432 (1981) )). As a corollary to this definition of waiver, this Court has repeatedly stated that there is a presumption against waiver of fundamental constitutional rights. See e.g. State v. Stevens, 126 Idaho 822, 828, 892 P.2d 889, 895 (1995); State v. Bainbridge , 108 Idaho 273, 276, 698 P.2d 335, 338 (1985); State v. Werneth , 101 Idaho 241, 243, 611 P.2d 1026, 1028 (1980) (citing State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968)); Abercrombie v. State , 91 Idaho 586, 428 P.2d 505 (1967). Given that Smith’s petition for judicial review claimed “the Due Process protections of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article One, Section Thirteen of the Idaho State Constitution” and that Smith’s attorney attempted to present a constitutiona l challenge to the Act, albeit belatedly, we decline to conclude that the record affirmatively demonstrates Smith’s “voluntarily, intentional relinquishment” of his challenge to the Act on due process grounds.

16Washington , 466 U.S. 668, 687 (1984)). Deficient perfor mance is when counsel’s behavior falls below an objective standard of reasonableness. Id. (citing Strickland , 466 U.S. at 687). There is a strong presumption that counsel’s performance is within the range of reasonable professional assistance, and the petitioner bears the burde n of proving counsel’ s ineffectiveness. Ray v. State , 133 Idaho 96, 102, 982 P.2d 931, 937 (1999) (citing Strickland , 466 U.S. at 689). In proceedings where even a fully compe tent lawyer could not be effective, a presum ption of prejudice is

approp

an ex post facto

that Sm rounds. riate without inquiry into th e actual conduct of the trial. United States v. Cronic , 466 U.S. at 648, 659-60 (1984).
Smith asserts that he received ineffective assistance of counsel on four grounds: (1)
failure to assert the claim that he was deni ed due process before the Board in the VSP designation process; (2) failure to challenge th e Board’s failure to a dopt and apply objective criteria for the designation of VSPs; (3) failure to advance due process claims regarding the
district court’s review and failure to review the evidence before the district court; and (4) failure to advance claims that his VSP designation vi olated his right not to be subject to
la w and double jeopardy. We believe that these claims merit individual treatment and conclude
th has demonstrated ineffective as sistance on the first three g i
1. Smith was prejudiced by his counsel’s failure to timely as sert Smith’s claim that he was denied due process in the VSP designation process.
The record demonstrates that counsel attempte d to raise, before the district court, the
issue o nse to questio

ailure to raise this is sue at an earlier time can only be attributed to f whether Smith was denied due process in the VSP designa tion process. In respo ning from the district court, she stated:
And we do not believe that some of the ma nners in which this statute has been set up provide for that. In particular, the hearing before the Sexual Offender Classification Board, I think, has some due process issues as well in that the person is not allowed to be present, the in formation that is presented to the board is not made, required to be made known to the person who is being evaluated . . . . Because the district court found that trial counsel waived this claim based upon the time at which this argument was presented, we find de ficient performance by trial counsel. There is simply no basis for concluding that there were stra tegic or tactical consid erations that drove the timing decision; rather, the f inadvertence or neglect. The failure to timely present this challenge falls below an objective
standard of reasonableness.

17The statutory scheme violates the offender’s procedural due process rights when he is denied meaningful notice and an opportunity to be heard befo re designation as a VSP, as explained in P art II(A)(2) of this opinion, supra . We conclude that Smith ’s trial counsel’s failure

time

lthough the dissent concludes that Smith’s due process challenge was waived and

on to ly raise this issue resulted in the district court’s finding that the issue was waived. Thus, we conclude that Smith has demonstrated prej udice resulting from trial counsel’s deficient performance.
A
th erefore is not properly before th is Court on appeal, we conclude that we may address this issue direct appeal because Smith was denied his stat utory right to effective assistance of counsel
below.
2. Smith was prejudiced by his counsel’s defi cient performance in failing to timely assert a challenge to the Board’s failure to adopt and apply objective criteria for VSP designation. The legislature created the Board to “asse ss the risk of reoffense of any offender
convicted and incarcerated for commission of a crime as set forth in section 1 8-8314, Idaho Code, t d I.C. §
18-831 nes to be used

riteria of this s ection is a violent sexual predator pr esenting a high risk of offe exp offe

owing general
characteristics of the offender, lationship of the offender to the victim, the

the provisions of the Act. I.C. § 18-8314(8). o etermine whether the offender should be designated a violent se xual predator.” 2(1). The legislature imposed the duty upon the Board to establish objective guideli
in the determination of whethe r an offender should be designated a VSP: The board shall establish guidelines to determine whether an offender who

eets the c m reoffense. The guidelines shall be es tablished with the assistance of sexual nder treatment and law enforcement professionals who have, by education, erience or training, expertise in th e assessment and treatment of sexual nders. (a) Factors to be used in establishmen t of the guidelines must be supported in the sexual offender assessment field as crit eria reasonably related to the risk of reoffense and be objective criteria that can be gathered in a consistent and reliable manner. (b) The guidelines shall include, but ar e not limited to, th e foll categories for risk assessment: seriousness of the offense, offense history, whether the offense was predatory, characteristics of the vic tim, the re number of victims and the number of violations of each victim. I.C. § 18-8314(5). Further, the le gislature authorized the Board to promulgate rules to carry out

18Smith’s attorney appears to have made at least a minimal effort to challenge the Board’s failure to implement a set of objective guideline s for VSP designations. As early as the fi rst hearing f the

statute. :

what standards a pply, first of all, in defining what

ds, we are contending that the quote, unquote guidelines which

d due

this argument would have been persua sive. The district c ourt stated that it had
“seriou ocess, observi

ble ing the specific factors liste d in the statute. Idaho Code § 18- (b). The actual guidelines adopted by the SOCB do not even , Smith’s attorney asserted “[t]hus fa r I have challenged the implementation o ” In the argument that the district co urt deemed untimely, she expanded on this claim Further, we would note that my client is also deprived of due process by the failure to apply, or the failure to set forth, first of all, the guidelines contained or as required by 18-8314 of the Idaho Code, that 18-8303 also of the Idaho Code and 57.01.01 subsection (15) of the IDAPA rules, that in failing to specify in these guidelines exactly constitutes a violen t sexual offender for purposes of status; and, secondly, by failing to set forth adequate guidelines as to how this determination may be arrived at. In other wor have been issued supposedly in response to the statute are not adequate to set forth what guides a Sexual Offender Clas sification Board in arriving at this determination. As with the preceding claim, the district cour t determined that this claim was waive to its untimely presentation. In the absence of an y conceivable strategic or tactical reason for the delayed presentation of this claim, we find that trial counsel’s performance was deficient. We also find that this deficient performan ce resulted in prejudice to Smith. First, the district court clearly viewed this issue as signif icant, indicating that but for the waiver due to timeliness, s reservations concerning the constit utional validity” of the designation pr

ng: [T]he highly subjective nature of a de termination based largely upon the SOCB’s “experience, technical competence, and specialized knowledge,” IDAPA 57.01.01.170.01.c, given that the SOR Act requi res the guidelines used by the SOCB be objective criteria that can be gathered in a consistent and relia manner, includ 8314(5)(1) – mention the nine “general categories for ri sk assessment” listed in the statute. (emphasis added). This Court has previously stated that judicial review is turned into a superfluous exercise of rubberstamping when the decision of a state board sitting in a disciplinary or quasi-judicial position relies on the “expertise, ” “experience,” and “collective knowledge” of its members on
an “ad hoc basis” rather than declaring and applying clearly articulated st andards to the cases
before it. H & V Eng’g, Inc. v. Idaho Stat e Bd. of Prof. Eng’rs & Land Surveyors , 113 Idaho

19646, 650, 747 P.2d 55, 59 (1988); Tuma v. Bd. of Nursing , 100 Idaho 74, 81, 593 P.2d 711, 718 (1979). In Tuma , we rejected the Board of Nursing’s argument that it need not further define “unprofessional conduct” when disciplining a regi stered nurse. 100 Idaho at 79, 593 P.2d at 716. The Board of Nursing unsuccessful ly argued that providing a definition was unnecessary since that board was composed of experts who were fit and capable in their own right to determine the standards of their profession from th eir personnel knowledge and experience. Id . at 81, 593 P.2d
at 718. In H & V , we similarly rejected the Board of E ngineers’ reliance on the knowledge and expertise of its members in rendering a discipli nary decision on what constituted professional “misconduct” in the absence of a clearly defi ned standards. 113 Idaho at 650, 747 P.2d at 59. Both of these cases noted the due process ramifications implicit in a board’s failure to avail itself of the opportunity to expand upon the legislativ e grounds under which its determinations are
based. H & V , 113 Idaho at 651, 7 47 P.2d at 60; Tuma , 100 Idaho at 79, 593 P.2d at 716. This is

was the case with Smith’s due process claim, w statutory ri because reliance on “the phantom of unknown standards” robs the opportunity for notice. H & V , 113 Idaho at 651, 747 P.2d at 60. We find the instant case to be analogous to Tuma and H & V and conclude that, in the absence of objective 12 and clearly defined guidelines and standards upon which Smith’s VSP designation may be evaluated, his due process ri ghts could not be protec ted by the process of judicial review. Consequently, Smith’s counsel’s deficient performance in failing to timely raise this challenge below resulted in prejudice to Sm ith. As e conclude that we may address this i ssue on direct appeal because Smith was denied his ght to effective assi stance of counsel below.
3. Smith’s counsel’s failure to assert due pro cess claims regarding the district court’s review, including the right to review the info rmation considered by the district court, constituted ineffective assistance of counsel.

12 The subjective nature of the Guidelines of the Sex Of fender Classification Board (Gui delines) in effect at the time of the Board’s consideration of Smith’s case are read ily apparent. The Guidelines defined “Violent Sexual Predator” as follows: A person who has been convicted of an offense listed in Section 18-8312, Idaho Code, and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses

. Guidelines 003.09 (emphasis added). In spite of the foregoing, the Guidelines expressly authorize the Board to disregard that definition when designating an offender as a VSP: “The Board may designate an offender as a violent sexual predator with or without a finding of a mental abnormality or personality disorder .” Guidelines 007.02.b (emphasis added).

20On appeal, Smith asserts that trial counsel was ineffective for failing to properly preserve Smith’s due process challenge to the judicial review process, in cluding Smith’s right to review
the sea court violated

we are very grateful

identifiable strategic or tactical considerations

aking its decision deprives the o ffender of meaningful notice of that

re to assert due process challenges
before t

t led file. Smith’s trial counsel asserted that the proceedings before the district his due process rights: The procedure by which this review is supposed to take place is not one that even facially provides adequate due process if you follow the sequence that’s set forth in the statute. I think that this court and counsel for the state have deavored to inject due pr ocess into these proceedings and en for that, but I think that the statute its elf is challengeable as not providing for either adequate notice or for a meaningf ul hearing which is required under the constitutional provisions whic h I have just cited earlier.
The district court concluded that this challe nge was not timely raised. As with the two preceding claims, we conclude that the absence of which might explain the timing of this belated ch allenge demonstrates that trial counsel provided deficient performance.
The district court identified the nature of prejudice resulting from the denial of access to the information upon which the Board relied, indicati ng that its “serious re servations concerning the validity of the review process” were, in part, based upon “the lack of information provided to the parties concerning the basis for the SOCB’s designation.” For the reasons stated in Part II(A)(2) of this opinion, we believe that the st atutory denial of access to the information which
the district court utilizes in m which he is attempting to challenge and conseque ntly, it deprives the offender of any meaningful opportunity to be heard. As discussed in Part II(B) of this opinion, th e sealed file containe d information that the district court found to be significant and to whic h Smith’s attorney was not privy. We are unable
to conclude that Smith has been appropriately evalua ted as presenting a risk of reoffending without affording Smith the opportunity to defend his case on the merits with knowledge of that to which he is responding. “It is significant that most of the provisions of the Bill of Rights are procedural, for it is procedure th at marks much of the difference between rule by law and rule by
fiat.” Constantineau , 400 U.S. at 436. Trial counsel’s failu he district court, including seeking access to the contents of the sealed file, resulted in
o Smith. pr ejudice

214. Smith was not prejudiced by his counsel’s fa ilure to advance the arguments that his VSP designation violated his right not to be subject to an ex post facto law or double jeopardy, or both. On appeal Smith asserts that he was prej udiced by his counsel’s failure to advance the arguments that his VSP designation violated his right not to be subject to an ex post facto law or double jeopardy, or both. Sm ith argues that the VSP designation imposes an additional

itment proceed ouble jeopard

utory scheme is so punitive either in intention to deem it “civil.” In those

sexual laring the pur punishment upon him for a crime for which he ha d already been punishe d. This argument is
without merit.
In Kansas v. Hendricks , 521 U.S. 346 (1997), the U.S. Supreme Court considered the constitutionality of involuntary commitment of i ndividuals determined to be “sexually violent predators” under the Kansas Sexually Violent Pr edator Act. As expressed by the Kansas legislature, the purpose of the act was to addr ess the risk sexually vi olent predators pose to society. Id . at 351. “As a result, the [Kansas] legislature found it necessary to establish ‘a civil commitment procedure for the long term care and tr eatment of the sexually violent predator.’”
Id . at 351-52. The Supreme Court found Kansas’s sexually violent predator comm ings to be non-punitive and civil in na ture, thus precluding a finding of any d

y or ex post facto violation. Id . at 369. There the Court stated: Although we recognize th at a civil label is not always dispositive, we will reject the legislature’s manifest intent only where a party challenging the statute e clearest proof that the stat provides th purpose or effect as to negate the State’ s limited circumstances, we will consider the statute to have established criminal proceedings for constitutional purposes.
Id . at 361 (citations omitted) (quotations omitted). Idaho’s SOR Act states that “[j]udicial revi ew of an offender’s challenge as a violent predator is civil, not cr iminal, and remedial, not adversar ial.” I.C. 18-8321(1). Dec pose of Idaho’s SOR Act, the le gislature made the following findings: The legislature finds that sexual offenders present a significant risk of reoffense and that efforts of law enforcement agen cies to protect their communities, conduct investigations and quickly apprehend offenders who commit sexual offenses are impaired by the lack of current informa tion available about i ndividuals who have been convicted of sexual offenses who live within th eir jurisdiction. The legislature further finds t hat providing public access to certain info rmation about convicted sexual offenders assists parents in the protection of their children. Such access further provides a means for organizations that wo rk with youth or other vulnerable populations to prevent sexual offende rs from threatening those

22served by the organizations. Finally, public access assists the community in being observant of convicted sexual offe nders in order to prevent them from recommit ting sexual crimes. Therefore, this state’s policy is to assist efforts of ommunities by requiring sexual local law en forcement agencies and to make certain

commitment of individuals designated sexually violent predators is a nonnitiv

ate v. Grag g, 143 Idaho 74, 137 P.3d 461 (Ct. App. 2005)

icient
erform

we conclude that the proceedings before the Board and the district court violated Smith’s right to procedural due process, this matter will be local law enf orcement agencies to protect c offenders to register with information about sexual offenders availa ble to the public as provided in this chapter. I.C. § 18-8302 (emphasis added). These legislative findings evince the inte ntion to protect the public through the
dissemination of information. Unlike Kansas ’s act, Idaho’s SOR Act does not require the confinement of those individuals designated as violent sexual predators. Rather, Idaho’s act imposes additional registration requirements to enhance public awareness of the potential danger posed by certain offenders. Given the Supreme C ourt of the United States’ determination that the involuntary pu e exercise of the state’s valid police power, we have little difficulty in concluding that the imposition of additional registration requirements for offenders deemed VSPs in Idaho is also non-punitive. This conclusion is consistent with previous rulings of this Cour t. “The purpose of Idaho’s [sexual offender] registra tion statute is not punitive but re medial . . . . [t]he fact of registration is not an additional punishment; it doe s not extend a sentence. Rather, registration provides an information system that assi sts in the protection of communities.” Ray , 133 Idaho at 101, 982 P.2d at 935-36; see also St (concluding that “Idaho’s Sexual Offender Re gistration Notification and Community Right-toKnow Act, I.C. §§ 18-8301 et seq ., and its effects, are not punitive, and therefore, do not violate
the ex post facto prohibition . . . .”). The failure to present a non-viable legal argument does not constitute def p ance. Accordingly, we conclude that Smith’s counsel’s failure to present ex post facto and double jeopardy challenges was not deficient performance.
D. We decline to reach Smith’s claim of vi olation of his due process rights on appeal. Smith asserts that this Court’s order denying him access to the sealed record on appeal violates his right to procedural due process. As

23remanded to the district court with di ’s designation as a VSP. In light of

W der it

cannot dures
afforde roce dural due process.

omm. v. McGrath
, 341 U.

rm. The district court did

o invalid statute. Until Smith has the benefit of is constitutional right to notice and an opportunity to be heard, the State may not designate him
he decision of the district court and remand this matter to
the dist

Justi rection to vacate Smith this conclusion, we need not address this claim.

III. CONCLUSION hen information upon which the VSP designati on is based is withheld from an offen
be said that there is eith er notice or a meaningful opportunity to be heard. The proce

by the statute must comport with constitutional standards of p d [F]airness can rarely be obtained by secr et, one-sided determination of facts decisive of rights. . . . [s]ecrecy is not congenial to truth-seeking and selfrighteousness gives too sle nder an assurance of rightne ss. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.
Goss v. Lopez , 419 U.S. 565, 580 (1975) (quoting Joint Anti-Fascist Refugee C S. 123, 170, 171-72 (1951) (Frankfurter, J., conc urring)). As this Court has previously stated, a “‘Kafkaesque chain of secrecy is not what the Due Process Clause contemplates.’ See F. Kafka, T HE T RIAL (1956).” H & V , 113 Idaho at 651, 747 P.2d at 60 (quoting Ridge v. Police & Firefighters Retirement & Relief Bd. , 511 A.2d 418, 425, n.11 (D.C. 1986)). The statutory scheme for VSP designation is constitutionally infi t succeed in fashioning an ad hoc remedy to the n h as a VSP. Accordingly, we reverse t
rict court with direction to vacate Smith’s designation as a VSP.
ces BURDICK and J. JONES, CONCUR

. W. JONES, J., disse nting in Part II B I respectfully dissent in the re sult, specifically Part II B of the majority Opinion. For that reason, I find it unnecessary to reach the cons titutional issue discussed in Part II A. Smith failed to raise any constitutional chal lenges to the VSP statutes for the district
court or this Court’s consideration. Smith contends that this issue was properly preserved for appeal wh en counsel addressed the constitutionality of the statut es and regulations in closing arguments. I find that this issue

24was not properly raised below, and is therefore, not properly preserved for appeal. The district
court found that Smith had improperly raised any constitutional challenges to the VSP statutes and reg

arguments to be untimely. 13 It is fundamental that this Court will not consider
issues pplies particu P.2d 934 (19 been
stated t rdinarily the appellate court will not cons ider constitutional questions not raised been said that the rule that an issue cannot be raised for the first time on appeal applies with particular force to constitutional issues or a claim that a statute is uncons titutional. Furthermore, in order to ulations, by failing to raise them prior to closing arguments at th e evidentiary hearing. That ruling was not in error. Th e trial court held that Smith had affirmatively waived his right to challenge the constitutionality and validity of the statutes by failing to raise the issue for argument or briefing. Constitutional rights, including the right to due process, may be waived if such waiver is affirmatively demonstrated. Glengary-Gamlin Protective Ass’n, Inc. v. Bird , 106 Idaho 84, 90, 675 P.2d 344, 350 (Ct. App. 1983) (citations omitted). “The matter of directing and controlling the trial of a cause, including th e arguments of counsel, to a gr eat extent lies with the sound discretion of the presiding trial judge.” Kerby v. Oregon Short Line R. Co ., 45 Idaho 636, 651, 264 P. 377, 381 (1928). The trial court, on several occasions asked Smith’s counsel directly if she had the information necessary to conduct an evidentiary hearing contesting the Board’s designation. On every occasion, Smith’s counsel an swered in the affirmative. Additionally, the
trial court asked Smith’s couns el if she was making a challe nge to the statutes on any constitutional grounds, either faci ally or as applied. Smith’s c ounsel responded that at that time she had not made any challenges to the statute. It was not until closing arguments, in response to a question from the bench, that Smith’s counsel entered into a diatribe of constitutional challenges to the statute and regulations, both faci ally and as applied to Smith. The trial court
found these
not raised in the court below and raised for the first time on app eal. This rule a larly to cons titutional issues. See Buffington v. Potlatch Corp., 125 Idaho 837, 875

94); West v. El Paso Products Co., 122 Idaho 133, 832 P.2d 306 (1992). It has
hat
O in the court below. Also, it has

13 The majority does not address Smith’s failure to timely raise any constitutional challenges. I find that Smith’s failure to timely raise any constitutional challenges prior to closing arguments waives any challenges to the statutory framework. It was within the discretion of the trial court to dictate the issues presented at trial and narrow the scope of counsel’s presentation. The trial court did not act outside of the bounds of discretion when it held that Smith’s counsel failed to timely raise this constitutional challenge. Whether an issue is untimely raised is within the discretion of the trial court. If the trial court exercises its discretion and does not address the issue, then that issue should not be addressed by this Court for the first time on appeal.

25preserve the issue for appellate review, th e constitutional issue must not only have been presented to the trial court, but the trial court must have ruled thereon.
4 C.J.S. Appeal and Error § 300 (2008).
This Court has also stated that “[t]o raise an issue on appeal, the record must contain an adverse ruling to form the basis for assignment of error and this Court will not consider or review an issue raised for the first time on appeal.” Magnuson Properties Partnership v. City of Coeur d’Alene, 138 Idaho 166, 170, 59 P.3d 971, 975 (2002). Th is Court has also stated that “[i]t is well established that in order for an issue to be raised on appeal, the record must reveal an adverse ruling which forms the basis for an assignme nt of error. Hence, issues not raised below but raised for the first time on appeal will not be considered or reviewed.” Whitted v. Canyon County Board of Commissioners, 137 Idaho 118, 121, 44 P.3d 1173, 1176 (2002) (internal citation omitted). In the presen t case, Smith’s counsel affirma tively stated that she was not making any constitutional challenge to the statute, either facially or as applied. Then in the final minutes of her closing argument made nothing more than a broa d-sweeping statement that the statutory scheme for the SOCB was unconstitutional as a denial of “due process pursuant to Article 1, and § 13 . . . of the Idaho Constituti on, and further under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the Un ited States Constitution, by failing to provide adequate notice and standards by which a person can be informed of consequences for their conduct.” The constitutionality issue was never briefed by the parties or presen ted to the district court for
consideration or decision and the State ha d no reasonable opportunity to counter any constitutional arguments. Indeed, there really were no constitutional arguments , since Smith’s counsel did nothing more than recite various co nstitutional provisions; there was no explanation

as to how these statutes allegedly vi olated the constitution or an y authority to support such a proposition. Under such circumstances, the district court was entirely correct in ru ling that the

argume

t with briefing on the matter. Smith improperly nts were untimely and absent any argument, citation of authority, briefing or a decision by the district court on the consti tutional issues, such issues ar e not preserved for appeal and review by this Court. Ther efore, I respectfully dissent in the majority’s conclusion.
The trial court did not err when it found that Smith had affirmatively waived all challenges on due process grounds to the statutes and regulations. Smith’s haphazard constitutional challenge to the st atute in closing arguments did not afford the state an opportunity to respond, nor did it provide th e lower cour

26raised not properly raised below and therefore, the
issue is

renege on its offer, and without an adverse ruling on the matter the majority engages in nothing more than a guessing game of what would have occurred this issue below, and the trial court did not err when it held the issue waived. I would
affirm the lower court and find that this issue wa s not preserved for appeal to this Court. Smith was not denied due process of la w when the district court reviewed the
Board’s determination of the VSP classification

. Smith argues that the procedures employed by the Board, where all records are sealed and not subject to review by couns el, violates his due process rights. I fully agree with the majority that the constitutionality of this statut ory scheme is questionable. However, I cannot agree that Smith was denied due process of law. At all relevant times during proceedings at the district court level, Smith was given all access to any information that he requested. The State correctly asserts that this issu e is not subject to appellate re view because there was no adverse ruling below. At no point did Smith request info rmation which was in the sealed file, and at no point did the district court deny Smith access to th e information which existed in the file. Each party was supplied with a detailed list of the documents that the Board relied on in making the classification that Smith was a VSP. Although neither party was supplie d with a copy of the psychosexual evaluation, it was in the Board’s file and availabl e for review under the district
court’s offer. 14 When the district court asked c ounsel if they required any additional information, they both responded that they ha d the information necessary to proceed on the matter. At no point was Smith denied access to the information contained in the Board’s file, nor did Smith request additional informa tion that was not in his possession. 15 I cannot agree with the majority’s finding that refuses to recognize the dist rict court’s offer at f ace value; an offer was made to allow the partie s access to the file whic h neither party accepted. It is inappropriate to suggest that the district court would

14 As noted in the majority, the psychosexual evaluation is specifically listed by the distri ct court as a document in the court’s possession. Unlike the conclusion of the majo rity, I find no evidence to indicate that Smith’s counsel was unaware that the psychosexual evaluation for the statutory rape case did not refer to the 2005 psychosexual evaluation prior to Smith’s release on the statutory rape charges. The statutory scheme specifically requires a psychosexual evaluation upon release. Additionally, Smith’s counsel conducted a lengthy examination of Smith about information revealed to the technician conducting the psychosexual evaluation in preparation for the classification board. Smith’s counsel had knowledge that a psychosexual evaluation was conducted in 2005, and that the district court had a copy of the psychosexual evaluation in connection with the statutory rape case. I cannot agree with the majority that the district court inadve rtently misled Smith’s counsel as to what psychosexual evaluation was in the sealed file. 15 Further, at no point in time has Smith indicated or alle ged that he was prepared to present any of the evidence contained in the file to refute the designation as a VSP.

2728 at the d

i ght of such a pite the indicated
i mately refused disclosure. For the foregoing reasons, I would affirm the decision of the district court.

Chief Justice EISMANN CONCURS in the dissent. istrict court level. I find this issue ina ppropriate for appellate review because there was no adverse ruling from the lower court. Although I am sympathetic to the due process analysis made by the majority and I fully agree that the statutory scheme is questionable as to its constitutionality, I am also mindful that this case is not one which is appr opriate for judicial review. The ultimate reality is that despite constitutional infirmities in the statutes, Smith was not affected or prejudiced by them because the district court did not apply them in his case. The majority questions whether the district
court’s offer constituted a willin gness to disregard the nondisclosu re provisions of the Act. However, even if such doubt exists, it does not cr eate an adverse ruling from which this Court may affirmatively state that Smith was denied acces s to these materials. The district court’s statements, at minimum, show a willingness to disclose. The key point being, Smith did not request disclosure. I cannot specula te how the district court would ha ve reacted in l request; therefore, it is inappr opriate for this Court to assu me that des

w llingness to disclose, the district court would have ulti