IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 33254 

JASON C. SMITH, 

 

 Petitioner-Appellant, 

 

v. 

 

STATE OF IDAHO, 

 

 Respondent. 

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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HEREBY WITHDRAWN 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 Court of the Fifth Judicial District 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 sexual predator (VSP). The Board 

classified Smith as a VSP. Smith sought judicial review of that decision. After conducting an 

evidentiary hearing, the district court upheld the Board’s decision. We conclude Smith’s 

designation was not constitutionally sound and, therefore, 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 the 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. 

1
babysitting. At the time of the offense, Idaho did not have a statute for male rape. Smith was 

committed to the Idaho Department of Health and 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. Ultimately, Smith was sentenced as an adult to thirty days in county 

jail and committed to the custody of the Idaho Department of Health and Welfare until the age of 

twenty-one. Prior to being sentenced, Smith was arrested for burglary. 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 violation of I.C. § 18-6101(1). The rape charge 

stemmed from a sexual relationship with a fifteen-year-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, concurrent 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 admitted to this rape only because he was required 

to complete a polygraph test. He testified that the 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 information presented to the Board. The Board 

determined that Smith was a VSP and notified him of their decision. Smith sought judicial 

review of that decision by the district court. The 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 upheld the Board’s decision. Smith 

appeals, contending that the Board, the district court, and this Court 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 

2
question 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 his 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 these flaws. We then consider Smith’s claim that 

he did not receive effective 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 Right 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 specified 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 correction 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 continues to “pose a high risk of committing an 

offense or engaging in predatory 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 sufficient 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 offender 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 offense 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 crime 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. 

3
how biological, psychological, and situational factors, may cause or contribute to the offender’s 

sexual behavior.” IDAPA 57.01.01.170. Once the Board 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 upon which the determination is based. I.C. § 18-

8314(7); 

IDAPA 57.01.01.173. 

 Apart from submitting to a mandatory4

 psychosexual evaluation required by I.C. § 18-

8317, the offender has no opportunity to provide input to the Board. “The Board and the 

evaluator conducting the psychosexual evaluation may have access to and may review all 

obtainable records on the sexual offender to conduct 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 notified of the Board’s 

decisio

). An offender designated 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 the designation on two grounds: 

 (a) The offender may introduce evidence that the calculation that led to the 

designation as a violent sexual predator was 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 does not properly encapsulate the 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 enforcement 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 cooperate with the evaluation 

n review. The sexual offender shall be informed that the board may designate an 

if he fails to cooperate with the 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

4
offender may maintain that the case falls outside the typical case 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 review is limited to “a summary, in camera review 

proceeding, in which the court decides only whether to affirm or reverse the board’s designation 

of the offender as a violent sexual predator.” I.C. § 18-8321(4). Thus, the 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 predator, 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 ultimately bears the burden of proof, as Idaho 

Code § 18-8321(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 

guidelines.” 

 2. The Constitutional Shortcomings 

The oddity lies herein: while both parties may introduce evidence, 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 and documents that are available to the parties 

by other means. I.C. § 18-8321(3). All records that contain witness or victim names or 

statements, reports prepared in making parole determinations, or other “confidential” records are 

withheld from disclosure to the offender, his attorney, and even the prosecutor, and are available 

only to the district court for 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 constitutional shortcomings in the statutory procedure 

as a result of the lack of procedural 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 infamy’ 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. 

5
comes into play.” Id. (holding that state’s designation of an individual as “habitual drunkard” 

attaches a badge of infamy, requiring the state to provide due process 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 reputation. Like the list of those 

drank excessively in Constantineau, the statutorily mandated designation of 

ently dangerous” changes the legal status 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 recognized that an individual’s 

private interest, his liberty interest in not being stigmatized as a sexually violent 

predator, is substantial. The ramifications 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 status” that can have a considerable adverse 

impact on an individual’s ability to live 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 Corrections to identify

ry and secondary targets” implies that the offender is currently dangerous and violat

 procedural due process unless the offender is provided with 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 changes 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 offender registry that is accessible 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 offense history. I.C. § 18-8323. Furthermore, there is 

6
that 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 consequences beyond simply requiring 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 court for relief from the duty 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 person, 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 VSP 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 high risk of committing an offense or engaging in 

predatory sexual conduct. I.C. § 18-8314. This distinguishes Idaho’s VSP system from a sex 

offender registry based solely on the fact of conviction of a predicate offense. As to the latter, 

the United States Supreme Court has concluded that sex offender registration laws do not violate 

the offender’s procedural due process rights, noting 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 registry requirement is “based on the fact of 

previous convic

explicitly states that officials have not determined that any registrant 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 unsavory label on a person are aired can oppr

be prevented.” Constantineau, 400 U.S. at 437. This Court has stated: 

 Procedural due process basically r

are being adjudicated, is afforded an opportunity to be heard in a timely manner. 

There must be notice and the opportunity to be heard must 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

7
P.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 VSP designation minimizes, at every turn, 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 information 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 persuade the district 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 the propriety of the designation, all 

he evidence, New York law 

placed ncing 

evidenc

ed. Due process 

ator] 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 “sexually violent predator.” As is the case with 

Idaho’s scheme, the offender was not notified of the information 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 demonstrate 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 risk 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 [sexually 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 requirements of due process. 

733 N.E.2d at 213 (emphasis added, citation omitted). 

 We do not question the legitimate state interest in identifying those offenders who pose a 

high risk of reoffending or engaging in predatory sexual conduct. However, the United States 

Constitution prohibits the state from doing so without affording the offender due process. In our 

8
view, Idaho’s statutory scheme violates an offender’s right to procedural due process by failing 

to provide notice and an opportunity to be heard at a meaningful time and in a meaningful 

anner

 appeal or is otherwise entitled to present these 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 offender7

 at the only hearing in which he is 

permitted to appear. 

 This conclusion does not end our analysis. Rather, we must consider whether the manner 

in which the district court handled the judicial review proceedings afforded Smith the due 

process which he was previously denied. We must further determine whether Smith has 

preserved his claims for

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 was contemplated by the SOR Act” and that this 

“procedure was more than adequate to satisfy due 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 their respective decisions. Although the dissent 

suggests otherwise, the record does not reflect a specific offer from the district court to provide 

the parties access to the contents of the sealed file. We recognize that the district 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 specified in § 18-8321(12).” 

In our view, placing the burden of proof on the individual whose liberty interests are at risk is inconsistent with 

due process requirements. See People v. David W., 733 N.E.2d at 213. In making this 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 legislative 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 deliberately misrepresented the record, particularly as the district 

court indicated that all documents in the sealed file had been made available to the parties. We recognize that 

appellate counsel for each of the parties has been challenged by their lack of access to the documents which were 

submitted to this Court under seal. 

9
However, it did so under the authority 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 reflect 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 court expressly indicate its intention to disclose 

documents not otherwise available to the parties upon their 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 anything in the nature of, for example, witness 

 

that a district judge would deliberately violate the statutory mandate found in I.C. § 18-

8321(3)(a).9

 

 In the proceedings leading up to the evidentiary hearing, the district court inadvertently10

mischaracterized the contents of the sealed file, stating that there was nothing in the sealed file 

that was not already in the possession 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 process rig

proc edings leading up to the evidentiary hearing, the 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 the 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 evaluation done in the statutory rape case. 

The long and short of it is, is that everything I can find that is pegged down in 

these two files are existing case records of some 

differ

statements from the prosecutor’s files or police officers’ files. This appears to be 

stuff that comes essentially from the clerk’s file. 

. . . . 

9

 The district court’s colloquy with counsel 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. 

10
 So 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 Clerk of the District Court. It doesn’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 the Sex [sic] Offender Classification Board 

u and generated as a result of whatever their investigative process is. That 

here is nothing that I can see in the record 

s that the district court found to be significant in its 

nly 

that there is [sic] any confidential internal documents from investigating agencies, 

police departments, et

things

 I guess what I’m telling you is if there is a reason for secrecy here, I don’t 

know what it is . . . . 

. . . . 

The thing about it, as I said earlier, there is nothing here that I think anybody 

hasn’t already seen. You know, the statute seems to contemplate that there are 

going to be documents and records of a secret nature such as things that the 

Department o

went o t 

does not appear to be the case here. These are all existing, historical record type 

documents. 

. . . . 

 From what I can tell, by and large it is pretty, I don’t want to say innocuous, 

but it is fairly routine type material. T

in that nature 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 the information in the sealed file as readily 

available to Smith and defense counsel was inaccurate. However, as is clear from the district 

court’s written opinion, there 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 sealed file contained Smith’s 2005 psychosexual evaluation, 

conducted solely for the Board’s consideration in deciding whether to designate 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 record was that prepared in 2005, for the Board’s consideration in 

determining whether Smith should be designated as a VSP upon release from incarceration. 

 Unlike a psychosexual evaluation prepared for 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 determine whether the offender should 

11
be designated as a violent sexual predator” upon release from incarceration. Smith’s 2005 

psychosexual evaluation was conducted pursuant to I.C. § 18-8317 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 diagnoses and test results suggesting that Smith 

represents a significant threat to reoffend. It is clear that this evaluation was important to the 

district court’s decision to affirm the Board; it is also reasonable to infer that this evaluation also 

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

d i

he results 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 psychosexual 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) suggested 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 earlier psychological evaluation. There 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 issue, that being the degree 

of risk that Smith will reoffend 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 

12
2003...............12 

2005................16 

 B 

file

cts, coercion, 

sychological 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 used to measure the likelihood of a sex 

offender being violent and/or predatory 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] claim that his anti-social behavior and 

attitudes (and hence, his risk of reoffense) 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 score 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 based 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 score of 10. In 2005, the clinician who 

recommended Smith’s VSP designation scored the same static variables at 13, thus significantly 

contributing to Smith’s overall score of 16 and representing a maximal chance of sexual 

13
recidivism. The discrepancy in scoring these supposedly objective static risk factors presents the 

obvious question of the accuracy of the assessment of Smith’s risk of reoffending. In our view, 

urt clearly took note of the contents 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 challenge 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). These notes contain descriptions 

of Smith’s behavior while incarcerated including numerous disciplinary reports for fighting and 

assaultive behavior. Although it is unknown whether the Board placed any weight on these 

documents, the district co

district court’s opinion 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 opportunity to be heard, the offender must know what 

he is responding to. The district court’s reliance 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 conclude 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 response to a question from the court, Smith’s attorney presented 

a number of challenges to the VSP statute and the guidelines under 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 failed to preserve these issues for appeal. In 

response, Smith asserts that he received ineffective 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 protected 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 assistance of counsel. However, the legislature 

14
has granted a statutory right to counsel, which gives Smith the statutory right to effective 

assistance of counsel. Notice of the Board’s designation of an offender as a VSP includes a 

statement “[t]hat the offender has the right to retain counsel and that counsel will be provided by 

the court if the offender cannot afford 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 “legitimate basis for determining whether there has been a 

violation of the right to effective assistance of counsel guaranteed 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 conclude that there is a statutory right to 

effective assistance of counsel in an appeal 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 reference to the well-established standards governing such 

claims under the Sixth Amendment. 

 Whether a petitioner may raise an ineffective assistance of counsel claim for the first time 

before this Court in a case arising from judicial review of the Board’s designation is an issue of 

first impression. This Court has recognized that a defendant may raise the issue of the 

effectiveness of counsel from a trial resulting in a criminal conviction, while cautioning that this 

course of action may result in application 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-conviction proceeding, but he may not do both). We 

recognize that a claim for ineffective assistance 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 ineffective assistance of counsel claim for the first 

time on appeal rests on procedural policy grounds. If he cannot bring a claim for ineffective 

assistance of counsel for the first time on appeal from the district court’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 ineffective assistance of counsel in this appeal. 

15
 We note here that Smith’s ineffective assistance of counsel claims have opened up for 

review issues which might otherwise be foreclosed. We have already discussed the general 

constitutional infirmity of the VSP statutory scheme and examined how it infected the district 

court proceedings. The district court found that Smith waived these challenges by failing to raise 

them prior to closing arguments at the evidentiary hearing.11 Similarly, the state urges that 

Smith’s objection to the lack of due process at the district court is not reviewable because the 

district court was never in a position 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 appropriate for review in the context 

of evaluating the performance of Smith’s counsel. Assuming without deciding that Smith’s 

counsel waived any objection to the constitutionality of the VSP designation process, we may 

examine whether such a waiver amounts to ineffective 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 questions, review of the 

underlying constitutional issues becomes appropriate and necessary. Thus, keeping in mind the 

 

constitutional implications of the statutory scheme and the district court’s review process, we 

turn now to the performance of Smith’s counsel. 

 In order to successfully advance a claim of ineffective assistance of counsel, Smith must 

show (1) counsel’s performance was deficient; and (2) that deficient 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 Protective 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 constitutional 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. 

16
Washington, 466 U.S. 668, 687 (1984)). Deficient performance 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 burden 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 competent lawyer could not be effective, a presumption of prejudice is 

approp

 an ex post facto

that Sm rounds. 

riate without inquiry into the 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 denied due process before the Board in the VSP 

designation process; (2) failure to challenge the Board’s failure to adopt 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 violated his right not to be subject to

law and double jeopardy. We believe that these claims merit individual treatment and conclude 

ith has demonstrated ineffective assistance on the first three g

1. Smith was prejudiced by his counsel’s failure to timely assert Smith’s claim that he 

was denied due process in the VSP designation process.

 The record demonstrates that counsel attempted to raise, before the district court, the 

issue o nse to 

questio

ailure to raise this issue at an earlier time can only be attributed to 

f whether Smith was denied due process in the VSP designation process. In respo

ning from the district court, she stated: 

And we do not believe that some of the manners 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 information 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 deficient performance by trial counsel. There is 

simply no basis for concluding that there were strategic or tactical considerations 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. 

17
 The statutory scheme violates the offender’s procedural due process rights when he is 

denied meaningful notice and an opportunity to be heard before designation as a VSP, as 

explained in Part 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 prejudice resulting from trial counsel’s deficient 

performance. 

 A

therefore is not properly before this Court on appeal, we conclude that we may address this issue 

 direct appeal because Smith was denied his statutory right to effective assistance of counsel 

below. 

2. Smith was prejudiced by his counsel’s deficient 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 “assess the risk of reoffense of any offender 

convicted and incarcerated for commission of a crime as set forth in section 18-8314, Idaho 

Code, t d I.C. § 

18-831 nes to 

be used

riteria of this section is a violent sexual predator presenting 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 sexual predator.” 

2(1). The legislature imposed the duty upon the Board to establish objective guideli

 in the determination of whether an offender should be designated a VSP: 

 The board shall establish guidelines to determine whether an offender who 

meets the c

reoffense. The guidelines shall be established with the assistance of sexual 

nder treatment and law enforcement professionals who have, by education, 

erience or training, expertise in the assessment and treatment of sexual 

nders. 

(a) Factors to be used in establishment of the guidelines must be supported in 

the sexual offender assessment field as criteria 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 are not limited to, the foll

categories for risk assessment: seriousness of the offense, offense history, 

whether the offense was predatory, 

characteristics of the victim, the re

number of victims and the number of violations of each victim. 

I.C. § 18-8314(5). Further, the legislature authorized the Board to promulgate rules to carry out 

18
 Smith’s attorney appears to have made at least a minimal effort to challenge the Board’s 

failure to implement a set of objective guidelines for VSP designations. As early as the first 

hearing f the 

statute. : 

 what standards apply, first of all, in defining what 

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

d due 

this argument would have been persuasive. The district court stated that it had 

“seriou ocess, 

observi

ble 

ing the specific factors listed in the statute. Idaho Code § 18-

(b). The actual guidelines adopted by the SOCB do not even 

, Smith’s attorney asserted “[t]hus far I have challenged the implementation o

” In the argument that the district court 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 violent 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 Classification Board in arriving at this 

determination. 

 As with the preceding claim, the district court determined that this claim was waive

to its untimely presentation. In the absence of any 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 performance resulted in prejudice to Smith. First, the 

district court clearly viewed this issue as significant, indicating that but for the waiver due to 

timeliness, 

s reservations concerning the constitutional validity” of the designation pr

ng: 

 [T]he highly subjective nature of a determination based largely upon the SOCB’s 

“experience, technical competence, and specialized knowledge,” IDAPA 

57.01.01.170.01.c, given that the SOR Act requires 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 risk 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 standards to the cases 

before it. H & V Eng’g, Inc. v. Idaho State Bd. of Prof. Eng’rs & Land Surveyors, 113 Idaho 

19
646, 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 registered nurse. 100 Idaho at 79, 593 P.2d at 716. 

The Board of Nursing unsuccessfully 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 their personnel knowledge and experience. Id. at 81, 593 P.2d 

at 718. In H & V, we similarly rejected the Board of Engineers’ reliance on the knowledge and 

expertise of its members in rendering a disciplinary decision on what constituted professional 

“misconduct” in the absence of a clearly defined 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 legislative grounds under which its determinations are 

based. H & V, 113 Idaho at 651, 747 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 objective12 and clearly defined guidelines and standards upon which Smith’s VSP 

designation may be evaluated, his due process rights could not be protected 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 Smith. As

e conclude that we may address this issue on direct appeal because Smith was denied his 

ght to effective assistance of counsel below. 

3. Smith’s counsel’s failure to assert due process claims regarding the district court’s 

review, including the right to review the information considered by the district court, 

constituted ineffective assistance of counsel.

 

12 The subjective nature of the Guidelines of the Sex Offender Classification Board (Guidelines) in effect at the 

time of the Board’s consideration of Smith’s case are readily 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). 

 

 

20
 On appeal, Smith asserts that trial counsel was ineffective for failing to properly preserve 

Smith’s due process challenge to the judicial review process, including Smith’s right to review 

the sea court 

violated

 we are very grateful 

identifiable strategic or tactical considerations 

aking its decision deprives the offender 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 

endeavored to inject due process into these proceedings and

for that, but I think that the statute itself is challengeable as not providing for 

either adequate notice or for a meaningful hearing which is required under the 

constitutional provisions which I have just cited earlier. 

 The district court concluded that this challenge was not timely raised. As with the two 

preceding claims, we conclude that the absence of 

which might explain the timing of this belated challenge 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, indicating that its “serious reservations 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 statutory denial of access to the information which 

the district court utilizes in m

which he is attempting to challenge and consequently, it deprives the offender of any meaningful 

opportunity to be heard. 

 As discussed in Part II(B) of this opinion, the sealed file contained information that the 

district court found to be significant and to which Smith’s attorney was not privy. We are unable 

to conclude that Smith has been appropriately evaluated 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 that 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 

prejudice o Smith. 

21
4. Smith was not prejudiced 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. 

 On appeal Smith asserts that he was prejudiced 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. Smith 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 had already been punished. 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 individuals determined to be “sexually violent 

predators” under the Kansas Sexually Violent Predator Act. As expressed by the Kansas 

legislature, the purpose of the act was to address the risk sexually violent 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 treatment 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 nature, thus precluding a finding of any d

y or ex post facto violation. Id. at 369. There the Court stated: 

Although we recognize that a civil label is not always dispositive, we will reject 

the legislature’s manifest intent only where a party challenging the statute 

provides the clearest proof that the stat

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 review of an offender’s challenge as a violent 

predator is civil, not criminal, and remedial, not adversarial.” I.C. 18-8321(1). Dec

pose of Idaho’s SOR Act, the legislature made the following findings: 

The legislature finds that sexual offenders present a significant risk of reoffense 

and that efforts of law enforcement agencies to protect their communities, conduct 

investigations and quickly apprehend offenders who commit sexual offenses are 

impaired by the lack of current information available about individuals who have 

been convicted of sexual offenses who live within their jurisdiction. The 

legislature further finds that providing public access to certain information about 

convicted sexual offenders assists parents in the protection of their children. 

Such access further provides a means for organizations that work with youth or 

other vulnerable populations to prevent sexual offenders from threatening those 

22
served by the organizations. Finally, public access assists the community in being 

observant of convicted sexual offenders in order to prevent them from 

recommitting sexual crimes. Therefore, this state’s policy is to assist efforts of 

ommunities by requiring sexual 

local law enforcement agencies and to make certain 

 commitment of individuals designated sexually violent predators is a nonnitiv

ate v. Gragg, 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 enforcement agencies to protect c

offenders to register with 

information about sexual offenders available to the public as provided in this 

chapter. 

I.C. § 18-8302 (emphasis added). 

 These legislative findings evince the intention 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 Court 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 Court. “The purpose of 

Idaho’s [sexual offender] registration statute is not punitive but remedial . . . . [t]he fact of 

registration is not an additional punishment; it does not extend a sentence. Rather, registration 

provides an information system that assists 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 Registration 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 violation 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

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

 W der it 

cannot dures 

afforde rocedural 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 designation is based is withheld from an offen

be said that there is either notice or a meaningful opportunity to be heard. The proce

d by the statute must comport with constitutional standards of p

[F]airness can rarely be obtained by secret, one-sided determination of facts 

decisive of rights. . . . [s]ecrecy is not congenial to truth-seeking and selfrighteousness gives too slender an assurance of rightness. 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., concurring)). As this Court has previously 

stated, a “‘Kafkaesque chain of secrecy is not what the Due Process Clause contemplates.’ See F. 

Kafka, THE TRIAL (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

n t succeed in fashioning an ad hoc remedy to the

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., dissenting in Part II B 

I respectfully dissent in the result, specifically Part II B of the majority Opinion. For that 

reason, I find it unnecessary to reach the constitutional issue discussed in Part II A. 

Smith failed to raise any constitutional challenges to the VSP statutes for the district 

court or this Court’s consideration. 

Smith contends that this issue was properly preserved for appeal when counsel addressed 

the constitutionality of the statutes and regulations in closing arguments. I find that this issue 

24
was 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 consider 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 unconstitutional. Furthermore, in order to 

 

ulations, by failing to raise them prior to closing arguments at the evidentiary hearing. 

That ruling was not in error. The 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 the arguments of counsel, to a great 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 answered in the affirmative. Additionally, the 

trial court asked Smith’s counsel if she was making a challenge to the statutes on any 

constitutional grounds, either facially or as applied. Smith’s counsel 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 facially and as applied to Smith. The trial court 

found these

not raised in the court below and raised for the first time on appeal. This rule a

larly to constitutional 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. 

25
preserve the issue for appellate review, the 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). This 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 assignment 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 present case, Smith’s counsel affirmatively 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 broad-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 Constitution, and further under the Fifth, Sixth, Eighth and 

Fourteenth Amendments to the United 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 presented to the district court for 

consideration or decision and the State had 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 constitutional provisions; there was no explanation 

as to how these statutes allegedly violated the constitution or any authority to support such a 

proposition. Under such circumstances, the district court was entirely correct in ruling 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 constitutional issues, such issues are not preserved for appeal and 

review by this Court. Therefore, 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 statute in closing arguments did not afford the state an opportunity 

to respond, nor did it provide the lower cour

26
raised 

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 was 

 not preserved for appeal to this Court. 

Smith was not denied due process of law 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 counsel, violates his due process rights. I fully agree with the 

majority that the constitutionality of this statutory 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 issue is not subject to appellate review because there was no adverse 

ruling below. At no point did Smith request information which was in the sealed file, and at no 

point did the district court deny Smith access to the 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 supplied with a copy of the 

psychosexual evaluation, it was in the Board’s file and available for review under the district 

court’s offer.14 When the district court asked counsel if they required any additional 

information, they both responded that they had 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 information that was not in his possession.15 I cannot agree with the 

majority’s finding that refuses to recognize the district court’s offer at face value; an offer was 

made to allow the parties access to the file which 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 district court as a document in 

the court’s possession. Unlike the conclusion of the majority, 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 inadvertently 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 alleged that he was prepared to present any of the evidence 

contained in the file to refute the designation as a VSP. 

27
28

at the d

ight 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 inappropriate 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 appropriate 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 willingness to disregard the nondisclosure provisions of the Act. 

However, even if such doubt exists, it does not create an adverse ruling from which this Court 

may affirmatively state that Smith was denied access 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 speculate how the district court would have reacted in l

request; therefore, it is inappropriate for this Court to assume that des

w llingness to disclose, the district court would have ulti