State v. Briggs

1 Section 77-27-21.5 has been amended six times between 2000
and 2007. 	For simplicity and because none of the amendments are
material to our analysis, we refer to the 2007 version of the
statute throughout this opinion.
2008 UT 83
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060671
Plaintiff and Appellee,
v.
F I L E D
Steven Arthur Briggs,
Defendant and Appellant. 	December 12, 2008
---
Third District, Salt Lake
The Honorable Judith Atherton
No. 051903287
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix, Paul
G. Amann, Asst. Att’ys Gen., Salt Lake City, for
plaintiff
Lori J. Seppi, Teresa L. Welch, Salt Lake City, for
defendant
---
On Certification from the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Steven Arthur Briggs was convicted for failure to
register as a sex offender in violation of Utah Code section 77-
27-21.5 (“registration statute” or “statute”). 1 	Briggs
challenges the constitutionality of the statute and the
sufficiency of the evidence supporting his conviction. 	First,
Briggs argues that the statute violates the non-delegation
doctrine of the Utah Constitution because it delegates
legislative power to the Department of Corrections (“DOC”), an

No. 20060671 	2
executive agency. 	Second, Briggs argues that the evidence
presented at trial was insufficient to support a conviction that
he “knowingly” failed to register. 	Finally, Briggs argues that
the statute violates his right to procedural due process because
it designates him as a currently dangerous sex offender without
notice and an opportunity to be heard on the validity of that
designation. 	We conclude that Briggs’s non-delegation and
insufficiency of the evidence claims are without merit. 	As to
Briggs’s procedural due process argument, we hold that the
provisions of the registration statute requiring him to register
and requiring the DOC to publish information related to his prior
convictions, current address, appearance, and other similar
information do not violate his right to procedural due process.
Thus, we affirm his conviction for failure to register as a sex
offender. 	However, we hold that the provision in the
registration statute that requires the DOC to publish his primary
and secondary targets, implying that he is currently dangerous,
violates his right to procedural due process unless the DOC
provides him with notice and an opportunity to be heard as to
whether he is currently dangerous. 	Accordingly, the DOC may not
publish information implying that Briggs is currently dangerous
unless it proves as much at a hearing where Briggs has notice and
an opportunity to be heard on the validity of that designation.
BACKGROUND
¶2 	In 1986, Briggs was convicted of sexual abuse of a
child and served fifteen years in prison. 	A few days prior to
Briggs’s release from prison in 2002, a DOC officer presented him
with a form that included Briggs’s physical description, previous
address, information on his conviction, and scheduled release
date. 	The form that Briggs was presented with provides, in large
print at its center,
I have been notified of my responsibility to
register as a sex offender as required by
Utah Code Annotated 77-27-21.5. 	I have also
been notified of my continuing responsibility
to annually register with the Utah State
Department of Corrections and again within 10
days of every change of my place of
habitation.
¶3 	The DOC officer requested that Briggs sign the form,
but Briggs refused. 	An investigator with the DOC, Agent Pepper,
then met with Briggs to read and explain the form to him. 	Agent
Pepper explained to Briggs that he needed to sign the form and
that it was against the law to refuse to sign it. 	Briggs

2 Utah Code Ann. § 77-27-21.5(11) (Supp. 2007).
3 	No. 20060671
replied, “You’ll have to file charges against me if you can find
me.” 	After steadfastly refusing to sign the form, Briggs was
sent back to his housing unit. 	Agent Pepper noted on the
registration form “Refused to sign @ 0820 hrs.”
¶4 	At the time of his scheduled release, Briggs was again
given an opportunity to sign the form, but he again refused.
Agent Pepper filed a case against Briggs, charging him with
failure to register as a sex offender, and Briggs was taken from
the prison directly to Salt Lake County Jail. 	The charge was
dismissed on motion of the district attorney, who reasoned that
signing the sex offender registration form is not a requirement
of the registration statute or an element of failure to register
as a sex offender. 	Briggs was released.
¶5 	After his release, Briggs moved to a Salt Lake City
hostel and then, a month later, moved to a second Salt Lake City
address where he has lived since. 	There is no indication that
Briggs was hiding his whereabouts from the DOC; in fact, he
included his first address in a letter he sent to the DOC
Department of Adult Probation and Parole to inquire about
property he lost when he was first incarcerated. 	Additionally,
Briggs spoke with and gave his name to a DOC officer who
contacted him at his residence and to police officers who visited
him at his residence while investigating neighborhood crimes.
During this period of time, Briggs was under the impression that
he was registered as a sex offender because his attorney showed
him his profile on the registry website during an office visit.
However, the registry lacked his current address information, a
statutory registration requirement. 2
¶6 	In May 2005, Briggs came to the attention of an FBI
agent, who, after an investigation, determined that Briggs was
not registered as required by the statute. 	The FBI agent
contacted the DOC and verified that, although Briggs was supposed
to register, he was not registered at that time. 	The agent
located Briggs at his residence using a subscription database and
arrested him for failure to register as a sex offender.
¶7 	At the bench trial, Briggs moved the court to declare
the registration statute unconstitutional. 	He asserted that the
statute is unconstitutional because it violates the non-
delegation doctrine of the Utah Constitution, violates his right
to procedural due process, and is an ex post facto law.

3 538 U.S. 1 (2003).
No. 20060671 	4
¶8 	The trial court denied the motion in a memorandum
decision. 	As for Briggs’s non-delegation claim, the court ruled
that the DOC
has not been given the authority to determine
if failure to register will constitute
criminal behavior, or even what must be
disclosed to the [DOC], and the [DOC] does
not have the authority to determine the
penalty for violation. . . . 	The [DOC] is
charged simply with the task of setting up
the procedures for registration to ensure
that the process of registration is orderly.
The trial court, therefore, held that the registration statute
does not violate the non-delegation doctrine of the Utah
Constitution.
¶9 	As to Briggs’s procedural due process claim, the trial
court held that the United States Supreme Court’s decision in
Connecticut Department of Public Safety v. Doe “already ruled
that Utah’s and other similar states’ sex offender registration
requirements do not violate federal due process requirements.” 3
It further held that “Defendant must show that Utah’s
Constitution affords him greater protections than does the U.S.
Constitution,” and that it was “not persuaded that Defendant’s
procedural due process rights in the present circumstance are
greater under the Utah Constitution than they are under the U.S.
Constitution.” 	The trial court dismissed Briggs’s ex post facto
claim using the same reasoning, holding “that Defendant has not
presented any reason why Utah would afford greater ex post facto
protections than the federal Constitution.”
¶10 	At the close of argument, Briggs moved for a directed
verdict, alleging that the prosecution had presented insufficient
evidence to support a finding that Briggs had “knowingly” failed
to register. 	The trial court denied the motion and found Briggs
guilty of failing to register as a sex offender. 	Briggs appeals
his conviction, and we have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j) (Supp. 2008).

4 State v. Holm, 2006 UT 31, ¶ 10, 137 P.3d 726.
5 State v. Goodman, 763 P.2d 786, 786 (Utah 1988) (quoting
State v. Walker, 743 P.2d 191, 193 (Utah 1987)).
5 	No. 20060671
STANDARD OF REVIEW
¶11 	A challenge to the constitutionality of a statute
presents a question of law, which we review for correctness. 4 	In
assessing a claim that there was insufficient evidence to support
a trial court’s verdict, we “sustain the trial court’s judgment
unless it is ‘against the clear weight of the evidence, or if
[we] reach[] a definite and firm conviction that a mistake has
been made.’” 5
ANALYSIS
¶12 	We will first discuss Briggs’s argument that the
registration statute violates the non-delegation doctrine
inherent in article V, section 1 of the Utah Constitution, the
separation of powers clause, by impermissibly delegating
legislative authority to the DOC. 	Then we will discuss his claim
that the State failed to produce sufficient evidence to support
the trial court’s finding that he “knowingly” failed to register.
Finally, we will discuss his argument that his rights to
procedural due process were violated because the statute does not
provide for a hearing on the question of whether he is currently
dangerous.
I. 	THE REGISTRATION STATUTE DOES NOT VIOLATE THE NON-DELEGATION
DOCTRINE
¶13 	Briggs challenges the constitutionality of the
registration statute, arguing that it impermissibly delegates
legislative power to the DOC. 	This, he claims, violates the non-
delegation doctrine inherent in article V, section 1 of the Utah
Constitution, the separation of powers clause, which provides,
The powers of the government of the State of
Utah shall be divided into three distinct
departments, the Legislative, the Executive,
and the Judicial; and no person charged with
the exercise of powers properly belonging to
one of these departments, shall exercise any
functions appertaining to either of the

6 Utah Const. art. V, § 1.
7 Robinson v. State, 2001 UT 21, ¶ 14, 20 P.3d 396.
8 See Salt Lake City v. Ohms, 881 P.2d 844, 848 (Utah 1994).
9 State v. Gallion, 572 P.2d 683, 689 (Utah 1977) (holding
that the Utah Controlled Substances Act impermissibly delegated
the power to define a controlled substance and the punishment for
the crime of possession of a controlled substance to the attorney
general); see also State v. Johnson, 137 P. 632, 634 (Utah 1913)
(holding that this court will not engage in “judicial
legislation” by defining the elements of a crime).
10 Utah Code Ann. § 77-27-21.5(1)(d) (Supp. 2007).
11 Id. (emphasis added).
No. 20060671 	6
others, except in the cases herein expressly
directed or permitted. 6
¶14 	We have held that the Utah Constitution “restrict[s]
the ability of the legislature to delegate legislative functions
to administrative agencies.” 7 	While the legislature is not
required to expressly authorize every administrative action,
procedure, or rule, it is prohibited from delegating “core” or
“essential” legislative power or functions. 8 	We have held that
the “definition of a crime and the precise punishment therefor
[are] essential legislative functions, which cannot be
transferred.” 9
¶15 	Briggs asserts that the registration statute violates
the non-delegation doctrine because the DOC defines what
constitutes “failure to register.” 	In support, Briggs points out
that the statute merely provides that “‘[r]egister’ means to
comply with the rules of the department made under this
section.” 10 	Briggs argues that because the DOC prescribes the
rules governing registration, it defines the elements of the
crime of failure to register.
¶16 	Briggs is incorrect. 	Every element of failing to
register is defined by the legislature in the statute. 	The
legislature defined “failure to register” as failing to “comply
with the rules of the department made under this section,”
meaning section 77-27-21.5. 11 	In that section, the legislature

12 Id. § 77-27-21.5(1)(e).
13 Id. § 77-27-21.5(5)–(8).
14 Id. § 77-27-21.5(9).
15 Id. § 77-27-21.5(11).
16 Id. § 77-27-21.5(9).
17 Id. § 77-27-21.5(11).
18 See id. § 77-27-21.5.
19 Utah Admin. Code r. 251-110-3(2) (2008).
7 	No. 20060671
very precisely defines who must register, 12 when they must
register, 13 for how long they must register, 14 and the information
they must provide to be registered. 15 	Subsection (9) requires
sex offenders to register annually and within ten days of every
change of habitation. 16 	Subsection (11) requires sex offenders
to provide their name, any aliases by which they might be known,
residential address, physical description, age, vehicle
information, current photograph, and the names of any institution
of higher education in which they are enrolled or employed. 17
Thus the statute describes in great detail the requirements of
“registration.” 	The statute does not give the DOC discretion to
add or remove any of these requirements; it merely confers
discretion to prescribe procedures for sex offenders to fulfil
the statutory requirements.
¶17 	Briggs points out that he was, in fact, arrested for
failing to sign the form, and he notes that the statute does not
contain any requirement that he sign the form. 18 	Utah
Administrative Code rule 251-110-3(2), a DOC-made rule, provides
that “[r]egistrants shall sign the Utah Sex Offender Registration
Form and the Sex Offender Address Form upon each request.” 19
Briggs asserts that he cannot be convicted for failure to comply
with this rule because it is not found in the statute.
¶18 	But Briggs was not convicted for failure to sign the
form. 	In fact, the first case against Briggs was dismissed after
the district attorney noted that signing a form was not a
requirement of the statute. 	Briggs became “unregistered” only
after he moved to Salt Lake City and failed to provide his
address to the DOC within ten days. 	After moving a second time,
he again failed to provide the DOC with his updated address. 	If
Briggs had met all of the statutory registration requirements but

No. 20060671 	8
merely failed to sign the form, he would not be unregistered, and
the State has not claimed otherwise. 	Although the form
prescribed by the DOC in Utah Administrative code rule
251-110-3(2) provides a convenient way for sex offenders to
comply with the registration law, failure to use or sign the form
is not a crime. 	Thus, the statute does not give the DOC
authority to define any element of the crime, and the DOC, by
using the form, has not exceeded its authority in that respect.
Therefore, we affirm the trial court’s holding that the
registration statute does not violate the non-delegation doctrine
of the Utah Constitution.
¶19 	We now turn to Briggs’s claim that the evidence
presented against him at trial was insufficient to support his
conviction for failure to register as a sex offender.
II. 	INSUFFICIENT EVIDENCE
¶20 	Briggs argues that the trial court erred by convicting
him because there was insufficient evidence to show that he
“knowingly” failed to register under the registration statute.
He argues that certain facts demonstrate that, subsequent to
leaving prison, he believed that he was in fact registered. 	For
example, he sent correspondence to the DOC, which included his
first Salt Lake City address, to request information about
property he lost when he was first incarcerated. 	He received
repeated visits from law enforcement officers at his residence,
and he gave them his name. 	During a visit with his attorney, his
attorney showed him the registry, including Briggs’s photo and
profile.
¶21 	But the record clearly shows that Briggs was informed
of his duty to provide the DOC with up-to-date address
information and that he failed to do so. 	The form that Agent
Pepper read aloud to Briggs before his release clearly notified
him of his responsibility to send his updated address and other
information to the DOC annually and every time he changed
addresses. 	Agent Pepper explained that Briggs needed to sign the
form and that it was against the law to refuse to do so. 	Briggs
replied, “You’ll have to file charges against me if you can find
me.” 	Even if Briggs’s refusal is viewed in the best possible
light--meaning that he only refused to sign but not to complete
the statutory requirements of registration--he was clearly
informed that failure to update the DOC with his address every
time he moved would be a chargeable offense. 	He expressed his
indifference that his failure to comply could result in charges
being filed against him. 	And although he lived in two different

20 Utah Const. art. I, § 7.
21 U.S. Const. amend. V.
9 	No. 20060671
residences following his release from prison, Briggs never
provided an updated address to the registry.
¶22 	In light of the undisputed record, it is clear that
Briggs knowingly refused to comply with his responsibility to
register. 	Briggs’s assertion that he did not want or need to
sign the form or that he believed he was registered after leaving
the prison, does not outweigh the testimony of Agent Pepper, who
explained the requirements to him. 	The verdict, therefore, was
not “against the clear weight of the evidence.” 	Having addressed
Briggs’s separation of powers argument and his insufficiency of
the evidence argument, we now turn to his argument that the
registration statute violates his right to procedural due
process.
III. 	PROCEDURAL DUE PROCESS
¶23 	Briggs argues that the registration statute violates
his right to procedural due process because it labels him as
“currently dangerous” without providing a hearing to determine
whether he is, in fact, currently dangerous. 	We hold that the
provisions of the registration statute that require him to
register and that require the DOC to publish information related
to his prior convictions, current address, appearance, and other
similar information do not violate his right to procedural due
process. 	But to the extent that the registry implies that Briggs
is currently dangerous without affording him a hearing on the
accuracy of that designation, his right to procedural due process
is violated.
A. 	Resolving Constitutional Issues With Reference to the Federal
Constitution and the Utah Constitution
¶24 	Both the federal Constitution and the Utah Constitution
contain provisions safeguarding an individual’s right to due
process of law. 	The Utah Constitution provides that “[n]o person
shall be deprived of life, liberty or property, without due
process of law.” 20 	The Fifth Amendment to the federal
Constitution also provides that “[n]o person shall be . . .
deprived of life, liberty, or property, without due process of
law.” 21 	While the text of the two provisions is identical, we do
not presume that federal court interpretations of federal
Constitutional provisions control the meaning of identical

22 State v. Tiedemann, 2007 UT 49, ¶ 37, 162 P.3d 1106.
23 See, e.g., State v. Larocco, 794 P.2d 460, 464-65, 467-71
(Utah 1990) (plurality opinion) (holding that the search and
seizure provisions of the Utah Constitution provided broader
protection than those in the federal Constitution and concluding
that the search was reasonable under the federal Constitution but
not under the Utah Constitution); see also State v. DeBooy, 2000
UT 32, ¶ 12, 996 P.2d 546.
24 Tiedemann, 2007 UT 49, ¶ 33 (holding that the order in
which we address state and federal Constitutional provisions
turns, in part, on “the way in which such issues have been framed
by the parties”).
25 E.g., State v. Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988)
(holding that “choosing to give the Utah Constitution a somewhat
different construction [than the federal Constitution] may prove
to be an appropriate method for insulating the state’s citizens
from the vagaries of inconsistent interpretations given to the
fourth amendment by the federal courts”).
26 Bracy v. Gramley, 520 U.S. 899, 904 (1997) (holding that
the Due Process Clause of the Fourteenth Amendment, through which
the federal Constitution’s protections are applied to the states,
establishes a constitutional floor, but not a uniform standard);
West v. Thomson Newspapers, 872 P.2d 999, 1007 (Utah 1994).
No. 20060671 	10
provisions in the Utah Constitution. 22 	In fact, we have not
hesitated to interpret the provisions of the Utah Constitution to
provide more expansive protections than similar federal
provisions where appropriate. 23
¶25 	The order in which we address textually similar
constitutional provisions--state before federal or vice versa--
depends upon several factors and requires a case-by-case
resolution. 	Often the parties will frame their arguments
entirely in terms of either the Utah Constitution or the federal
Constitution. 24 	In some instances, resolving the case using the
Utah Constitution renders the clearest result, and so we will
resolve the case with reference only to the Utah Constitution. 25
¶26 	Nevertheless, the protections in the federal
Constitution provide a constitutional floor, which, if Utah’s
Constitution or laws provide a lesser level of protection,
renders interpretation of Utah’s Constitution unnecessary. 26 	In
other words, if the challenged state action violates the federal
Constitution, we need not reach the question of whether the Utah

27 See Gray v. Dep’t of Employment Sec., 681 P.2d 807, 816,
819, 820 (Utah 1984); see also Kentucky Dep’t of Corrs. v.
Thompson, 490 U.S. 454, 460 (1989) (holding that this analysis
applies to claims brought under the Due Process Clause of the
federal Constitution) overruled in part on other grounds, Abner
v. Dir., TDCJ-CID, 2006 U.S. Dist. LEXIS 36830.
28 We do note, however, that we have previously held as
follows with respect to due process analysis under the federal
and Utah constitutions:
Utah’s constitutional guarantee of due
process is substantially the same as the due
process guarantees contained in the Fifth and
Fourteenth amendments to the United States
Constitution. 	Therefore, our analysis of
questions concerning procedural due process
under the due process provisions of the
United States and Utah constitutions are
[sic] also substantially the same.
Bailey v. Bayles, 2002 UT 58, ¶ 11 n.2, 52 P.3d 1158 (citations
and internal quotation marks omitted).
11 	No. 20060671
Constitution provides additional protection; we may instead
resolve the case with reference only to the federal Constitution.
¶27 	Such is the case here. 	Briggs argues that we should
examine the registration statute using the federal model, but
that we should hold that the Utah Constitution provides a higher
level of protection for Utah’s citizens. 	Under the federal
procedural due process analysis, he asserts, the government must
provide a constitutionally adequate process before it deprives
him of an interest in life, liberty, or property. 27 	He argues
that the registration statute deprives him of his liberty
interest in his reputation. 	Because we hold that under federal
procedural due process Briggs is entitled to a hearing prior to
the DOC’s publishing any information related to his current
dangerousness, it is unnecessary to reach the question of whether
the Utah Constitution also requires the DOC to provide a hearing
before publishing information related to his current
dangerousness. 28
B. 	Deprivation of a Protected Liberty Interest
¶28 	Under the Due Process Clause of the federal
Constitution, the government may not deprive individuals of their
liberty interest in reputation without due process of law.

29 400 U.S. 433, 437 (1971).
30 Id. at 434 n.2.
31 Id. at 436.
32 Id. at 434 n.2.
33 Id. at 437.
34 424 U.S. 693, 708 (1976); see also Jensen v.
Redevelopment Agency, 998 F.2d 1550, 1558 (10th Cir. 1993) (“To
be successful on their claim for deprivation of a liberty
interest in their reputations, plaintiffs must allege and
establish that there was information published that was false and
stigmatizing. 	Moreover, it is necessary that the alleged
stigmatization be entangled with some further interest.”
(citations and internal quotation marks omitted)).
No. 20060671 	12
1. 	Damage to Reputation, When Accompanied by a Change in Legal
Status, Constitutes a Deprivation of an Individual’s Liberty
Interest
¶29 	In Wisconsin v. Constantineau, the United States
Supreme Court held that “[w]here 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.” 29 	In Constantineau, a statute authorized certain
local officials or spouses of affected individuals to post in
retail liquor stores the name of individuals who engaged in
“excessive drinking” and became “dangerous to the peace of any
community.” 30 	The statute forbade the sale or gift of alcohol to
the individuals whose names had been posted. 31 	The plaintiff in
Constantineau, whose name was posted on such a list, challenged
the statute on procedural due process grounds because the statute
did not provide notice or a hearing before individuals’ names
could be posted. 32 	The Supreme Court held that the statute was
unconstitutional because it contained no provision for notice and
a hearing before the state was permitted to attach a “badge of
infamy” to the plaintiff. 33
¶30 	In Paul v. Davis, the Court clarified that damage to
reputation alone is insufficient for a procedural due process
claim without some further showing that the state action has
“deprived the individual of a right previously held under state
law.” 34 	Therefore, the government must provide constitutionally

35 See Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972).
36 In addition, we note that Briggs has not claimed that the
registration statute violates his right to substantive due
process; Briggs asserts only that it violates his right to
procedural due process. 	Substantive due process and procedural
due process are fundamentally different. 	Importantly, the
remedies that a plaintiff may seek differ under the two theories.
McKinney v. Pate, 20 F.3d 1550, 1558, 1560 (11th Cir. 1994). 	The
remedies for violations of substantive due process include
damages to compensate for the deprivation or injunctive relief to
prevent further deprivation. 	Id. at 1557-58. 	The remedies for
violations of procedural due process include damages or a
constitutionally adequate procedure. 	Id. at 1560. 	In this case,
Briggs has asserted that he is entitled to an additional
procedure--an evidentiary hearing where he would have an
opportunity to prove that he is no longer dangerous. 	His
proposed remedy--and, therefore, his asserted constitutional
deficiency--is strictly procedural. 	Briggs did not make a
substantive due process argument to the trial court, nor has he
made the argument to us on appeal, and, consequently, it is not
properly before us. 	We therefore do not decide today whether any
aspect of the registration statute violates substantive due
(continued...)
13 	No. 20060671
adequate process before it deprives individuals of a reputational
interest that affects their legal status. 35
2. 	Briggs Argues That the Registration Statute Damages His
Reputation and Changes His Legal Status, and that He Is,
Therefore, Deprived of a Liberty Interest
¶31 	Briggs asserts that the registration and notification
provisions of the statute violate his procedural due process
rights because he is listed on the registry without a hearing on
whether he is currently dangerous. 	He argues that the
registration and publication of his information label him as a
current danger to the community who is likely to reoffend. 	This
official designation potentially exposes him to vigilantism,
police surveillance, ostracism, physical violence, and
discrimination in housing and employment. 	Briggs argues that for
these reasons, he is entitled to a hearing to determine whether
he is currently dangerous.
¶32 	Briggs does not carefully differentiate between those
provisions of the registration statute implying current
dangerousness and those that only enumerate his past convictions,
current address, appearance, and other similar information. 36 	We

36 (...continued)
process.
37 Utah Code Ann. § 77-27-21.5(13)(a)(ii) (Supp. 2007).
38 Webster’s New College Dictionary 1465 (2007).
No. 20060671 	14
take care to distinguish between them. 	We will separately
analyze each component of the statute to determine whether it
violates Briggs’s right to procedural due process.
3. 	The Registration Statute Deprives Briggs of a Liberty
Interest in Reputation
¶33 	The Utah registration statute requires the DOC to
publish two distinct types of information--information that
implies that listed offenders are currently dangerous and
information that does not. 	Most of the information published on
the registry, including the offender’s prior convictions, current
address, appearance, and other similar information relates to the
offender’s prior convictions or simply lists vital information,
and does not impermissibly opine on the offender’s present
likelihood of committing a crime. 	The DOC’s publication of
information related to appearance, address, and other similar
information, standing alone, does not imply that the listed
offender is currently dangerous.
¶34 	But one section of Utah’s registration statute does
require the DOC to publish information implying that the listed
offender is currently dangerous. 	Section 77-27-21.5(13)(a)(ii)
requires the DOC to publish information related to the offender’s
“primary and secondary targets.” 37 	Neither the registration
statute nor the registry defines what constitutes a “primary
target” or a “secondary target.” 	Webster’s New College
Dictionary defines “target” as “an objective; goal” or “someone
or something that is the focus of attention, interest, etc.” 38
If the registry entry for a registered offender lists “minor
females” under the heading “primary target,” it implies that the
offender’s current goal, focus of attention, or interest is minor
females. 	Even if the DOC derives the listed offender’s primary
target by reference to the offender’s past victims, the label is
troubling in that it implies that the offender is presently
focused on repeating past crimes with similar victims. 	Anyone
reading the registry would likely conclude that the offender’s
primary target is the DOC’s prediction regarding the offender’s
next victim.

39 Id. § 77-27-21.5(1)(f), (10)(c)(ii).
15 	No. 20060671
¶35 	In addition to primary target information, the Utah
registration statute requires the DOC to publish information on
the offender’s secondary targets. 	While primary targets is
troubling because it implies future dangerousness, the undefined
nature of the term “secondary targets” raises even more concerns.
We presume that the offender’s primary targets are derived from a
description of the victim of the offender’s past offense, but we
are unable to discern how the DOC identifies the offender’s
secondary targets. 	This lack of structure for identifying
secondary targets raises additional due process concerns because
the offender does not even know what facts are relevant for
determining secondary targets.
¶36 	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
protected liberty interest in reputation. 	Like the list of those
who drank excessively in Constantineau, the statutorily mandated
designation of “currently dangerous” changes the legal status of
listed offenders. 	The registry attaches a “badge of infamy,”
officially designating listed offenders as prone to future
criminality.
C. 	Constitutionally Adequate Process
¶37 	The State first argues that offenders are not entitled
to a hearing on current dangerousness because, whether currently
dangerous or not, they are still required to register if they
have been convicted of one of the offenses enumerated in Utah
Code subsections 77-27-21.5(1)(f), (10)(c)(ii). 	Second, the
State argues that offenders received all the process that is due
when they are convicted of one of the enumerated offenses at a
full and fair trial.
1. 	The State Argues That Current Dangerousness Is Irrelevant to
Whether Briggs Must Register Because the Registration Statute
Requires All Sex Offenders to Register Without Regard to Current
Dangerousness
¶38 	The State argues that Briggs is not entitled to a
hearing because the fact he seeks to establish in that hearing--
that he is not currently dangerous--is irrelevant to whether he
must register under the statute. 	In fact, the registration
statute requires offenders to register solely on the basis of
their conviction of one or more of the enumerated offenses. 39
The statute does not require that only currently dangerous

40 538 U.S. 1, 7-8 (2003).
41 Id. at 4-6.
42 Id. at 7-8.
43 Id. at 7.
44 Id. at 5 (internal quotation marks omitted).
No. 20060671 	16
offenders register. 	Therefore, the State correctly notes, even
if Briggs is adjudicated non-dangerous, he is still required to
register under the terms of the statute.
¶39 	The State relies on Connecticut Department of Public
Safety v. Doe in which the United States Supreme Court rejected a
similar challenge to Connecticut’s sex offender registration
law. 40 	The plaintiff in that case, a convicted sex offender,
argued that his right to procedural due process was violated
because he had not had a hearing to determine whether he was
currently dangerous before being listed on the registry. 41 	As is
the case here, the Connecticut registration statute required all
convicted sex offenders to register without regard to whether
they were currently dangerous, and thus it provided no hearing.
The Supreme Court rejected the plaintiff’s challenge, holding
that “any hearing on current dangerousness is a bootless
exercise” because current dangerousness was irrelevant to the
statutory registration requirement and the content of the
registry. 42 	The only relevant fact was the plaintiff’s prior
conviction--a fact that he had already had a procedurally
safeguarded opportunity to contest at trial. 43 	Indeed, the
Connecticut sex offender registry did not purport to predict the
current dangerousness of any registered sex offender, and it
contained a disclaimer that Connecticut “has made no
determination that any individual included in the registry is
currently dangerous. 	Individuals included within the registry
are included solely by virtue of their past conviction record and
state law.” 44
¶40 	The State argues that under Connecticut Department of
Public Safety, Briggs is not entitled to a hearing on his current
dangerousness because current dangerousness is not a statutorily
enumerated criterion of registration. 	According to the State,
under Utah’s registration statute, the only criterion that need
be met in order for registration to be required is that an
individual has been convicted of one of the offenses enumerated
in subsections 77-27-21.5(1)(f) or (10)(c)(ii), and, therefore,
as in Connecticut Department of Public Safety, an inquiry into

45 Id. at 7.
17 	No. 20060671
current dangerousness would be irrelevant. 	Therefore, the State
argues, the content or message of the registry on which the
individual’s name will be listed is irrelevant.
2. 	The State Argues That Even If the Registration Statute
Deprives Offenders of a Liberty Interest in Reputation, They Have
Received Constitutionally Adequate Procedure at a Full and Fair
Trial
¶41 	The State argues that, to the extent the registry
deprives offenders of their liberty interest in reputation, the
trial at which they are convicted of the underlying offense is
constitutionally adequate process. 	The Court in Connecticut
Department of Public Safety held that a hearing on whether the
plaintiff in that case was currently dangerous was unnecessary
because the registration requirements under Connecticut’s statute
“turn on an offender’s conviction alone--a fact that a convicted
offender has already had a procedurally safeguarded opportunity
to contest.” 45 	Thus, the State argues, Briggs has already been
given constitutionally adequate procedure at his trial for the
underlying offense, the conviction for which requires him to
register.
3. 	Under Connecticut Department of Public Safety, Briggs Is Not
Entitled to Additional Procedure Before the DOC Publishes
Information Related to His Past Convictions, but He Is Entitled
to Additional Procedure Before the DOC Publishes Information
Implying That he Is Currently Dangerous
¶42 	We agree, in part, with the State’s arguments. 	We
agree that Connecticut Department of Public Safety is applicable
to this case, and that, under that case, the registration and
notification provisions requiring publication of offenders’ prior
convictions, current address, appearance, and other similar
information are constitutional. 	Listed offenders have already
had a procedurally safeguarded opportunity to contest their
conviction at trial, and no more procedure is required before the
DOC may publish that information. 	The DOC’s publication of
information related to appearance, address, and other similar
information, standing alone, does not imply that any listed
offender is currently dangerous. 	Both the Utah statute and the
Connecticut statute list this type of information. 	But Utah’s
registration statute is different from the statute in Connecticut
Department of Public Safety in one key respect--Utah’s statute
requires the DOC to publish information implying that the listed

46 Id. at 8 (emphasis added).
47 Id. at 7.
48 The State’s reading of Connecticut Department of Public
Safety--that a hearing is required only where the fact to be
determined at the hearing is relevant to the statutorily
enumerated registration criteria and that the message conveyed by
the registry is irrelevant to the question of whether a hearing
is required--does not comport with the Supreme Court’s citation
with approval of Wisconsin v. Constantineau in that same case.
Id. at 7. 	As noted above, the statute in Constantineau
authorized the government to post the plaintiff’s name in liquor
stores, damaging her reputation without providing her an
opportunity to contest the relevant facts. 	Constantineau, 400
U.S. at 434 n.2. 	On its face, the statute did not require any
judicial determination that the plaintiff engaged in “excessive
drinking.” 	Id. 	But the Supreme Court in Constantineau held that
the message conveyed by posting the plaintiff’s name in liquor
retail stores was “a stigma or badge of disgrace.” 	Id. at 436.
As is the case here, the fact to be determined at the hearing in
Constantineau was irrelevant to the statutorily enumerated
criteria allowing an individual’s name to be posted.
Nevertheless, the Supreme Court held that the plaintiff was
entitled to a hearing because the fact to be determined at the
requested hearing was relevant to the message conveyed by the
posting.
No. 20060671 	18
offender is currently dangerous. 	Yet the offenders have not had
an opportunity to be heard on the validity of that designation.
¶43 	In Connecticut Department of Public Safety, the Supreme
Court held that “[p]laintiffs who assert a right to a hearing
under the Due Process Clause must show that the facts they seek
to establish in that hearing are relevant to the statutory
scheme.” 46 	The Court found that current dangerousness was
irrelevant to Connecticut’s statutory scheme because current
dangerousness was not among the statutorily enumerated criteria
for who must register and because the registry itself did not
imply and, in fact, specifically disclaimed that Connecticut had
determined that any listed individual was currently dangerous. 47
In other words, current dangerousness was irrelevant both to the
statutorily enumerated requirements of registration and to the
content or message of the registry. 48 	Because the Connecticut
statute and registry referred only to past convictions, a hearing
on current dangerousness in that case was irrelevant. 	The State
argues that Connecticut Department of Public Safety mandates that
we reach the same result here. 	We disagree. 	Indeed, Connecticut

49 Utah Code Ann. § 77-27-21.5(13)(a)(ii).
50 Utah’s registration statute requires the DOC to post a
disclaimer on the website informing the public that
(a) the information contained on the site is
obtained from sex offenders and the
department does not guarantee its accuracy;
(b) members of the public are not allowed to
use the information to harass or threaten sex
offenders or members of their families; and
(c) harassment, stalking, or threats against
sex offenders or their families are
prohibited and doing so may violate Utah
criminal laws.
Utah Code Ann. § 77-27-21.5(22).
The website, however, contains the following additional
disclaimers:
The information contained on this site does
not imply listed individuals will commit a
specific type of crime in the future, nor
does it imply that if a future crime is
committed by a listed individual what the
nature of that crime may be and the
Department makes no representation as to any
offender’s likelihood of re-offending.
Utah Department of Corrections--SONAR--Sex Offender Notification
and Registration, http://corrections.utah.gov/asp-bin/sonar.asp.
19 	No. 20060671
Department of Public Safety specifically provides that plaintiffs
are entitled to a hearing if the facts they seek to establish in
the hearing are relevant to the statutory scheme.
¶44 	Such is the case here. 	As noted above, section 77-27-
21.5(13)(a)(ii) of Utah’s registration statute implies that
listed individuals are currently dangerous by requiring the DOC
to publish offenders’ “primary and secondary targets.” 49
¶45 	Like the registry in Connecticut Department of Public
Safety, Utah’s registry also contains a disclaimer, but Utah’s
disclaimer does not effectively dispel the implication of current
dangerousness. 	The Utah registry’s disclaimer provides that
“[t]he information contained on this site does not imply listed
individuals will commit a specific type of crime in the future,
nor does it imply that if a future crime is committed by a listed
individual what the nature of that crime may be.” 50 	While it
disclaims the DOC’s ability to predict specifically which crime
listed offenders will commit, it intimates that the offenders
will commit some kind of crime in the future. 	Unlike the clear

51 538 U.S. at 5 (internal quotation marks omitted).
52 Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 53, 73 P.3d
334 (quoting State v. Lopes, 1999 UT 24, ¶ 18, 980 P.2d 191).
No. 20060671 	20
and unambiguous disclaimer in Connecticut Department of Public
Safety--“[Connecticut] has made no determination that any
individual included in the registry is currently dangerous” 51 --
the Utah registry’s disclaimer does not effectively dispel the
impression that the listed individuals are currently dangerous.
¶46 	Thus the question of current dangerousness is highly
relevant to the content or message of the registry and thus
relevant to Utah’s statutory scheme. 	And the trial at which the
offenders were convicted of an underlying offense does not
provide a procedurally safeguarded opportunity to contest the
fact of their current dangerousness. 	Thus they have not had
notice and an opportunity to be heard on the accuracy of that
designation.
¶47 	When ruling on the constitutionality of a statute,
“‘the general rule is that statutes, where possible, are to be
construed so as to sustain their constitutionality. 	Accordingly,
if a portion of the statute might be saved by severing the part
that is unconstitutional, such should be done.’” 52 	We hold,
consistent with Connecticut Department of Public Safety, that
those provisions of the registration statute requiring the DOC to
publish information related to Briggs’s prior convictions,
current address, appearance, and other similar information are
constitutional, and no further process is required. 	We therefore
affirm Briggs’s conviction under Utah Code section 77-27-21.5 for
failure to register as a sex offender. 	But we further hold that
section 77-27-21.5(13)(a)(ii), requiring the DOC to publish
Briggs’s primary and secondary targets and thereby implying that
he is currently dangerous, violates his right to procedural due
process unless the DOC provides him a hearing. 	The DOC may not
publish information implying that Briggs is currently dangerous
unless it proves as much at a hearing where Briggs has notice and
an opportunity to be heard on the validity of that designation.
CONCLUSION
¶48 	We hold that Briggs’s sufficiency of the evidence and
non-delegation claims are without merit. 	We further hold that
the provisions of the registration statute that, without
providing Briggs a hearing, require him to register and that
require the DOC to publish information relating to his prior
convictions, current address, appearance, and other similar

21 	No. 20060671
information do not violate his right to procedural due process.
Accordingly, we affirm his conviction for failure to register as
a sex offender. 	However, we hold that section 77-27-
21.5(13)(a)(ii) of the registration statute, requiring the DOC to
publish Briggs’s primary and secondary targets and thereby
implying that he is currently dangerous violates his right to
procedural due process unless he is given a hearing as to whether
he is currently dangerous. 	Accordingly, we affirm Briggs’s
conviction but reverse the trial court’s ruling as to the
constitutionality of those portions of the registration statute
requiring the DOC to publish, without according him a hearing,
information implying that he is currently dangerous. 	We remand
for proceedings consistent with this opinion.
---
¶49 	Justice Wilkins and Justice Nehring concur in Associate
Chief Justice Durrant’s opinion.
---
DURHAM, Chief Justice, concurring:
¶50 	I concur in the result of the majority opinion, and
have no quarrel with its analysis of the federal due process
question. 	I believe, however, that in addressing the federal
constitutional challenge before the state constitutional
challenge, the opinion overlooks the proper order of analysis.
See, e.g., West v. Thomson Newspapers, 872 P.2d 999, 1006 (Utah
1994).
¶51 	Conceptually, there will be no claim of a violation of
federal rights requiring redress if state law prohibits the
challenged action. 	See, Hans Linde, E Pluribus -- Constitutional
Theory and State Courts, 18 Ga. L. Rev. 165, 178 (1984). 	Thus,
if a state statute, common law rule, or constitutional provision
is dispositive of a claim before us, federal analysis need not be
undertaken as part of a “dual sovereignty” approach. 	Cf., Robert
Utter, Swimming in the Jaws of the Crocodile: 	State Court
Comment on Federal Constitutional Issues when Disposing of Cases
on State Constitutional Grounds, 63 Tex. L. Rev. 1025, 1047
(1985) (“[W]hen the state court finds that the state
constitutional provision condemns the challenged conduct . . .
the state constitution will have resolved the issue in
controversy; analysis of the federal provision will not be
necessary to the case.”).

No. 20060671 	22
¶52 	The failure to undertake independent state analysis in
cases where state law is argued contributes to a paucity of
precedent and the absence of an independent and adequate state
ground for our holding. 	This result is occasionally thrust upon
us by parties who fail to raise state constitutional questions,
see Brigham City v. Stuart, 2005 UT 13, ¶¶ 12-14, 122 P.3d 506,
rev’d., 547 U.S. 398 (2006), but I think it is unfortunate when
we embrace it ourselves.
---
¶53 	Justice Parrish concurs in Chief Justice Durham’s
opinion.