On September 14, 2004, the Oregon Supreme Court heard oral argument and took under advisement V.L.Y. v. Board of Parole, S51000, A108068. The ACLU represented V.L.Y. in the case before the Supreme Court.
V.L.Y. is a follow up to Noble v. Board of Parole (1998) in which the Oregon Supreme Court ruled that due process requires the Board to provide an evidentiary hearing to a registered sex offender before it could label that person a "predatory sex offender" (and notify the community of that label). The ACLU filed an amicus brief in Noble.
In response to Noble, the Board developed new rules by which a person could be labeled a predator based entirely on his or her past record. The person could provide a written challenge to the Board’s interpretation of his or her record, but no evidence (written or otherwise) on whether he or she was actually a predatory sex offender.
V.L.Y., who was labeled a predator despite the assessment of three qualified experts that he was not one, challenged the process on several constitutional grounds.
The Court of Appeals, in a split en banc opinion, ruled that the Board’s process was consistent with ORS 181.585, the authorizing statute, and did not violate the state nor federal constitution. Oral argument in the Supreme Court focused on petitioner’s contention that the Court of Appeals interpretation of ORS 181.585 was not only improper as a matter of statutory interpretation but rendered the statute unconstitutional on substantive due process grounds. Interpreting the statute properly, the process employed by the Board violated that statute and violated the procedural due process principles outlined in Noble.
In briefing, petitioner advanced several other constitutional challenges to the designation process which have met with little to no success in similar challenges across the country (including challenges based on ex post facto, bill of attainder, double jeopardy, cruel and unusual punishment and privacy grounds).