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Doe v. Poritz

February 22, 1995

JOHN DOE, (A FICTITIOUS NAME) INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
DEBORAH PORITZ, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT.



Wells, III, A.j.s.c.

The opinion of the court was delivered by: Wells

Civil Action

WELLS, III, A.J.S.C.

The plaintiff, John Doe, was indicted and charged with molesting two teenage boys constituting sexual assault in June of 1985. He entered into a plea agreement with the State of New Jersey for a term of imprisonment not to exceed 15 years. In or about September 1985, the plaintiff was examined by a psychologist at the Adult Diagnostic and Treatment Center (hereinafter, ADTC) in Avenel, New Jersey pursuant to R. 3:21-3. The Center determined his conduct was characterized by a pattern of repetitive and compulsive behavior. According to the plaintiff, he did not contest that determination since he knew he was to serve a term of incarceration anyway and believed he could benefit from a program of specialized treatment at the ADTC.

In February 1986, John Doe was sentenced to a ten year term of imprisonment at the ADTC in Avenel with a three year period of parole ineligibility. Plaintiff claims he fully participated in all aspects of the treatment program offered to him at ADTC. He eventually received the recommendation of his primary therapist and the Concurring opinion of two staff panels. The plaintiff was recommended to the Special Classification and Review Board for a determination of parole eligibility. The Board interviewed the plaintiff in or about October 1991, determined he was "capable of making an acceptable social adjustment," and recommended to the New Jersey State Parole Board that he be released with supervised parole. The plaintiff was subsequently released on parole in January 1992.

Plaintiff claims he complied with all provisions of his parole release, including participation in aftercare psychological treatment. His sentence and parole requirements terminated in June of 1992. He now rents an apartment and works in the community. Apparently his employer and fellow employees are aware of his past.

On October 31, 1994, Governor Christine Todd Whitman signed into law the package of bills known as Megan's Law. Chapter 133, codified as N.J.S.A. 2C:7-1 et seq.

The New Jersey State Legislature enacted Megan's Law because it determined the "danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for the public safety." N.J.S.A. 2C:7-1.a. It further determined that such a system would "provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-1.b.

Megan's Law requires persons convicted of certain sex offenses to register with the police. Registration involves notifying the police in the municipality wherein the registrant intends to reside of the following: name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, fingerprints, address of legal residence, address of any current temporary residence, date and place of employment, date and place of each conviction, adjudication or acquittal by reason of insanity, indictment number, a brief description of the crime or crimes for which registration is required, and any other information that the Attorney General deems necessary to assess risk of future commission of a crime, including criminal and correction records, nonprivileged personnel, treatment, and abuse registry records, and evidentiary genetic markers when available. N.J.S.A. 2C:7-4.b.(1), (2) & (3).

Megan's Law has and may in the future affect John Doe in the following ways: First, since a court has found his conduct was characterized as repetitive and compulsive behavior, he must register with the police in the municipality of his residency, regardless of the date of the commission of the offense or the date of conviction. N.J.S.A. 2C:7-2.b.(1). Under sections of N.J.S.A. 2C:7-2.c.(4) and N.J.S.A 7-2., he must register within 120 days of the effective date of this Act and must verify his address with the appropriate law enforcement agency every 90 days. This 90-day provision is apparently experimental in nature since the legislature has ordered that the "Attorney General shall review, evaluate and, if warranted, modify pursuant to the 'Administrative Procedures Act,'" the 90-day verification provision one year after the effective date of the Act. He is to be subjected to these registration requirements for at least 15 years. N.J.S.A. 2C:7-2.f permits the plaintiff to apply to the Superior Court 15 years after conviction or release - whichever is later - to terminate the obligation to register upon proof that he has not committed an offense within that time period and is not likely to pose a threat to the safety of others. Finally, and most significantly, John Doe may be subject to N.J.S.A. 2C:7-5. That section authorizes law enforcement agencies to release relevant and necessary information in accordance with N.J.S.A. 2C:7-6 et seq., to the public when such release is "necessary for public protection."

N.J.S.A. 2C:7-6 et seq. outlines the manner in which community notification is to be implemented. N.J.S.A. 2C:7-8 directs the Attorney General, with the aid of a statutorily defined advisory council, to promulgate guidelines and procedures for the notification required under Megan's Law. The Attorney General, after consultation with the advisory council, has developed and issued the required guidelines which are now a part of the record. The validity of those guidelines has been questioned and that issue will be discussed towards the end of this opinion. Nonetheless, the Attorney General's guidelines identify factors relevant to the risk of re-offense and flesh out the three levels of notification provided for in the statute. The levels, or "tiers", require different levels of notification which correspond to the risk of re-offense. Under Tier I the risk of re-offense is determined to be low, and so only law enforcement agencies likely to encounter the registrant are notified. At Tier II the risk of re-offense is determined to be moderate and so organizations in the community, including schools, religious and youth groups are notified. At Tier III the risk of re-offense is determined to be high and so members of the public likely to encounter the person registered are notified. Of course each level expands upon the notification given under the previous tier.

John Doe, the plaintiff herein, filed a Complaint and an Order to Show Cause on January 3, 1995. His Order to Show Cause demands that defendant Deborah Poritz, the Attorney General for the State of New Jersey, show cause why a preliminary injunction should not be granted, restraining and enjoining defendant or her agents and all law enforcement agencies under her authority from enforcing the registration and notification requirements of Megan's Law. N.J.S.A. 2C:7-1 et seq. Briefs were filed and oral argument was heard on that Order to Show Cause on January 20, 1995. Because of the complexity of the issues raised and the procedurally constrained nature of an application for a preliminary injunction, the court, sua sponte, ordered the parties to file cross motions for summary judgment. Both parties have filed the requested motions and both have submitted supplemental briefs. All sides agree that no material factual issues exist and that the case involves pure questions of law. Oral argument was scheduled for today, February 22, 1995.

The plaintiff's first amended complaint, filed on January 6, 1995, alleges that Megan's Law and the Attorney General's guidelines are unconstitutional as applied to plaintiff because they violate his rights under both the Federal and State Constitutions. Specifically, he alleges violations of the following constitutional protections: due process as provided by the Fifth and Fourteenth Amendments of the U.S. Constitution, as well as Art. 1, par. 1, of the State Constitution; violation of the ex post facto clause of the U.S. Constitution; violation of the Eighth Amendment of the U.S. Constitution and Art. 1, par. 12, of the State Constitution, both of which prohibit cruel and unusual punishment; violation of his right to privacy as created by N.J.S.A. 30:4-24.3; denial of his right to equal protection under the law as provided by the Equal Protection Clause of the U.S. Constitution and Art. 1, par. 1 of the State Constitution; and, violation of the protections against double jeopardy as provided by the Double Jeopardy Clause of the U.S. Constitution and Art. 1, par. 11 of the State Constitution. In addition to those constitutional challenges the plaintiff alleges that the State has breached the terms of his plea agreement by making additional, unnegotiated demands of him. Finally, the plaintiff alleges that the registration and notification requirements of Megan's Law as against plaintiff would constitute a legal disqualification or disability because of his conviction, in violation of N.J.S.A. 2C:51-1, thereby depriving him of civil and statutory rights, under color of state law, in violation of 42 U.S.C. § 1983 as applied to the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution.

The Ex Post Facto Clause

The plaintiff has challenged Megan's Law under the ex post facto clause of the U.S. Constitution. Since New Jersey does not define ex post facto law any more expansively than the federal courts, my analysis under federal case law would serve to dispose of a State Constitutional challenge, as well. In re Kaplan, 178 N.J. Super. 487, 429 A.2d 590 (1981).

The ex post facto clause prohibits Congress and the States from enacting a law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17 (1981); citing, Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 325-326, 18 L. Ed. 356 (1867) (footnotes omitted). "This prohibition limits the powers of the states only with regard to the imposition of criminal punishment." In re Kaplan, at 493; citing, Harisiades v. Shaughnessy,342 U.S. 580, 72 S. Ct. 512, 521, 96 L. Ed. 586 (1952). "Two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, at 964 (citations and footnotes omitted).

In the instant case, Megan's Law applies to John Doe because of acts he committed years before its enactment. It is therefore retrospective. The real focus here is on the second element. That element requires the court to determine whether the affirmative burdens imposed by Megan's Law constitute punishment in the constitutional sense or are simply "unpleasant consequences."

The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession. [DeVeau v. Braisted,363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960)]

Characterizing Megan's Law as a criminal or a civil statute does not advance our purpose here. "The notion of punishment, as we commonly understand it, cuts across the division between civil and the criminal law . . . . It is commonly understood that civil proceedings may advance punitive and remedial goals, and conversely, that both punitive and remedial goals may be served by criminal penalties." Austin v. U.S.,125 L. Ed. 2d 488, 113 S. Ct. 2801, 2805-6 (1993); citing, U.S. v. Halper, 490 U.S. 435,109 S. Ct. 1892, 1901, 104 L. Ed. 2d 487(1989). The question is therefore not whether Megan's Law imposes civil or criminal sanctions, but whether the duties imposed by the registration requirements of Megan's Law and the implications of community notification can be fairly characterized as punishment. Ibid. and fn. 7; see also fn. 6 in that case explaining the proper use of the so called Kennedy v. Mendoza-Martinez, criteria found in 83 S. Ct. 554 (1963) and U.S. v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742(1980); Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 595-6, 2 L. Ed. 2d 630 (1958); and see, Bae v. Shalala, 44 F.3d 489, 1995 WL 2537 (7th Cir., Jan 4, 1995) (No. 94-1373).

The Halper court, mentioned (supra) , had to decide whether a civil sanction constituted punishment within the context of the Double Jeopardy Clause. That analysis is useful for deciding the issue before the court today. According to the Halper court, punishment serves the twin aims of retribution and deterrence; neither of which are legitimate nonpunitive or remedial governmental objectives. Halper at 1902. "From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Ibid. The Halper Court went on to hold that the Double Jeopardy Clause bars the government from subjecting a defendant who has already been punished for his crimes, to an additional civil sanction which "may not fairly be characterized as remedial, but only as a deterrent or retribution." Ibid.

In Bae, the 7th Circuit Court further interpreted the holding of Halper. In Bae, the court had before it the issue of whether a retroactive civil debarment penalty constituted punishment as prohibited by the ex post facto clause of the U.S. Constitution. The plaintiff, a former president of a generic drug company, had been permanently barred, pursuant to the Generic Drug Enforcement Act of 1992 ("GDEA"), from providing services, in any capacity, to a person that has an approved or pending drug product application. That law was enacted after the plaintiff had pled guilty to a felony which brought him within the reach of the GDEA.

In Bae, the circuit court rejected the defendant's argument that since debarment served both remedial and punitive goals it must be characterized as punishment. Bae's argument evidently relied on the Halper court's use of the word "solely" in the Discussion leading to its holding. The circuit court's interpretation was much more pragmatic: "A civil sanction that can fairly be said solely to serve remedial goals will not fail under ex post facto scrutiny simply because it is consistent with punitive goals as well." 1995 WL 2537 at 4.

The court in Bae began its analysis of the Act by looking at the legislature's stated purpose and the Act's overall scheme. It came to the Conclusion that the Generic Drug Act serves compelling governmental interests unrelated to punishment. "The punitive effects of the [Generic Drug Enforcement Act] are merely incidental to its overriding purpose to safeguard the integrity of the generic drug industry while protecting public health." Ibid.

In applying this line of cases to Megan's Law, I find that the registration and notification provisions do not amount to punishment in the constitutional sense. To begin with, the Legislature, in the preamble to Megan's Law, made it clear that it seeks to remedy the dangers posed by recidivism among sex offenders. The law targets people who prey on others as the result of mental illness, and those whose acts target the most precious and vulnerable members of society children. State v. Howard, 110 N.J. 113, 130, 539 A.2d 1203 (1988). Aware of the devastation sex offenders cause victims and their families, the legislature found the need to set up a system of registration. That system will help law enforcement personnel identify risks and alert the public to potential dangers in their midst when notification is necessary for their protection. The primary goal of this system is to prevent sex offenses; the secondary goal is to promptly resolve incidents of sexual abuse and missing persons cases.

The goals of the law are not accomplished by means of punishment nor does the law "alter the standard of punishment which existed under prior law." See, State v. Ward, 123 Wash. 2d 488, 499, 869 P.2d 1062 (WA S. Ct.). Megan's Law does not seek to alter the behavior of sex offenders or to restrict their movement; it does not forbid them from holding jobs or becoming productive members of society; it does not impose heavy fines or penalties; and, it does not increase the term of imprisonment or parole. The cost of compliance amounts to minutes of their time per year and perhaps the cost of postage or bus fair. It only seeks to protect the public. Any punitive effects are incidental to the legislature's overriding purpose of safeguarding the public.

The legislative scheme also supports the finding that Megan's Law does not seek to punish sex offenders. The Law provides for three levels of notification. As the danger of recidivism increases, the scope of notification is expanded. If a person is found to be a low risk to society, their presence is only made known to law enforcement agencies. Those people will not be subject to the public notification provisions. The law is designed so that it is no more intrusive into an offender's life than is necessary to achieve its purpose. This scheme reflects the legislatures efforts to regulate a perceived danger and not to punish all sex offenders.

The tragedy that gave rise to Megan's Law also sheds some light on the legislative intent. When seven-year-old Megan Kanka was allegedly lured into the house of a previously convicted sex offender to be raped and killed, the community expressed outrage that a person with his history could be loose in their midst without their knowledge. Megan and her family were defenseless against an invisible enemy. Because of this and several other similar incidents, the legislature enacted this law for the specific purpose of providing parents and others with a fair warning.

History also supports the argument that registration laws are not punitive. In 1952 the New Jersey legislature enacted a law that was not very different than Megan's Law. See N.J.S.A. 2A:169A-1 et seq., repealed 20 years later by L.1971, c.231, § 1, for reasons unrelated to the issues before the court today. The "Criminal Registration Act" required persons previously convicted of narcotics violations to register with the police in the municipality of their residence. Registrants were required to carry a card evidencing the fact that they were in compliance with the law and had to show this card to the police chief in any municipality they visited with the intention to stay more than twenty-four hours. The purpose of this law was to deal with the specific problem of recidivism among drug users and dealers. No other felons had to register.

Many municipalities in New Jersey eventually enacted their own, more burdensome versions, of the State's Criminal Registration Act. This led to the State Supreme Court's decision in State v. Ulesky, 54 N.J. 26, 252 A.2d 720 (1969), holding that the State had preempted the field. Our State Supreme Court, in deciding on the validity of the municipal registration act before it, made this telling statement: "Here we are dealing with an ordinance which imposes a burden upon persons convicted of crime. (We do not mean that the requirement for registration is intended to be punitive; on the contrary, we assume the aim is solely to protect against the prospect of future criminal activity.)" Ibid. (parentheses in the original). No one could seriously argue that Megan's Law does not impose a burden; however, that burden is no more punitive today than it was in 1969. See also, In Re Petition of Carlos Santiago, 104 N.J. Super. 110, 119, 248 A.2d 701 (Law Div. 1968) (holding that the collateral consequences of having to register under the Criminal Registration Act did not increase the quality of the penal offense charged); State v. Garland, 99 N.J. Super. 383, 387, 240 A.2d 41 (Bergen Cnty Ct. 1968) (real complaint with the act is that it causes an inconvenience and a hardship - not punishment); and, State v. Ulesky, 100 N.J. Super. 287, 299, 241 A.2d 671 (1968) ("no doubt" that registration casts a burden upon registrants).

The one thing that the Criminal Registration Act did not have is a public notification provision. Plaintiff has argued that the public notification provision (i.e., Tier's II and III) makes this law punitive and would no doubt argue that notification distinguishes it from the old Criminal Registration Act. I disagree. The two laws were enacted at different times to combat different evils. The Criminal Registration Act only applied to narcotic convictions. Most such offenses are considered to be victimless crimes. It was reasonable for the legislature to believe that only marginal benefit would come from notifying the public of a registrant's presence. (In fact, it may have only served to increase a drug dealer's customer base.) In contrast, the notification provisions of Megan's Law are directly related to the evil the legislature seeks to regulate: potentially dangerous sex offenders living among an unsuspecting community. The notification provision is directly related to the regulatory purpose and is no more burdensome than is necessary to accomplish that purpose.

The last issue I will address with respect to the arguments that Megan's Law is a punishment in disguise, has to do with its placement in the statutory law books. I agree with Judge Sedwick's reasoning in the unpublished opinion/order signed on July 27, 1994, under the caption, Rowe v. Burton, Case No. A94-206 Civil (District Court of Alaska):

the court finds this argument suffers from a shortcoming similar to an argument relying on a legislative expression of purpose. It fails to focus on the substance of what the legislature has done. Placement of a statutory provision in a particular title may reflect nothing more than a perception that the placement will facilitate indexing. Here, whether the law in question is punitive or not, it is undeniably directly associated with certain criminal convictions, and it is perfectly logical to place most of it in [Title 2C]. It may be added that [Title 2C] contains many provisions which are not punitive in character.

The legislature's clear and unambiguous intent in enacting Megan's Law was to protect the public from otherwise unidentifiable dangers. The legislature did not seek to punish John Doe or others similarly situated. Any retributive or deterrent effects are merely incidental to the overriding purpose. If the heavy fines, years of imprisonment and the damage to social status caused by a conviction do not deter sex offenders, then I fail to see how Megan's Law will have any significant deterrent effect. I also believe any retribution delivered by Megan's law is minimal at best. Megan's Law therefore does not violate the ex post facto clauses of the State or Federal Constitutions.

Building on this holding, I can now address, with more brevity, the challenges that Megan's Law, as applied to John Doe, violates the ban on bills of attainder, the prohibition against cruel and ...


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