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ARTWAY v. AG OF NEW JERSEY

February 28, 1995

ALEXANDER A. ARTWAY, Plaintiff,
v.
THE ATTORNEY GENERAL OF NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE; and THE CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, N.J., Defendants.



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 ORIGINAL ON FILE WITH CLERK OF THE COURT

 This matter comes before the Court on plaintiff, Alexander A. Artway's motion for emergent, temporary and injunctive relief from enforcement of New Jersey's Sexual Offender Registration Act, commonly known as "Megan's Law." Defendants, the Attorney General of New Jersey and the Superintendent of the New Jersey State Police, in lieu of an answer and in opposition to plaintiff's motion, have moved for dismissal of plaintiff's Complaint on the ground that it contains no cognizable cause of action upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

 FACTUAL CONTEXT

 In 1971, a jury found plaintiff guilty of sodomy (N.J.S.A. 2A:143-1). In 1975 plaintiff was sentenced to imprisonment for a maximum term of twenty (20) years. *fn1" At his sentencing, the trial judge found that plaintiff's conduct was "characterized by a pattern repetitive, compulsive behavior." Plaintiff did not challenge that determination. He was imprisoned at the New Jersey State Prison Farm at Rahway, the Diagnostic Unit, which is now known as the Adult Diagnostic and Treatment Center ("ADTC").

 Despite his case being reviewed several times by the Special Classification Review Board, plaintiff was never referred to the State Parole Board for parole consideration. In 1978, plaintiff was transferred to the Rahway State Prison because he was found to lack proper involvement and participation in the ADTC treatment program. On March 13, 1992, plaintiff was resentenced under the new code of criminal justice *fn2" and committed to the custody of the Commissioner of Corrections for a period of twenty (20) years with credit for time served. His resentencing was based on a redesignation of his original offense as sexual assault. Upon completion of his sentence, plaintiff was released from prison in 1992.

 Megan's Law, enacted on October 31, 1994, was a legislative response to public outcry in New Jersey following the brutal murder of a young girl. Megan's Law was named after a seven-year-old child, Megan Kanka, who was raped and murdered by a twice-convicted sex offender who lived across the street from Megan's home, unbeknownst to Megan or her parents. The public outcry which resulted from that child's plight led to the enactment of New Jersey's Sexual Offender Registration Act.

 Under the terms of New Jersey's Sexual Offender Registration Act, a person who has completed a sentence for conviction on certain designated offenses is required to register if, at the time of sentencing, his *fn3" conduct was found to be "characterized by a pattern of repetitive and compulsive behavior". P.L. 1994 C. 133, § 2.b. (1). The individual must register with the chief law enforcement officer of the municipality in which he resides within one hundred and twenty (120) days of the effective date of the Act, or by February 28, 1995. P.L. 1994 C. 133, § 2.b.(2). The registrant must give his name, Social Security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary residence, and date and place of employment. Id. at § 4.b.(3). He must verify his address every ninety (90) days, notify the municipal law enforcement agency when he moves, and re-register with the law enforcement agency of any new municipality to which he moves. Id. at § 2.d.-e., § 4.c.

 After registration, the registering agency forwards the registrant's information, as well as any additional information it may have -- such as fingerprints, genetic markers, a brief description of the criminal act of which the registrant was convicted, and any other information "necessary to assess the risk of re-offense"--to the County Prosecutor of the county in which the registrant was prosecuted. Id. at § 4.c. The Prosecutor forwards the information to the Division of State Police for inclusion in a central registry and notifies the County Prosecutor of the county in which the registrant plans to reside. Id. at § 4.c.-d.

 The information compiled as a result of registration is available for use by law enforcement agencies of New Jersey, the United States, and of other states. The registration information itself is not open to public inspection. However, law enforcement agencies are authorized to release "relevant and necessary information concerning registrants when . . . necessary for public protection." Id. at § 4-6.

 The Prosecutor of the county in which the registrant is expected to reside must consider the registration information and, in consultation with the Prosecutor of the county in which the registrant was convicted, make a determination as to whether the registrant poses a low, moderate, or high risk of re-offense. P.L. 1994, c.128, § 3.d.(1). In making that determination, the Prosecutor is required to consider a non-exclusive list of statutory factors, as well as factors included in the Attorney General's Guidelines promulgated pursuant to the Act. Id. at § 3 a.-b.

 The three classifications concerning the likelihood of re-offense, labeled Tier 1, Tier 2, and Tier 3, respectively, each carry with them different notification provisions. When the risk of re-offense is low (Tier 1), the Prosecutor must notify law enforcement agencies likely to encounter the registrant. Id. at § 3.c.(1). When the risk is moderate (Tier 2), the Prosecutor, working with local law enforcement agencies, must notify schools, licensed day care centers and summer camps, as well as certain other designated agencies and community organizations involved in the care or supervision of children or the support of battered women and rape victims. Id. at § 3.c. (2). When the risk of re-offense is determined to be high (Tier 3), law enforcement agencies are required to notify members of the public likely to encounter the registrant. Id. at § 3.c. (3).

 Under Tier 2 and Tier 3, the form of notification includes the registrant's name, a recent photograph, physical description, the offense, address, place of employment or schooling, as well as a description and the license plate number of the registrant's vehicle. See Attorney General's Guidelines for Law Enforcement for Notification to Local Officials and/or the Community of the Entry of a Sex Offender into the Community. Those agencies and persons notified under Tier 2 are informed that the information is intended to assist them in the protection of children, battered women or rape victims under their care, and that it is not to be shared with the general public. Every notification is accompanied by a warning as to the consequences of acts of vandalism, threats, and assaults against a registrant or any associates of the registrant, and a warning as to the criminal sanctions which would follow from such conduct. Id. at 13-14.

 The defendants contend that Megan's Law constitutes little more than an extension of pre-existing New Jersey law allowing the public access to information concerning the criminal justice system in the State. Plaintiff, on the other hand, contends that the purpose and/or effect of Megan's Law is punitive, and constitutes a badge of ignominy.

 Defendants argue that Megan's Law and its notification provisions are intended to be regulatory, and result from a legislative intent to assist law enforcement in identifying and alerting the public to the likely danger of re-offense by convicted sexual offenders. The Law was apparently enacted to address "the danger of recidivism caused by sex offenders, offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness." P.L. 1994, c. 133, § 1.a. As such, because Megan's Law is designed to protect the public and provide a public awareness whereby members of the community might be more vigilant in protecting themselves and their children, defendants contend that the Law is legitimate and that any encroachment on registrants' constitutional interests is purely incidental and nugatory.

 RIPENESS

 The threshold matter which must be addressed by the Court is whether this matter is ripe for judicial determination.

 Ripeness is a concern implicated by the doctrine of judicibility, deriving from the constitutional limitations placed upon Article III courts in recognition of the prudential considerations which sometimes mandate judicial restraint. Flast v. Cohen, 392 U.S. 83, 97, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). The ripeness doctrine itself, existing under the umbrella of judicibility, is intended "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements" over matters which have not yet any practical impact on the parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967).

 The issue of ripeness revolves around timing. When, as in the instant case, a constitutional challenge to a statute predates the actual enforcement of that statute against the challenger, the ripeness issue becomes particularly important. See generally Regional Rail Reorganization Act cases, 419 U.S. 102, 140 (1974). When it is inevitable that enforcement of the statute against the challenger will occur, the court must look at the potential for hardship to either party by the court's refusal to hear the matter. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2757 (2d ed. 1983). See also Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974) ("It is not necessary that [plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights."); Pennsylvania v. West Virginia, 262 U.S. 553, 593, 67 L. Ed. 1117, 43 S. Ct. 658 (1923) (plaintiff need not "await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.").

 In the instant case, while plaintiff has not yet suffered injury at the hands of Megan's Law, he is compelled to register prior to midnight on this date, February 28, 1995, or else face prosecution for a fourth-degree felony. In the Court's view, plaintiff's position is adequately perilous to satisfy the ripeness doctrine. *fn4"

 A majority of states have already adopted legislation requiring that sex offenders register with local law enforcement agencies subsequent to their release from prison. Thirty-eight states have such provisions, although most do not provide for the general dissemination of the registrant's name, address, and/or criminal record to the general public. See Lisa Anderson, Demand Grows to I.D. Molesters: States Weigh Children Safety Versus Offenders' Rights, CHI. TRIB., Aug. 15, 1994, at 1. At least three (3) other states besides New Jersey have enacted legislation as expansive -- in terms of the release to the public of information concerning sexual offenders now residing in the community -- as is New Jersey's. See, e.g., Alaska Stat. §§ 12.63.010, 18.65.087 (Supp. 1994); La. Rev. Stat. an. at 15:543-549 (West 1994); 1990 Wash. Laws Ch. 3, at 101-1406 (codified in various sections of the Washington Revised Code). The manner in which these similar statutes have been reviewed and survived, or otherwise, constitutional scrutiny shall assist in guiding this Court in its determination of whether New Jersey's Megan's Law passes or fails constitutional muster.

 While plaintiff has asserted several grounds for challenging the constitutionality of Megan's Law, the major avenues of attack which appear to have particular viability, and demand particular application in this case are: (a) the ex post facto clause of the United States Constitution *fn5" ; (b) the prohibition against cruel and unusual punishment as set forth in the Eighth Amendment *fn6" ; (c) the constitutional right to privacy as recognized in the United States Constitution; the prohibition against Bills of Attainder; and (e) the Double Jeopardy Clause. *fn7" The Court shall focus on these challenges, inter alia, in determining the constitutionality of Megan's Law.

 The Court's analysis suggests that the dispositive issue among the challenges raised is the ex post facto clause. However, due to the nature of the instant challenge and the wideranging implications of Megan's Law, the Court will consider all of the constitutional provisions asserted as they bear upon this Court's determination that Megan's Law in its retrospective application offends the constitutional protections enjoyed by plaintiff and all other would-be registrants.

 A. The Ex Post Facto Clause

 Black's Law Dictionary defines an ex post facto law as "a law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed." Black's Law Dictionary, 580 (West Sixth Ed. 1990) (citations omitted.) The United States Constitution explicitly mandates that "no state shall pass any . . . ex post facto law." U.S. CONST. Art. I, § 10.

 Forty-six of the fifty United States have incorporated similar bans into their constitutions against the enactment of ex post facto laws. See Neil C. McCabe and Sophia A. Bell, Ex Post Facto Revisions of State Constitutions, 4 Emergent Issues St. Const. L. 133, 133 n.4 (1991) (noting that only Delaware, Hawaii, New York, and Vermont have no such constitutional provisions) New Jersey, like the majority of its sister states, has such a provision in its constitution. N.J.CONST. Art. IV, § 7, para. 3. Plaintiff in the instant case has asserted in his Complaint and in the various submissions to this Court on his behalf that Megan's Law violates the ex post facto clause of the United States Constitution.

 The historical context and intent of the clause is instructive in determining its application in the instant case. The drafters of the United States Constitution placed a great deal of emphasis on the principle that, in this new Union recently released from the perceived tyranny of British rule, citizens should not be faced with the prospect that their conduct -- innocent when carried out -- could be rendered criminal after the fact. See Calder v. Bull, 3 U.S. 386, 389, 1 L. Ed. 648 (1798). Justice Chase, writing for the Court in Calder, wrote:

 
The prohibition against the making of any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting capital, and the other less, punishment. . . . Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed, [] at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; [] at other times they inflicted punishments, where the party was not, by law, liable to any punishment; [] and in other cases, they inflicted greater punishment, than the law annexed to the offense. . . . With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and similar, acts of violence and injustice, I believe, the Federal and State Legislators, were prohibited from passing any bill of attainder; or any ex post facto law.

 Id. (footnotes and citations omitted).

 Justice Chase interpreted the ex post facto clause as a prohibition against state governments passing laws which have the effect of punishing citizens or subjects for conduct after the fact, where that conduct would not have been punishable when carried out. As such, Justice Chase considered the clause to be "an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation." Id. at 390. Specifically, Calder held that the ex post facto clause encompassed:

 
[a] Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [b] Every law that aggravates a crime, or makes it greater than it was, when committed. [c] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [d] Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

 Id.

 The Calder list of prohibited laws was expanded in Kring v. Missouri, 107 U.S. 221, 27 L. Ed. 506, 2 S. Ct. 443 (1883), and in Thompson v. Utah, 170 U.S. 343, 42 L. Ed. 1061, 18 S. Ct. 620 (1898), to include instances wherein a citizen would be "disadvantaged" by the new law, or where it substantially deprived a citizen of his liberty. These expansions, however, were recently erased by the Supreme Court in Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990) (overruling Kring and Thompson). The Collins court re-established the Calder criteria for determining the viability of laws under ex post facto scrutiny.

 Under Calder analysis, the relevant scrutiny to which sex offender registration acts can be subjected, therefore, is whether the "law . . . changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." See 3 U.S. at 390. That analysis focuses on "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[.]" DeVeau v. Braisted, 363 U.S. 144, 160, 4 L. Ed. 2d 1109, 80 S. Ct. 1146 (1960). See also Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981).

 When the challenged legislation has a clear punitive purpose the court should apply ex post facto analysis, if appropriate. DeVeau, 363 U.S. at 160. If, on the other hand, the statute does not have a clear punitive purpose, the court must determine whether the effect of the statute or its scheme is punitive in nature -- such that its application goes beyond its purely regulatory function. United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980). Indeed, even if the stated purpose of the legislation is a regulatory or procedural one, the court must still examine its effects to determine whether in fact the statute is punitive. Collins, 497 U.S. at 46 ("by simply labeling a law 'procedural,' a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause. . . . Subtle ex post facto violations are no more permissible than overt ones."). See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) (when there is doubt as to whether the legislation was intended to be regulatory or punitive, the court must determine based on certain criteria the effect of the legislation).

 The non-exclusive list of factors to be applied in determining whether legislation is punitive as opposed to regulatory per Kennedy include:

 
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [] . . . .

 372 U.S. at 168-69 (footnotes omitted).

 Courts applying the Kennedy criteria to the registration statutes have reached differing conclusions. In the context of retroactively applicable registration statutes, the courts of two states have found that such statutes did not violate the ex post facto clause.

 The Supreme Court of Arizona applied ex post facto analysis to a statute demanding that persons convicted of certain sexual offenses must register with the Sheriff of the county in which they reside or are temporarily domiciled within thirty (30) days of their release from prison or their entry into that county. Arizona v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1219-20 & n.1 (Ariz. 1992). The Arizona statute did not contain a provision under which the public would be informed of the ex-convicts' presence in the community. The court applied the Calder test relating to whether a changed or enhanced punishment had been attached to certain crimes or conduct after the fact. Id. at 1220.

 As a threshold matter, the Noble court found that the statute did have a retroactive effect in that the registration requirement had not been in effect at the time the offenders challenging the statute had carried out their conduct; thus, they had not been given fair warning of the likely outcome of such conduct. As such, ex post facto analysis was triggered.

 The Arizona Supreme Court then went on to consider whether the registration requirement constituted punishment. Applying the punitive versus regulatory analysis outlined above, the court concluded that the Arizona legislature had failed to categorize the statute as either punitive or regulatory. Therefore, the Noble court applied the factors set forth in Kennedy to determine the actual nature of the statute. Id. 829 P.2d at 1221 ("These factors focus appropriate attention on the effects of the registration requirement on convicted sex offenders and on the rationality between the requirement and its purported non-punitive function.").

 As to the first factor, whether the registration constituted an affirmative disability or restraint, the Noble court recognized that registration might impair a registrant's potential employability, leave him subject to increased police scrutiny, and would last for life. However, because the dissemination of the registrant's record (as provided for by the statute) was limited, and available only in certain sensitive areas of employment, the Noble court found that the statute did not fail under the first standard of Kennedy scrutiny. *fn9"

 The second criterion set forth by Kennedy involves a determination as to whether the effects of the statute upon an individual would historically have been regarded as punishment. The Noble court found that "registration has traditionally been viewed as punitive." Id. at 1222. Acknowledging that other courts had viewed sex offender registration as an "'ignominious badge'", the Arizona Supreme Court recognized that the United States Supreme Court had previously found that keeping a criminal forever under the shadow of his own crime was oppressive and constituted a deprivation of essential liberty. Id. at 1223 (quoting Weems v. United States, 217 U.S. 349, 366, 54 L. Ed. 793, 30 S. Ct. 544 (1910)). However, the Noble court felt that registration of sexual offenders did not constitute punishment in that "the provisions in the statute limiting access to the registration information significantly dampen its stigmatic effect." Id. (citations omitted).

 As to the third element of the Kennedy scrutiny, namely whether the statute serves the traditional aims of punishment, the court found that the registration act had a deterrent effect and that sex offenders would be less likely to commit repeat acts when they knew that the police authorities had ready access to their whereabouts and records. Id. The court, likewise, found that the registration act served a legitimate law enforcement purpose not excessive in relation to its non-punitive aims. As such, the Noble court was satisfied that the fourth factor in the Kennedy analysis tipped the scales in favor of the statute. Id. at 1223-24.

 In its conclusion, the Noble court found that a balance of the punitive and regulatory effects of the registration act led to the conclusion that the act did not offend the ex post facto clause. Noting that the decision was a close one, the court was persuaded that the registration act did not constitute punishment and that its retrospective application was not unconstitutional. This outcome appears to have rested, at least in part, on the Noble court's satisfaction that:

 
Registrants are not forced to display a scarlet letter to the world; outside of a few regulatory exceptions, the information provided by sex offenders pursuant to the registration statute is kept confidential.

 Id.

 In Washington v. Taylor, 67 Wash. App. 350, 835 P.2d 245 (Ct. App. Wash. 1992), the Washington Court of Appeals concluded that retroactive application of a sex offender registration act did not violate the ex post facto clause. Taylor was influenced by the Noble decision from Arizona. Noting the merit of Noble's analysis, the Washington court acknowledged that the Arizona statute was more limited in terms of providing for the dissemination of information about registered offenders than was the Washington act. In fact, the latter placed very little limitation on the public dissemination of a registrant's record. Id. at 248-249.

 The Taylor court was very much influenced by the fact that all of the information required by the statute was already part of the public record and could be unearthed by any person who chose to "make a reasonable effort to obtain it." Id. at 249. The court observed that the deterrent effect of the statute was hardly greater than the deterrent effect of a registrant's having already served a period of detention for his crime. "Any additional deterrent effect caused by the registration would be incidental and minimal. It falls far short of the effect needed to convert an intended regulation into additional punishment." Id. The Taylor court categorized the effect of the act in light of the preexisting societal taboo surrounding sexual offenses:

 
There is a stigma attached to one who has committed a sexual offense. It stems from the fact of conviction and is not something that can be easily concealed once the offender has been released from custody. To the extent that registration makes it likely more persons will learn of the conviction, it is unlikely that the additional dissemination of the information brought about by registration will significantly increase the stigmatic effect over what it would be absent any registration requirement.

 Id.

 As such, the Taylor court found that the Washington Sex Offender's Registration Act was regulatory as opposed to punitive, and that it did not violate the ex post facto clause.

 In 1994, the Supreme Court of Washington had cause to consider the issue of whether the retroactive application of the sex offender registration statute violated the ex post facto clause. In Washington v. Ward, 123 Wash. 2d 488, 869 P.2d 1062 (Wash. 1994), the Washington Supreme Court found that the statute did not constitute punishment and was thus constitutional under the ex post facto clause.

 For the purposes of its determination, the Ward court presumed the statute to be substantive as opposed to procedural. Its analysis focused on whether the act altered the standard of punishment which had previously existed under Washington law for the crimes committed by the two sexual offenders who challenged the statute. Going beyond the legislature's stated purpose that the act was intended to assist local law enforcement agencies, the court acknowledged that the Kennedy factors governed the determination of whether the statute had a punitive effect.

 The Ward court found that the registration requirements of the act did not amount to a badge of infamy; that a registrant's information was already part of the public record even without his registering; that the physical act of registration did not constitute an affirmative disability or restraint; and that the act did not inhibit registrants' free mobility within the state. Id. at 1069.

 The Ward court went on to analyze whether the publicity, or its potential, associated with registration constituted punishment. The court noted that Washington law already had in it a provision whereby criminal justice agencies were permitted to release conviction records without restraint. As such, the court concluded that "the disclosure of conviction information cannot impose an additional burden." Id. Moreover, the court was satisfied that only in cases where dissemination to the public of a registrant's information would be deemed "necessary for public protection" did the statute provide for public disclosure. Such a determination, namely to provide the information to the public, could only be made after an initial determination of the offender's likelihood to commit his crime again, his future dangerousness, and his potential threat to the community. Moreover, the court determined that

 
disclosure must be "rationally related to the furtherance" of the goals of public safety and the effective operation of government. . . . Accordingly, the geographic scope of dissemination must rationally relate to the threat posed by the registered offender. Depending on the particular methods of an offender, an agency might decide to limit disclosure only to the surrounding neighborhood, or to schools and day care centers, or, in cases of immediate or imminent risk of harm, the public at large. The scope of disclosure must relate to the scope of the danger. In addition, the content ...

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