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A.F. v. Fauver

February 14, 1996

A.F. AND A.G., *FN1 ET AL, INDIVIDUALLY AND IN BEHALF OF ALL OTHERS SIMILARLY SITUATED, *FN2 PLAINTIFFS-APPELLANTS,
v.
WILLIAM H. FAUVER, COMMISSIONER-DEPARTMENT OF CORRECTIONS, DEFENDANT-RESPONDENT.



On appeal from the Final Determination of the Department of Corrections.

Approved for Publication February 14, 1996.

Before Judges Shebell and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

On February 6, 1995, William H. Fauver, the Commissioner of the Department of Corrections, proposed an amendment to N.J.A.C. 10A:4-4.1(a), which enumerates "Prohibited Acts" by inmates, adding "Refusal to register as a sex offender," pursuant to Megan's Law (N.J.S.A. 2C:7-1 to 11), to the list of prohibited acts. A.F. filed comments expressing his concerns regarding the constitutionality of the proposed amendment.

The amendment was adopted without change on April 7, 1995, and became effective May 1, 1995. The procedures employed in the adoption fully complied with the Department's regulations concerning amendment of rules and procedures.

On June 15, 1995, A.F. and A.G. appealed the Department's amendment of N.J.A.C. 10A:4-4.1(a) to this court. A.F. and A.G. are both serving sentences at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, for sexual offenses previously committed by them, that are covered by the requirements of Megan's Law. ADTC is under the control of the Department and is subject to its rules and regulations. N.J.S.A. 30:1B-8. A.F.'s scheduled release date was January 21, 1996, while A.G.'s is October 1, 1996. *fn3

Upon their respective releases, appellants will both be subject to Megan's Law, which was signed into law on October 31, 1994. Its provisions require certain sex offenders to register with the authorities and requires the authorities to notify the community of their presence. See N.J.S.A. 2C:7-1 to 11. One provision states, in part:

A person confined in a correctional ... facility or involuntarily committed who is required to register shall register prior to release in accordance with procedures established by the Department of Corrections ...

N.J.S.A. 2C:7-2c(2).

Further, N.J.S.A. 2C:7-2(a) says:

A person who fails to register as required under this act shall be guilty of a crime of the fourth degree.

The Department's amendment to N.J.A.C. 10A:4-4.1(a) added "Refusal to register as a sex offender" to the list of acts punishable if committed by an inmate. N.J.A.C. 10A:4-4.1(a), as amended, now reads in pertinent part:

An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action and a sanction that is imposed by a Disciplinary Hearing Officer or Adjustment Committee. Prohibited acts preceded by an asterisk are ...


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