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W.P. v. PORITZ

March 15, 1996

W.P. et al., Individually and as Representatives of a Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Plaintiffs,
v.
DEBORAH PORITZ, Attorney General of New Jersey; JEFFREY S. BLITZ, Atlantic County Prosecutor; CHARLES R. BUCKLEY, Acting Bergen County Prosecutor; STEPHEN G. RAYMOND, Burlington County Prosecutor; JOSEPH P. AUDINO, Acting Camden County Prosecutor; STEPHEN D. MOORE, Cape May County Prosecutor; NEIL S. COOPER, Acting Cumberland county Prosecutor; CLIFFORD J. MINOR, Essex County Prosecutor; HARRIS Y. COTTON, Gloucester County Prosecutor; CARMEN MESSANO, Hudson County Prosecutor; SHARON B. RANSAVAGE, Hunterdon County Prosecutor; MARRYANN K. BIELAMOWICZ, Mercer County Prosecutor; ROBERT W. GLUCK, Middlesex County Prosecutor; JOHN KAYE, Monmouth County Prosecutor; W. MICHAEL MURPHY, JR., Morris County Prosecutor; DANIEL J. CARLUCCIO, Ocean County Prosecutor; RONALD S. FAVA, Passaic County Prosecutor; RONALD A. EPSTEIN, Salem County Prosecutor; MELAINE B. CAMPBELL, Acting Somerset County Prosecutor; DENNIS O'LEARY, Sussex County Prosecutor; EDWARD NEAFSEY, Acting Union County Prosecutor; and JOHN J. O'REILLY, Warren County Prosecutor, Defendants.



The opinion of the court was delivered by: BISSELL

 BISSELL, District Judge

 This matter comes before the Court on the plaintiffs' motion to certify a class action. The present action was filed on January 16, 1996. The plaintiffs seek to enjoin the defendants from enforcing the Community Notification Act, N.J.S.A. 2C:7-1 et seq., (Megan's Law). (First Amended Complaint, hereinafter "Compl." at 9-10)

 Plaintiff's claim that Megan's Law violates the ex post facto and double jeopardy clauses of the United States Constitution. (Compl., PP 35, 39) By Order of this Court on January 16, 1996, and subsequent Orders, the defendant has been enjoined from "issuing or disseminating in any manner Tier II or Tier III notifications regarding plaintiffs" until April 19, 1996 or until 10 days after the Third Circuit has issued its opinion on the appeal of Artway v. Attorney General et al., 83 F.3d 594, whichever first occurs.

 This Court has jurisdiction pursuant to 28 U.S.C. § 1331, and other statutory authority invoked in the Complaint, including 42 U.S.C. § 1983 and the Declaratory Judgment Act (28 U.S.C. § 2201).

 FACTS

 Each of the named plaintiffs has been convicted of a sex related offense as the result of a plea of guilty. (Compl., P 8) Currently, they are living in their respective communities within the State of New Jersey. (Compl., PP 9-30) The named plaintiffs have individually been classified under Megan's Law at either the Tier II or Tier III Level. (Plaintiff's Br. at 6-8). The offenses for which the named plaintiffs were convicted occurred prior to the enactment of Megan's Law. (Id.)

 Once a registrant is notified of his tier classification under Megan's Law, he must be afforded some judicial review before public notification. Doe v. Poritz, 142 N.J. 1, 107, 662 A.2d 367 (1995). The Supreme Court of New Jersey has established an "Outline of Procedure for Hearings on Objections to Megan's Law Tier 2 and Tier 3 Classifications and Manner of Notification Determinations." (Plaintiff's Br., App. A) The parties first have a pre-trial conference. at which time the judge may render a final determination. (Id. at A-5) If a hearing is required, then the judge will schedule a date 10-14 days thereafter and conduct an in camera proceeding. (Id.) At the conclusion of the hearing the judge must make a final determination. (Id.)

 Originally, it was proposed that members of the private bar represent the registrants during these proceedings. See Maureen Castellano Who Will Blink First?; Bar Balks at Pro Bono: Wilentz Doesn't Budge, N.J.L.J., Oct. 30, 1995 at 1. Because of some difficulties with such pro bono representation, a plan was developed under which the majority of these individuals are represented by the New Jersey Public Defender. See Michael Booth, Public Defender to Take Over Megan's Law Representation, N.J.L.J., Nov. 6, 1995 at 4; Russ Bleemer Complaints Mount as Megan's Law Hearings Begin, N.J.L.J. Oct. 23, 1995 at 1.

 As a result, the Office of the Public Defender has sought emergent relief from this Court on three separate occasions, as well as in proceedings before Judges Politan and Simandle. The focus of these proceedings has been the same: to enjoin the classification and notification process while the Third Circuit decides the ex post facto and double jeopardy constitutional issues in Artway v. Attorney General, et al.. In each of these cases, this relief has been granted.

 The plaintiffs now seek to certify a class which consists of:

 
All persons required to register as a sex offender [sic] pursuant to N.J.S.A. 2C:7-1 et seq. and whose offenses were committed prior to October 31, 1994, the effective date of the New Jersey Registration and Community Notification Laws, and who have been or will be classified as a tier II or tier III offender.

 (Complaint at P 5). They also seek injunctive relief for the class.

 ANALYSIS

 I. Certification of the Class Action

 The decision concerning class certification is committed to the broad discretion of the District Judge. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 245 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). The plaintiffs have the burden of showing class certification is proper pursuant to Fed. R. Civ. P. 23. Id. To sustain a class certification, the named plaintiffs must first satisfy the requirements of Fed. R. Civ. P. 23(a). In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 131 (D.N.J. 1984).

 Rule 23(a) provides that:

 
One or more members of a class may sue ... as representative parties on behalf of all only if
 
(1) the class is so numerous that joinder of all members is impracticable,
 
(2) there are questions of law or fact common to the class,
 
(3) the claims ... of the representative parties are typical of the claims ... of the class, and
 
(4) the representative parties will fairly and adequately protect the interests of the class.

 Fed. R. Civ. P. 23(a).

 If the requirements of 23(a) are met, then the plaintiffs must show that they are in one of the categories defined by Rule 23(b). The plaintiffs here purport to bring this action pursuant to Rule 23(b)(2) because

 
(2) the party opposing the class has acted or refuses to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. . .

 Fed. R. Civ. P. 23(b)(2)

 A. Numerosity

 At the present time there are approximately 3380 registrants under Megan's Law, of which up to 2000 may eventually be classified at the Tier II or Tier III levels. (Compl., Exh. A; Plaintiff's Br. at 44). *fn1" These individuals reside in areas throughout the state. (Id.) As each registrant is notified of his or her preliminary classification at Tier II or Tier III, he or she has a limited window prior to final classification and notification in which to petition the U.S. District Court for relief. As a result, the Court has been, and in the future undoubtedly will be, required to entertain numerous new complaints, motions to add plaintiffs, and applications for temporary restraining orders and preliminary injunctions, on short notice. The continuation of this process for additional plaintiffs is impracticable, cumbersome, and may not insure protection to all who may be entitled to it.

 B. Commonality

 The commonality requirement is satisfied "if there are some questions of law or fact common to the class." Zinberg, 138 F.R.D. at 406 (citing Vargas v. Calabrese, 634 F. Supp. 910, 918 (D.N.J. 1986)). These claims do not have to be exactly the same as long as they are not in conflict. Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985), cert. denied, 474 U.S. 946, 88 L. Ed. 2d 290, 106 S. Ct. 343, 106 S. Ct. 342 (1985). If "class members can assert ... a single common complaint" it is unnecessary that they "have all suffered actual injury; demonstrating that all class ...


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