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W.P. v. PORITZ

July 1, 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

 In their Second Amended Complaint the plaintiffs in this class action assert that the New Jersey Registration and Community Notification Laws (hereinafter "Megan's Law") is unconstitutional as applied retroactively to the plaintiff class because it violates the ex post facto clause of the United States Constitution (Count II), its double jeopardy clause (Count III) and the procedural due process protections of the fourteenth amendment (Count IV). Count I sought a temporary restraining order and a preliminary injunction pendente lite. That relief has previously been granted as reflected in prior Opinions and Orders of this Court. Shortly after the filing of the Second Amended Complaint, this Court certified the following plaintiff class, constituting:

 
All persons required to register as a sex offender 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 tier II or tier III offenders.

 (Order, March 15, 1996).

 Presently before the Court are plaintiffs' motion for summary judgment and defendant Deborah Poritz's motion for summary judgment on all Counts seeking final relief: Counts II, III and IV. All additional defendants, the county prosecutors, have joined in Attorney General Poritz's motion. Plaintiffs bring this action under 42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3). For the reasons set forth below, plaintiffs' motion is denied and defendants' motion is granted.

 INTRODUCTION

 Society's concern about sex offenders is an issue which is extremely important in modern society. The many efforts to address this issue have failed as often as they have succeeded. There is still much to be learned about the cause of these acts and how best to combat them.

 The lack of societal success in this area is demonstrated nowhere more poignantly than in the death of seven-year-old Megan Kanka. The shock that the community would normally feel at the brutal death of a child was magnified tenfold by the fact that the alleged perpetrator was a twice-convicted sex offender. Thus, it is natural and appropriate that this incident would spur the public to demand quick and decisive actions on the part of its government to curtail such tragedies in the future.

 However, government is at all times constrained by the limitations placed on it by the United States Constitution and the balancing of political and societal values contained on its pages. The rights which this Court examines today "are towering constitutional provisions of great importance to individual dignity, freedom, and liberty." Doe v. Poritz, 142 N.J. 1, 43, 662 A.2d 367 (1995).

 It must be clearly and emphatically stated that what the Court here undertakes is not a balancing of the rights of sex offenders against the rights of their victims. Rather, it is an analysis of the breadth of the rights which every American holds, and the constitutional limitations on a government's power to infringe them. When the government violates an individual's constitutional rights, regardless of the propriety of its motivation, it is this Court's duty, if requested, to identify and redress such a violation.

 I. Megan's Law

 Within a month, the first versions of the Community Registration and Notification laws passed the General Assembly and the Senate. ( Id., PP 13-15). In the General Assembly, the bills were declared "emergency" and therefore bypassed committee and were put to a vote the same day as the second reading. ( Id., P 13). The bills were conferenced and amended, and ultimately were signed into law on October 31, 1994. ( Id., PP 13-19). The Registration and Notification statutes are two of ten statutes signed the same day which are collectively referred to as "Megan's Law" in memory of Megan Kanka. (Defendant's Br. at 3).

 Megan's Law requires a system of registration for sex offenders and other offenders who have committed crimes against children. *fn1" (Id.) Once the individual has registered, he is then placed into one of three Tiers based upon the risk of re-offense, Tier I (low risk), Tier II (moderate risk), and Tier III (high risk). N.J.S.A. 2C:7-8. These classifications are made by the county prosecutors utilizing a "Registrant Risk Assessment Scale" developed by the Attorney General. ( Id. at 3). Based upon the Tier Classification, segments of the public are provided with information about the registrant: law enforcement for Tier I; law enforcement and certain community organizations for Tier II; law enforcement, community organizations, and individuals likely to encounter the registrant for Tier III. (Id.)

 Shortly after its passage, Megan's Law was challenged in both the federal and state courts. The Supreme Court of New Jersey addressed the issue in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995). The Doe Court upheld the statute against ex post facto, double jeopardy, equal protection, administrative procedure act, privacy and due process challenges. See Doe, 142 N.J. at 12. That Court, however, found the statute to be lacking in its original form, and crafted a procedure of judicial review which it felt would adequately protect the liberty interests involved. Doe, 142 N.J. at 28-40. This holding was later augmented by that Court through a judicial order of October 23, 1995 specifically outlining the procedure to be followed in such review. (Appendix to Brief in Support of Plaintiffs' Motion for Summary Judgment (hereinafter "Plaintiffs' App.") at A-306-28). The Doe v. Poritz Court also limited the scope of notification under Tier II and Tier III to those organizations and persons "likely to encounter" the registrant. Doe, 142 N.J. at 35-38.

 II. Artway v. Attorney General

 A. History

 Prior to the Supreme Court of New Jersey's decision in Doe, the constitutionality of Megan's Law was addressed in this District in Artway v. Attorney General, 876 F. Supp. 666 (D.N.J. 1995). Alexander Artway was found guilty of a sex offense and sentenced prior to the effective date of the statute. ( Id. at 668). The trial judge found his conduct to be "characterized by a pattern of repetitive, compulsive behavior." (Id.) Prior to registration, Artway filed an action for a Declaratory Judgment to invalidate Megan's Law on the same grounds asserted by plaintiffs in the case at bar.

 Judge Politan found the law to be violative of the ex post facto clause of Article I of the United States Constitution. In doing so, he applied the multifactor test enumerated by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). ( Artway, 876 F. Supp. at 688-92). Specifically, the court upheld registration and Tier I notification, and struck down notification at Tiers II and III. Id. That decision was appealed.

 While the Artway case was pending on appeal, and after the Doe v. Poritz decision, the Attorney General and the county prosecutors began to implement the revised procedures for registration and notification. As registrants began to receive notice, several of them, including the plaintiffs in the instant action, sought preliminary injunctive relief from several judges in this district. That relief was granted in all instances, in part due to the pendency of the Artway appeal which could have been dispositive of this litigation.

 Each of these actions was filed on an emergent basis, straining the court's resources. Therefore, on March 15, 1996, pursuant to the allegations of the Second Amended Complaint herein, a class action was certified describing the class as set forth above.

 The preliminary injunction was scheduled to terminate "10 days after the Third Circuit has issued its opinion on the appeal of Artway v. Attorney General et al., Docket Nos. 95-5195, 95-5157, 95-5194." The Artway decision was expected to be dispositive of he due process, double jeopardy, and ex post facto issues raised in connection with Megan's Law. However, the Third Circuit found that those claims as addressed to Tier II and Tier III designees were not ripe for review in that case. Artway v. Attorney General, 81 F.3d 1235, 1246-52 (3d Cir. 1996). As a result, this Court extended its injunctive relief to allow the parties to address those issues through motion practice, for summary judgment or otherwise, if the claims of any of the present plaintiffs had ripened. (See Order of April 22, 1996). This Court now directly addresses the merits of plaintiffs' Constitutional claims. *fn2"

 In considering its role in evaluating a statute such as Megan's Law, this Court draws upon the analysis of Justice Stein at the conclusion of his dissenting Opinion in Doe v. Poritz.

 
"The Legislature's value judgment about these laws is entitled to great respect, but that judgment comprises only one part of the constitutional equation. The judiciary's task is to complete the equation by evaluating the legislative determination in the context of settled Constitutional principles. Those principles are neither negotiable nor flexible, their importance having been conclusively determined more than two hundred years ago by the founding fathers. In applying those principles, we must bear in mind their origins: "The constitutional prohibitions against the enactment of ex post facto laws and [double jeopardy] reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 513, 109 S. Ct. 706, 732, 102 L. Ed. 2d 854, 895 (1989) (Stevens, J., concurring). In addition, we are reminded that retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1982), the Ex Post Facto Clause not only ensures that individuals have "fair warning" about the effect of criminal statutes, but also "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id., at 28-29, 101 S. Ct. 1483, 1497-98, 128 L. Ed. 2d 229, 253 (1994).
 
The Constitution's prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age. Today, our concern is with prior sex offenders; in the 1950's the legislative concern focused on Communists; and in the 1860's Congress was determined to punish legislatively those who had supported the Confederacy. Future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent threat to the public safety.
 
* * *
 
Despite the Legislature's understandable concern about the danger presented by prior sex offenders, the judicial role, mindful of the compelling pressures that led to the statute's enactment, is to test the statute on the basis of the Constitution's fundamental protection against punitive retroactive legislation."

 Doe v. Poritz, 142 N.J. 1, 145-47, 662 A.2d 367 (1995).

 However, this Court's analysis should not overlook present reality. Despite what "original intent" theorists would say, the United States Constitution is not mired in the life and times of the 1790's and earlier. The beauty of the Constitution is that it is a living document as applicable and vital in the 1990's as it was more than 200 years ago. The very exceptional men who drafted, debated and ratified the Constitution had the foresight to craft a rather brief document enunciating general principles; a document which they hoped would endure for several centuries as our forebears set the course of this country upon the noble experiment of representative government for and by a free people. Accordingly, while this Court must consider history in reaching its current decision, it does not do so bottled up in the era of the 17th and 18th centuries. This Court agrees with Justice Stein that constitutional prohibitions against ex post facto laws and double jeopardy serve as an appropriate check upon legislative excesses. However, when evaluating the New Jersey Legislature's response to bona fide societal concerns of the 1990's, the Court will consider this reality and will afford to that legislature the "respect" to which its "value judgment[s]" are entitled. Doe v. Poritz, 142 N.J. at 145.

 B. The Third Circuit Opinion

 On appeal, the Third Circuit found that many of Mr. Artway's claims were not ripe because he had neither registered nor been classified by the appropriate county prosecutor's office. Artway, 81 F.3d at 1250. The court held that an individual must be more fully involved with the statutory scheme through registration and initial classification. (Id.) However, it was not deemed necessary for an individual to have undergone actual notification before the challenge could be levied. Artway, 81 F.3d at 1250 n.9.

 The Third Circuit did find that Artway's challenges to registration and Tier I notification were ripe, and affirmed the district court's decision holding them to be constitutional. ( Id. at 1271). The Third Circuit also conducted an exhaustive review of Supreme Court precedent and then articulated a "synthesis" of those decisions applicable to ex post facto and double jeopardy, upon which it formulated a test for determining when an act constitutes "punishment" under those provisions. ( Id. at 1253-63). Although the issues regarding Tiers II and III were not ripe, the Court applied this test to both registration and Tier I. This highly structured formula was stated as follows:

 
A measure must pass a three-prong analysis -- (1) actual purpose, (2) objective purpose, and (3) effect -- to constitute non-punishment. We must look at actual purpose to see "whether the legislative aim was to punish." See De Veau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 1155, 4 L. Ed. 2d 1109 (1960). If the legislature intended Megan's Law to be "punishment," i.e., retribution was one of its actual purposes, then it must fail constitutional scrutiny. If, on the other hand, "the restriction of the individual comes about as a relevant incident to a regulation," the measure will pass this first prong. Id.
 
If the legislature's actual purpose does not appear to be to punish, we look next to its "objective" purpose. This prong, in turn, has three subparts. First, can the law be explained solely by a remedial purpose? United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 1901-02, 104 L. Ed. 2d 487. If not, it is "punishment." Second, even if some remedial purpose can fully explain the measure, does a historical analysis show that the measure has traditionally been regarded as punishment? See Austin, 509 U.S. 602, 113 S. Ct. 2801, 2806, 125 L. Ed. 2d 488. If so, and if the text or legislative history does not demonstrate that this measure is not punitive, it must be considered "punishment." Third, if the legislature did not intend a law to be retributive but did intend it to serve some mixture of deterrent and salutary purposes, we must determine (1) whether historically the deterrent purpose of such a law is a necessary complement to its salutary operation and (2) whether the measure under consideration operates in its "usual" manner, consistent with its historically mixed purposes. See Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 1946-48, 128 L. Ed. 2d 767. Unless the partially deterrent measure meets both of these criteria, it is "punishment." If the measure meets both of these criteria and the deterrent purpose does not overwhelm the salutary purpose, it is permissible under Kurth Ranch.
 
Finally, if the purpose tests are satisfied, we must then turn to the effects of the measure. If the negative repercussions//--regardless of how they are justified//--are great enough, the measure must be considered punishment. See Morales, U.S. at , 131 L. Ed. 2d 588, 115 S. Ct. 1597, 1603. This inquiry, guided by the facts of decided cases, is necessarily one "of degree." See id.

 Artway, 81 F.3d at 1263.

 III. United States v. Ursery

 Poised to apply the Artway formula, this Court on June 24, 1996 received the United States Supreme Court's opinion in United States v. Ursery, 116 S. Ct. 2135, 135 L. Ed. 2d 549, 1996 WL 340815 (June 24, 1996), which alters the analysis to be employed in the case at bar.

 Ursery involved two separate double jeopardy challenges to civil forfeiture statutes, 21 U.S.C. § 881(a)(6) and 21 U.S.C. 881(a)(7). (Ursery at *3-4). In a case coming from the Sixth Circuit, civil forfeiture proceedings were instituted against Guy Ursery's home, and following the resolution of that action he was indicted for manufacturing marijuana. (Id. at *3). In a companion case from the Ninth Circuit [U.S. v. $ 405,089.23, 33 F.3d 1210 (9th Cir. 1994)], the civil forfeiture action was instituted following the criminal conviction of petitioners Alt and Wren. (Id.) Both the Sixth and Ninth Circuits found the second proceeding to be unconstitutional and violative of the Double Jeopardy Clause. (Id.) The Supreme Court reversed. (Id.)

 The Courts of Appeals based their decisions largely on the holding in Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), which they believed stood for the proposition that all in rem civil forfeitures under 21 U.S.C. § 881 were "punishment" for the purposes of Double Jeopardy. See United States v. Ursery, 59 F.3d 568, 572-73 (6th Cir. 1995); United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210, 1219-22 (9th Cir. 1994).

 The Supreme Court rejected this contention, stating the "holding of Austin was limited to the Excessive Fines Clause of the eighth amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence." (Ursery at *13). Furthermore, in footnote 2 of the majority Opinion, the Supreme Court limits the applicability of Halper, confining it to a much narrower scope than that suggested by Justice Stevens' dissent in Ursery and employed by the Third Circuit in Artway. (Ursery at *11). The Court went on to say that "nothing in Halper,3 Kurth Ranch,4 or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.... None of those cases dealt with the subject of this case: in rem civil forfeitures for the purposes of the Double Jeopardy Clause." (Ursery at *12). Instead, the Supreme Court based its analysis on a line of cases dealing with civil forfeiture, Various Items of Personal Property v. United States, 282 U.S. 577, 75 L. Ed. 558, 51 S. Ct. 282 (1931); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489 (1972); and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984). (Ursery, at *12-16).

 This Court recognizes that it is bound by whatever Third Circuit precedent governs its inquiry. It may neither ignore nor reject such precedent. In the case at bar, however, the particular, compartmentalized approach of Artway need not and should not be followed, because it is not binding precedent for the issues and claims presented in the cross-motions for summary judgment.

 First, and least significant to the analysis of Artway's precedential value, is the fact that the claims in Artway attacking Tiers II and III were specifically found to be not ripe for adjudication. If this were all, the Court would apply the structured Artway pattern because it was both enunciated and then applied to the registration and Tier I notification features of Megan's Law; but there is more.

 Secondly, Artway itself recognized the limitations of its own conclusions:

 
We have thus attempted to harmonize a body of doctrine that has caused much disagreement in the federal and state courts. We realize, however, that our synthesis is by no means perfect. Only the Supreme Court knows where all the pieces belong. The Court will, we hope, provide more guidance with its decision in United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), amended on denial of rehearing, 56 F.3d 41 (1995), cert. granted, U.S. , 116 S. Ct. 763, 133 L. Ed. 2d 707 (1996), or some other case in the near future. With this qualification in mind, we turn to the application of this test to Megan's Law.

 81 F.3d at 1263.

 Through Ursery (the same case noted above by the Third Circuit), the U.S. Supreme Court has now spoken, and has presented a different approach to the issues which were then before Artway and are now before this Court.

 Thirdly, Ursery expressly rejects the philosophical foundation of Artway: that a universal rule for the definition of "punishment" can and should be derived through a "synthesis" achieved from analyzing the Supreme Court's recent decisions in Halper, Austin, Kurth Ranch and Morales *fn5" Not only is that evident from Justice Rehnquist's Opinion itself, it is highlighted by a comparison of that Opinion with the global (Artway) approach advocated by Justice Stevens in his dissent. Artway's synthesis does not survive Ursery, a ruling by the highest court of the land, which this Court must follow. *fn6"

 The Supreme Court has now stated that Halper, Austin, Kurth Ranch, (by implication Morales), and now Ursery cannot be employed to establish a "synthesis" that generates a universal analytical framework for defining "punishment" in all cases. *fn7" That determination does not, however, require this Court to relegate each of those cases to a narrow context and thereafter decline to consult them for guidance in deciding the case at bar. Certain considerations common to those cases counsel this Court to employ them in deciding whether the Tier II and/or Tier III notification provisions of Megan's Law impose "punishment." These common considerations are the expressed intent of the legislature as reflected in the legislation itself and the legislative history; the "purpose" of that legislation, viewed objectively, particularly if that demonstrates a potential for a more punitive objective; a balancing of remedial and punitive goals; an analysis of how such laws have been considered historically, if there is any clear historical analogue; and a review of the "effect" of such legislation, if that effect is extreme or severe. Not surprisingly, each of those considerations was recognized in Artway. What Ursery teaches us, however, is that such considerations may not be transformed into a rigid series of hurdles which must be surmounted, one after the other, before the legislation can survive an ex post facto or double jeopardy challenge. Rather this Court, in an analysis similar to that in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) (although the factors considered are not identical), must weigh these considerations in a less structured fashion to reach its decision. Ursery also instructs this Court to focus primarily upon precedent most closely resembling the facts, issues and constitutional provisions involved in the case at bar.

 Employing the analysis set forth above, this Court holds that Tier II and Tier III notifications applied to members of the plaintiff class do not violate their rights under the ex post facto and double jeopardy clauses.

 IV. Summary Judgment

 Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Chipol1ini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). In deciding a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and must resolve any reasonable doubt as to the existence of a genuine issue of fact against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of establishing that there exists no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The Supreme Court has stated that, in applying the criteria for granting summary judgment,

 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it will affect the outcome of a lawsuit under the applicable law, and a dispute over a material fact is "genuine" if the evidence is such that a ...


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