a reasonable probability of success on the merits, the Request to Enjoin the State Proceedings, the Request to Enjoin Notification and the Request for a Declaratory Judgment, as applied to David D., are denied.
1. Reasonable Probability of Success on the Merits
Plaintiffs argue they have a reasonable probability of eventual success on the merits in this litigation on all four constitutional claims raised: 1) procedural due process, 2) double jeopardy, 3) cruel and unusual punishment and 4) privacy. Moving Brief at 4. In support of this contention, Plaintiffs cite the injunction imposed by the Third Circuit pending its decision in W.P. et al. v. Verniero et al., No. 96-5116. Plaintiffs argue the reasonable probability of success is "particularly clear" because W.P. involves two of the same claims raised here: due process and double jeopardy. Id.
This argument is not persuasive. W.P. involves claims and parties distinct from the instant matter. The Plaintiffs in this matter are not members of the members of the class certified in W.P. because the offenses committed by Plaintiffs were committed after the passage of Megan's Law. The class certified in W.P. committed offenses prior to the enactment of Megan's Law. Moreover, there is no indication what the basis is for the continued stay imposed by the Circuit. Accordingly, extension of the injunction imposed in favor of the W.P. class by the Third Circuit bears no relevance here.
a. Fourteenth Amendment Claims
Plaintiffs first argue Megan's Law violates due process. In Doe, the New Jersey Supreme Court concluded "judicial review through a summary proceeding should be available prior to notification if sought by any person covered by the law." 142 N.J. at 30. The New Jersey Supreme Court directed the Office of the Attorney General to "formulate procedures designed to assure that notice is given in sufficient time prior to Tier [II] or Tier [III] notification to allow the offender to object." Id.
The notice informs the offender of the proposed Tier Classification, the specific manner and details of notification and advises him or her that "unless [an] application is made to a court on or before the date mentioned in the notice (which shall not be shorter than two weeks after the giving of the notice), the notification will take place." 142 N.J. at 30-31. Upon receipt of the notice, the offender may object to the proposed notification, at which time the court sets a date for a hearing, the Tier Determination Hearing, to decide the issue. Id. at 31.
The court presiding over the Tier Determination Hearing has the authority to determine the extent of witness production, the extent of cross-examination and the use of expert testimony. C.A., 146 N.J. at 83. The court may "affirm or reverse the prosecutor's determination." Doe, 142 N.J. at 31. "In the case of a reversal[,] the court [must] indicate those respects in which the proposed notification does not conform to the laws and the requirements." Id. at 31-32.
At the Tier Determination Hearing, the burden of going forward rests with the State. Id. This is satisfied by a prima facie justification of the proposed level and manner of notification, based upon the evidence presented. Id. The burden then moves to the offender to demonstrate by a preponderance of the evidence that the State did not conform to the laws and guidelines. Id.
Plaintiffs contend the procedures developed violate due process. Plaintiffs contend the hearings are criminal in nature and, therefore, warrant the protections of the Fifth and Sixth Amendments. Moving Brief at 5. Plaintiffs argue in the alternative that, if the proceedings are deemed to be civil in nature, the hearings unconstitutionally place the burden on the offender. Moving Brief at 16.
i. Protection of Fifth and Sixth Amendment Inapplicable
The Plaintiffs proffer the factors found in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) for a determination of whether the hearing proceedings are penal in nature, warranting the protections of the Fifth and Sixth Amendment. Moving Brief at 5.
Plaintiffs appear to argue that the Act establishes criminal proceedings and, therefore, Megan's Law is penal in nature. Under Mendoza-Martinez, the factors deemed relevant are:
 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.