The opinion of the court was delivered by: IRENAS
The Third Circuit recently found that the community notification provisions of New Jersey's sex offender community notification law, N.J.S.A. §§ 2C:7-1 et seq., commonly referred to as "Megan's Law," do not constitute punishment for purposes of the Ex Post Facto and Double Jeopardy Clauses and held that federal due process requires the State to bear the burden of persuasion by clear and convincing evidence in Megan's Law classification proceedings. E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997). After the Third Circuit's ruling, we certified a plaintiff class of sex offender registrants in this case and asked defendants, the Attorney General of New Jersey and the State's twenty-two county prosecutors, to file a motion for summary judgment in light of the Third Circuit's holding. Having now considered this motion and the papers submitted by the parties,
we will grant summary judgment to the defendants on plaintiffs' Double Jeopardy Clause and cruel and unusual punishment claims. The Third Circuit's opinion disposes of these issues and plaintiffs do not attempt to argue that summary judgment should not be granted. We will also grant summary judgment to the defendants on plaintiffs' privacy claims because we find that plaintiffs' constitutional rights to privacy are not violated by the community notification provisions of Megan's Law. We will deny, however, defendants' motion for summary judgment on plaintiffs' due process claim because we find that a genuine issue of material fact exists as to whether or not any class members may be deprived of their due process rights under the New Jersey Supreme Court's recently promulgated redetermination hearing procedures.
A. Registration and Tier Classification Scheme of Megan's Law2
Megan's Law requires convicted sex offenders to register with local law enforcement after completing their sentences. N.J.S.A. 2c:7-2b(1). The registrant must give the local police the following information upon registration: name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, and date and place of employment. N.J.S.A. 2C:7-4b(1). Registration information must be updated every ninety days and upon a registrant's move to a new municipality. N.J.S.A. 2C:7-2d-2e. The registrants' information is not open to the public; however, it is received by certain defined classes of people depending on the classification tier assigned to each registrant.
After registration, each convicted sex offender must be classified to assess the risk of reoffense and the need for community notification. N.J.S.A. 2C:7-8d(1). The prosecutor of the county where he resides and the prosecutor of the county in which he was convicted jointly analyze the registration information in consideration of certain set criteria provided by Megan's Law guidelines. See N.J.S.A. 2c:7-8b. Based upon this analysis, the county prosecutors determine whether registrants pose a low (tier-one), moderate (tier-two) or high (tier-three) reoffense risk. N.J.S.A. 2C:7-8c. All registrants automatically receive at least a tier-one classification.
Tier-one notification requires the county prosecutors to notify only law enforcement agencies likely to encounter the registrant. N.J.S.A. 2C:7-8c(1). Tier-two notification requires the county prosecutors to notify, in addition to law enforcement agencies, registered schools, day care centers, summer camps and other children's or women's organizations giving care to potential victims in areas where the registrant is likely to be encountered. N.J.S.A. 2C:7-8c(2). Tier-three requires the county prosecutors to notify, in addition to those organizations notified under the lower two-tiers, all members of the public likely to encounter the registrant. N.J.S.A. 2C:7-8c(3). Tier-three notification generally extends to members of the registrant's surrounding neighborhood and other places he is likely to frequent. The breadth of notification is left to the discretion of the two county prosecutors, in accordance with Megan's Law guidelines promulgated by the Attorney General. See "Guidelines for Law Enforcement for Notification to Local Officials and/or the Community of the Entry of a Sex Offender into the Community," June 1, 1996 (cited in E.B., 119 F.3d at 1083).
In Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), the New Jersey Supreme Court modified the tier classification process to ensure registrants an opportunity to challenge their tier level. After Doe, potential tier-two or tier-three sex offenders must be provided prior notice and an opportunity to be heard at a classification determination hearing. Doe, 662 A.2d at 382. At a determination hearing, a registrant is entitled to present three judicially-defined types of challenges to his tier designation. See In re G.B., 147 N.J. 62, 685 A.2d 1252 (1996).
On June 16, 1997, four sex offender registrants under Megan's Law filed a joint complaint and an application for a temporary restraining order and preliminary injunction on behalf of themselves as representatives of a class of tier-two and tier-three registrants convicted after the passage of Megan's Law.
The complaint seeks to enjoin the dissemination of community notification and tier classification proceedings under Megan's Law. It alleges that the registration and notification process for tier-two and tier-three registrants violates the class's constitutional rights to due process, privacy, and the rights to be free from double jeopardy and cruel and unusual punishment. The Attorney General of New Jersey and the State's twenty-two county prosecutors are named as defendants.
On June 26, 1997, this Court denied the motion for preliminary injunction as to the named plaintiffs. Subsequently, we dismissed the claims of plaintiffs "Quincy Q" and "Steven S" for failure to state a justiciable claim.
Oral argument on plaintiffs' motion for class certification was scheduled for August 22, 1997.
Two days prior to oral argument, on August 20, 1997, in a similar action involving sex offenders whose offenses were committed prior to the passage of Megan's Law, the Third Circuit found that the notification requirements of Megan's Law do not constitute punishment for purposes of the Ex Post Facto and Double Jeopardy clauses. The Third Circuit also found that constitutional due process required modification to the tier classification procedure and held that the State would now need to bear the burden of persuasion by clear and convincing evidence. E.B., 119 F.3d 1077.
Oral argument on class certification took place as scheduled on August 22, 1997. On August 25, 1997, this Court certified a plaintiff class consisting of all persons required to register as sex offenders under Megan's Law whose offenses were committed on or after October 31, 1994; who have been or will be classified as a tier-two or tier-three offender by a defendant county prosecutor and who have not been classified as a tier-one offender by a state court; who have no other Megan's Law action currently pending before the United States Court for the District of New Jersey; who are not barred from joining the class by the doctrines of issue or claim preclusion, or by any doctrine of abstention, in particular the doctrine of Rooker-Feldman;