The opinion of the court was delivered by: Irenas, District Judge.
Presently before the Court is the summary judgment motion of plaintiff
sex offenders in this class action challenge to New Jersey's Registration
and Community Notification Act, N.J.S.A. 2C:7-1 et seq. ("Megan's Law").
Also before the Court is the cross-motion for summary judgment on behalf
of defendants, John J. Farmer, Jr., Jeffrey S. Blitz, William Schmidt,
Stephen G. Raymond, Lee A. Solomon, Stephen D. Moore, Arthur Marchand,
Clifford J. Minor, Andrew Yurick, Carmen Messano, Stephen B. Rubin,
Maryann K. Bielamowicz, Robert W. Gluck, John Kaye, John B. Dangler,
Daniel J. Carluccio, Ronald S. Fava, Ronald A Epstein, Meanie B.
Campbell, Dennis O'Leary, Edward Neafsey, John J. O'Reilly, and the
United States of America. For the reasons set forth below, plaintiffs'
motion is granted and defendants' cross-motion is denied.
This matter represents the latest skirmish in the battle over "Megan's
Law" in New Jersey.*fn1 Plaintiffs are Tier 2 or 3 registrants under
Megan's Law whose offenses were committed after the law's enactment. In
their initial complaint, filed with this Court on June 16, 1997,
plaintiffs challenged the constitutionality of the Law, alleging that it
violated their rights to privacy, due process, and to be free from double
jeopardy and cruel and unusual punishment.
Prior to the Court's decision on the merits, the Third Circuit found
that the community notification provisions of Megan's Law do not
constitute punishment for purposes of the Ex Post Facto and Double
Jeopardy Clauses and held that the due process clause "would be violated
by any Tier 2 or Tier 3 notification that occurred without a prior
opportunity to challenge the registrant's classification and notification
plan in a hearing at which the prosecutor has the burden of persuasion and
must prove her case by clear and convincing evidence." E.B. v. Verniero,
119 F.3d 1077, 1111 (3d Cir. 1997), cert. denied sub nom W.P. v.
Verniero, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). In light
of the Third Circuit's opinion in E.B., this Court granted defendants'
motion for summary judgment as to plaintiffs' cruel and unusual
punishment and double jeopardy claims, but denied summary judgment on the
due process claim. The Court also granted summary judgment as to
plaintiffs' privacy claim.
Plaintiffs appealed the Court's ruling on their privacy claim to the
Third Circuit. During the pendency of this appeal, plaintiffs-appellants
filed six motions to supplement the record and appellee, former Attorney
General Verniero, filed three motions to supplement the record. The Third
Circuit declined to consider the materials proffered by these motions and
proceeded to affirm this Court's holding that Megan's Law did not violate
plaintiffs' constitutional rights to privacy. Paul P. v. Verniero,
170 F.3d 396 (3d Cir. 1999). However, the Circuit Court remanded the case
back to this Court so that it could consider the material contained in
the motions to supplement and "determine whether any action is
appropriate" in light of Third Circuit precedent. Id. at 406.
Specifically, the Third Circuit cited its previous holding in Fraternal
Order of Police v. Philadelphia, 812 F.2d 105, 118 (3d Cir. 1987), that
"the fact that protected information must be disclosed to a party who has
a particular need for it . . . does not strip the information of its
protection against disclosure to those who have no similar need."
"[S]ummary judgment is proper `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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.
1986). The role of the court is not "to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
At the outset, it is important to delineate those issues which are not
presently before this Court. It is not currently disputed that plaintiffs
have a constitutionally protected privacy interest at stake.*fn2 In Paul
P., the Third Circuit held that plaintiffs had a constitutionally
protected, "nontrivial" privacy interest in preventing the disclosure of
their home addresses. 170 F.3d at 404. This holding was in congruence
with the previous opinion of the New Jersey Supreme Court that "public
disclosure of plaintiff's home address does implicate privacy interests."
Doe v. Poritz, 142 N.J. 1, 84, 662 A.2d 367, 409 (1995).
The present challenge to Megan's Law is not a challenge to the amount
or type of information disclosed under the Law or to the scope of
notification per se. These issues have been dealt with at length by the
New Jersey courts in Doe and in the case of In re Registrant R.F.,
317 N.J. Super. 379, 722 A.2d 538 (App. Div. 1998), and the Attorney
General has done an admirable job of applying the statute in a manner
which conforms with the holdings in these cases. Plaintiffs here
challenge not the substance or scope of notification, but the method of
notification. In the present motion and accompanying exhibits, plaintiffs
claim that the procedures currently used to distribute Megan's Law
notices have failed to prevent the disclosure of confidential information
to persons not entitled to that information under the Act.
Plaintiffs argue that, in practice, the current system has failed to
prevent the widespread dispersal of confidential information to persons
without a "particular need for it." Paul P., 170 F.3d at 406. They argue
that the current system of applying and enforcing Megan's Law is flawed
because: (1) the Law lacks penalties to deter the unauthorized disclosure
of information*fn3; (2) there is no uniform requirement
that the registration process occur in a setting which protects the
registrant's privacy*fn4; (3) many counties have inconsistent or unclear
rules regarding which school staff members are entitled to receive
information concerning Tier 2 offenders*fn5; (4) not all counties
deliver Tier 3 notices by hand to an authorized adult*fn6; and (5) home
addresses are included in all Tier 2 notices and are disclosed to all
notice recipients despite the fact that this information is not needed by
In response to these arguments, defendants point to the procedures
currently in place and argue that they are more than adequate to prevent
the majority of unauthorized disclosures. Defendants cite several
portions of the Attorney General Guidelines which caution against improper
disclosure of Megan's Law information.*fn7 For example, the Guidelines
provide that Tier 2 notices given to community organizations and schools
"shall caution the recipients against unauthorized dissemination" and
suggest that "[i]t should be emphasized that it is the responsibility of