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A.A. v. State

December 6, 2001

A.A., A.B., A.C. (A MINOR, BY M.M., HIS NATURAL PARENT), A.D., A.E., A.F., AND A.G. (ALL FICTITIOUS INITIALS), INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS, PURSUANT TO FED. R. CIV. P. 23(A) AND 23(B)(2), PLAINTIFFS
v.
STATE OF NEW JERSEY; DONALD T. DIFRANCESCO, IN HIS OFFICIAL CAPACITY AS ACTING GOVERNOR, STATE OF NEW JERSEY; JOHN J. FARMER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL, STATE OF NEW JERSEY; AND CARSON J. DUNBAR, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE NEW JERSEY STATE POLICE, DEFENDANTS.



The opinion of the court was delivered by: Irenas, District Judge

OPINION

The litigation before the Court is the most recent constitutional challenge to New Jersey's "Megan's Law." Plaintiffs, all of whom have been convicted of sex offenses in New Jersey and are subject to registration and community notification pursuant to N.J.S.A. 2C:7-1 et seq. (collectively referred to as "Megan's Law"), instituted this suit on October 15, 2001 challenging the constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution and recent amendments to Megan's Law authorizing the development and maintenance of "a system for making certain information in the central registry . . . publicly available by means of electronic Internet technology." P.L. 2001, Ch. 167 (codified at N.J.S.A. §§ 2C:7-12 to -19) (hereinafter referred to as the "Internet Registry Act"). Soon after filing an initial complaint, Plaintiffs submitted an application for preliminary injunctive relief seeking to prevent the implementation of New Jersey's Internet sex offender registry, which is statutorily authorized to become effective on January 1, 2002. P.L. 2001, c. 167 §10. *fn1

For purposes of this motion, Plaintiffs' claims can be divided into two categories. First, Plaintiffs allege that the Internet Registry Act, by allowing unlimited public access to certain information collected pursuant to Megan's Law's registration provisions, violates their constitutional right to privacy in: (1) their home addresses; and (2) the totality of the information assembled and posted in the Internet sex offender registry. Second, Plaintiff's contend that the retroactive application of the Internet Registry Act to those members of the plaintiff class whose underlying sex offense was committed prior to the law's enactment violates the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. *fn2

For the reasons stated below, the Court will grant, in part, and deny, in part, Plaintiffs' motion for preliminary injunctive relief.

I.

Background

Since its enactment, New Jersey's Megan's Law has been the subject of series of constitutional challenges. See Doe v. Poritz, 142 N.J. 1 (1995); Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996); E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997); Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999); Paul P. v. Farmer, 227 F.3d 98 (3d Cir. 2000). Under the system of registration and notification which eventually emerged from this morass of constitutional litigation, all persons convicted of certain designated sex offenses, including those convicted prior to the law's enactment, are required to register with local law enforcement following the completion of their sentence. N.J.S.A. 2C:7-2. *fn3 Every registrant is required to furnish the local police with a variety of information, including their name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, exact address of legal residence, and date and place of employment. N.J.S.A. 2C:7-4(b). All information collected pursuant to the Act's mandatory registration provisions is assembled and stored in a central registry maintained by the Superintendent of the New Jersey State Police. N.J.S.A. 2C:7-4(d).

Following registration, each sex offender is classified according to his risk of re-offense and the need for community notification. The prosecutor of the county where the offender resides and the prosecutor of the county in which he was convicted jointly determine, based on a matrix of criteria identified in the Megan's Law guidelines, whether the registrant poses a low (tier 1), moderate, (tier 2), or high (tier three) risk of re-offense. N.J.S.A. 2C:7-8(d)(1). *fn4 In compliance with the decisions of the New Jersey Supreme Court and the Third Circuit Court of Appeals, all registrants designated as either high or moderate risk offenders are provided notice and an opportunity to challenge their tier classification in a judicial proceeding in which the state has the burden of persuasion to establish the registrant's tier classification and notification by clear and convincing evidence. See Doe v. Poritz, 142 N.J. 1 (1995); E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997).

Pursuant to the law's existing system of community notification, registration information is not made available to the general public, but is distributed to classes of persons with a statutorily defined need for the information depending on the classification tier assigned to each registrant. As currently defined by the statute, need for the information is based on the reasonable likelihood that an individual or group will encounter the registrant. Entitlement to notification under the "likely to encounter" standard is generally based on geographical proximity to an offender's place of residence and/or places he is likely to frequent. Tier-one notification requires county prosecutors to notify only law enforcement agencies "likely to encounter" the registrant. N.J.S.A. 2C:7-8(c)(1). Tier-two notification requires county prosecutors to notify both law enforcement agencies and registered schools, day care centers, summer camps, and other children's or women's organizations providing care for potential victims in areas where the registrant is likely to be encountered. N.J.S.A. 2C:7-8(c)(2). Finally, for those registered sex offenders posing the highest risk of re-offense, a tier three classification requires county prosecutors to notify, in addition to those organizations notified under the lower-tier levels, all members of the public likely to encounter the registrant. N.J.S.A. 2C:7-8(c)(3). Tier-three notification generally extends to members of the registrant's surrounding neighborhood and places he is likely to frequent.

While breadth of notification is generally left to the discretion of the two county prosecutors (subject, of course, to judicial review), the distribution of notification must comply with the notification guidelines promulgated by the Attorney General and ultimately approved by the Third Circuit. See Paul P. v. Verniero, 227 F.3d 98 (2000). *fn5 These guidelines set forth a uniform method of disseminating notification flyers which is designed to reasonably limit disclosure to those statutorily entitled to receive notification (i.e. those "likely to encounter" the registrant). See Paul P. v. Verniero, 92 F.Supp. 410 (D.N.J. 2000). Two forms of notification are distributed: an unredacted form and a redacted form. Id. The unredacted notices contain the exact home address of the Megan's Law registrant along with the registrant's name, photograph, description, license plate number, vehicle description, and sex offender status. The redacted version of the notice form contains all of this information, but replaces the registrant's exact street address with more general information such as the block number or intersection nearest the offender's residence. Only those individuals who sign a receipt form may receive the unredacted notice. *fn6 Members of the community who are within the scope of the notification, but who decline to sign the receipt form, may only receive the redacted form of the notice. All those receiving notice are bound by the applicable rules of "Rules of Conduct." In general, the "Rules of Conduct" instruct recipients not to share the information contained in the notification flyer with anyone outside the household or not in their care and to otherwise refrain from publicizing the contents of the flyer to the general public. Id. at 411-412. The rules also admonish recipients that actions taken against the registrant, such as harassing, threatening, or physically harming the registrant, his family, or his property, are illegal and subject to prosecution. Finally, in order to further minimize the unauthorized disclosure of registry information to those persons without a statutorily-defined need for the information, the guidelines also set forth procedures governing the methods employed in the delivery of Megan's law notices. Id. at 412.

The Internet Registry Act

In the November 7, 2000 general election, New Jersey's electorate approved by public referendum an amendment to the New Jersey Constitution authorizing the legislature to enact new statutory provisions permitting the disclosure of sex offender registry information to the general public. The amendment, paragraph 12 of Article IV, § 7 of the New Jersey Constitution of 1947, reads as follows:

Notwithstanding any other provision of this Constitution and irrespective of any right or interest in maintaining confidentiality, it shall be lawful for the Legislature to authorize by Law the disclosure to the general public of information pertaining to the identity, specific and general whereabouts, physical characteristics and criminal history of persons found to have committed a sex offense. The scope, manner, and format of the disclosure of such information shall be determined by or pursuant to the terms of the law authorizing the disclosure.

Following adoption of this amendment, both houses of the New Jersey legislature enacted Public Law 2001, Chapter 167, codified at N.J.S.A. §§ 2C:7-12 to -18 ("Internet Registry Act"), which authorizes the creation of a "system for making certain information in the central registry . . . publicly available by means of electronic Internet technology." *fn7 The Internet Registry Act does not replace the existing system of community notification under which individuals within a court-ordered zone of notification are provided with registry information about those offenders in their community whom they are "likely to encounter" nor does it modify the basic procedures for classifying sex offenders according to an individualized assessment of their risk of re-offense and continuing danger to the community. Rather, these recent amendments provide for the creation of a web-based sex offender registry which will operate in conjunction with but independent of the existing system of notification.

The Act contains its own set of provisions governing the content of the website and scope of disclosure, and designating those registrant's to whom it will apply. The most significant feature of this recent legislation and that which forms the central basis of all of Plaintiff's challenges is the undifferentiated disclosure authorized by the Act. The legislature has specifically declared that "the public may, without limitation, obtain access to the Internet registry to view an individual registration record, any part of, or the entire internet registry." P.L. 2001, c. 167, § 2(b).

The Act does not make available on the Internet information about all of the sex offenders registered in New Jersey. Those subject to its provisions consist of a more limited subset of comparatively more dangerous sex offenders, including tier three (high risk offenders) and, with certain exceptions, tier two (moderate risk) offenders as to whom a court has ordered community notification. N.J.S.A. § 2C:7-13(b) and (c). The Internet registry does not contain registry information of tier 1 (low risk) offenders or those tier 2 offenders as to whom a court has ordered no notification. N.J.S.A. § 2C:7-13(f). In addition, certain moderate risk offenders who have committed only a single offense are excluded from the Act, including: (1) juveniles who have been adjudicated delinquent for a sex offense; (2) registrants who have violated N.J.S.A. 2C:14-2 9 (sexual assault) or N.J.S.A. 2C:14-3 (sexual contact) where the offender was related to the victim by blood or affinity to the third degree or was a foster parent, a guardian or stood in loco parentis within the victim's household; (3) registrants who violated such sections if the victim assented to the commission of the offense, but by reason of age was not capable of giving lawful consent. N.J.S.A. § 2C:7-13(d)(1)-(3). The State may, however, override these exemptions upon a showing, by clear and convincing evidence, that "the risk to the general public posed by the registrant is substantially similar to that posed by offenders whose risk of re-offense is moderate and who do not qualify under the enumerated exceptions." N.J.S.A. § 2C:7-13(e).

The particular information contained in the registry, while somewhat more detailed, is similar to the information provided in the unredacted community notification flyers distributed to those "likely to encounter" an offender under the current system of community notification, with a few exceptions. The Internet registry will include: (1) the offender's name and any aliases used by the offender; (2) any Megan's Law sex offenses committed by the offender, including a brief description of the date and location of disposition of any offense; a general description of the offender's modus operandi, if any; (3) the determination of whether the risk of re-offense by the offender is moderate or high; (4) the offender's age, race, sex, date of birth, height, weight, hair, eye color and any distinguishing scars or tattoos; (5) a photograph of the offender and the date on which the photograph was entered into the registry; (6) the make, model, color, year, and license plate number of any vehicle operated by the offender; and (7) the street address, zip code, municipality, and county in which the offender resides. N.J.S.A. § 2C: 7-13(g). However, unlike the notification fliers distributed under the current system of community notification, the Internet registry will not include information about an offender's place of employment or schooling.

In enacting the law, the Legislature declared that "public access to registry information is intended solely for the protection of the public and is not intended to impose additional criminal punishment upon any convicted sex offender." N.J.S.A. § 2C:7-12. Consistent with this purpose, the Act contains certain provisions designed to limit misuse of the registry for purposes inconsistent with the Act's purpose in promoting public safety. For instance, the law expressly prohibits the use of registry information for the purpose of "applying for, obtaining, or denying health insurance, insurance, loans, credit, education, scholarships, or fellowships, benefits, priveleges or services provided by a business establishment (unless for a purpose consistent with the enhancement of public safety), or housing or accomodations." N.J.S.A. § 2C:7-16. The Act also requires the posting of warnings that misuse of registry information to "threaten, intimidate, or harass" may be subject to prosecution and establishes new criminal offenses proscribing the use of registry information to commit a crime or disorderly persons offense. Id.; N.J.S.A. § 2C:7-14(a). *fn8 Finally, the Act authorizes the Attorney General or county or municipal prosecutor having jurisdiction, or any persons aggrieved by "a pattern or practice of misuse" of the registry, to bring legal action for appropriate relief. N.J.S.A. § 2C:7-16(d).

II.

Plaintiffs' seek a preliminary injunction enjoining the State from commencing operation of the Internet sex offender registry. A district court should grant preliminary injunctive relief only if: (1) plaintiffs are likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiffs; (3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the injunction is in the public interest. See Maldonado v. Houstoun, 157 F.3d 179 (3d Cir. 1998).

In light of the fundamental constitutional issues raised by Plaintiffs, the availability of preliminary injunctive relief will turn primarily on whether plaintiffs' have sufficiently demonstrated a reasonable likelihood of success on the merits with respect to each of their constitutional claims.

A.

Plaintiffs maintain that they are likely to prevail on their claim that the retroactive application of the Internet Registry Act to registrants whose commission of their underlying sex offenses preceded enactment of the legislation imposes additional criminal punishment in violation of the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. The Third Circuit's decision in E.B. v. Verniero, 119 F.3d 1077 (1997), in which it held that the existing system of community notification does not inflict "punishment" in violation of the Double Jeopardy or Ex Post Facto clause, provides the background for assessing the merits of Plaintiffs' claims.

The Ex Post Facto Clause prohibits the retroactive application of a law that "inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). *fn9 The Double Jeopardy Clause forbids "multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440 (1989). *fn10 Because "punishment" is generally presumed to have the same meaning for purposes of both constitutional provisions, the threshold issue for purposes of evaluating both claims is whether the challenged measure constitutes punishment. See Kansas v. Hendricks, 521 U.S. 346 (1997) (applying single "punishment" analysis for both clauses); see also, E.B. v. Verniero, 119 F.3d 1077, 1092 (3d Cir. 1997); Cutshall v. Sundquist, 193 F.3d 466, 476-477 (6th Cir. 1999).

At the outset, the Court observes that the Supreme Court's Ex Post Facto and Double Jeopardy jurisprudence has been the source of much confusion, providing no "single formula for deciding which legislative measures constitute punishment and which do not." E.B., 119 F.3d at 1095 (citing California Department of Corrections v. Morales, 514 U.S. 499, 509 (1995)). In the absence of a uniform set of principles, this Court's analysis of this central question is informed by the Third Circuit's decision in E.B. and Supreme Court's subsequent treatment of this issue in United States v. Hudson, 522 U.S. 93 (1997). In E.B., the Third Circuit addressed Ex Post Facto and Double Jeopardy challenges to the Megan's Law's original system of community notification. Applying the three prong inquiry formulated in Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235 (3d Cir. 1996), the Court examined the "actual purpose" of the law's notification provisions as expressed by the legislature, the "objective purpose" of the legislation (in terms of the law's proportionality and the historical treatment of analogous measures), and, finally, its potentially adverse "effects" on those subject to public notification, and ultimately concluded that the dissemination of information about moderate and high risk Megan's Law registrants beyond law enforcement within the Act's guidelines for community notification did not inflict "punishment" for purposes of the Ex Post Facto or Double Jeopardy clauses. *fn11 In evaluating the "actual intent" of the legislation, the Court afforded "substantial deference" to the legislature's declared remedial purpose in protecting the public and preventing future sex crimes. E.B., 119 F.3d at 1105. The Court further found no objective basis for questioning the express remedial intent of the legislature. The Court concluded that the dissemination of information about Tier 2 and 3 sex offenders beyond law enforcement to those reasonably certain to encounter such registrants was "reasonably related" to the legislation's non-punitive goals: "identifying potential recidivists, notifying those members of the public who are likely to interact with such recidivists to the extent necessary to protect the public safety, and helping prevent future incidents of sexual abuse." Id. at 1098. The Court also rejected comparisons between the dissemination of registry information and historical punishments such as public shaming, humiliation and banishment, which, if apt, may have provided an objective basis for regarding the measure as punitive. See id. at 1099-1100. Finally, the Court concluded that neither the direct or indirect effects of community notification rose "to the level of extremely onerous burdens that sting so severely as to compel a conclusion of punishment." Id. at 1102.

Shortly after the Third Circuit's decision in E.B., the Supreme Court issued it opinion in United States v. Hudson, clarifying several aspects of its Double Jeopardy jurisprudence and more clearly articulating the proper framework for determining whether a legislative measure constitutes criminal punishment. See 522 U.S. 93 (1997). In addressing whether a statutory scheme for imposing monetary penalties and occupational debarment on bank officers constituted "punishment" for double jeopardy purposes, the Court applied a two-part inquiry:

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Even in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy as a civil remedy into a criminal penalty. Hudson, 522 U.S. at 99-100 (internal quotation marks and citations omitted).

In assessing whether either the objective purpose of the legislation or its effects are sufficiently punitive to overcome a presumption favoring the legislative judgment, the Court instructed that the factors previously outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963) provide "useful guideposts." These relevant factors include:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment - retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may be connected is assignable for it; (7) whether it appears excessive in ...


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