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A.A. v. State of New Jersey

August 18, 2003

A. A.; A. B.; A. C., (A MINOR BY M. M. HIS NATURAL PARENT); A. D.; A. E.; A. F.; A. G., (ALL FICTITIOUS INITIALS), INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS, PURSUANT TO FED. R. CIV. 23(A) AND 23(B)(2)
v.
THE STATE OF NEW JERSEY; *JAMES MCGREEVEY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW JERSEY; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, *PETER C. HARVEY, IN HIS OFFICIAL CAPACITY; *JOSEPH R. FUENTES, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW JERSEY STATE POLICE A. A., A. B., A. C., A. D., A. E., A. F., A. G., APPELLANTS
*(SUBSTITUTED PURSUANT TO F.R.A.P. 43(C)).
A. A.; A. B.; A. C., (A MINOR BY M. M. HIS NATURAL PARENT); A. D.; A. E.; A. F.; A. G., (ALL FICTITIOUS INITIALS), INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS, PURSUANT TO FED. R. CIV. 23(A) AND 23(B)(2)
v.
THE STATE OF NEW JERSEY; *JAMES MCGREEVEY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW JERSEY; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, *PETER C. HARVEY, IN HIS OFFICIAL CAPACITY; *JOSEPH R. FUENTES, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW JERSEY STATE POLICE
THE STATE OF NEW JERSEY, *JAMES E. MCGREEVEY, *PETER C. HARVEY AND *JOSEPH R. FUENTES, APPELLANTS
*(SUBSTITUTED PURSUANT TO F.R.A.P. 43(C)).



On Appeal from the United States District Court for the District of New Jersey (D.C. No. 01-cv-04804) District Judge: Hon. Joseph E. Irenas

Before: Sloviter, Rendell, Circuit Judges, and McCLURE,*fn1 District Judge

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Argued June 25, 2003

OPINION OF THE COURT

I. INTRODUCTION

This appeal presents us with the latest in a long string of challenges to New Jersey's Megan's Law. This time, we consider privacy claims as to the newest addition to the existing statutory regime — the creation of a public internet registry posting personal information about convicted sex offenders.

In 1994, seven year old Megan Kanka was abducted, raped, and murdered near her New Jersey home by a neighbor who had previously been convicted of sex offenses against young girls. Thereafter, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, § 170101, 108 Stat. 2038, as amended, 42 U.S.C. §14071, which conditions certain federal funds for law enforcement on the States' adoption of a Megan's Law, so named after Megan Kanka. By 1996, every State, the District of Columbia, and the Federal Government had passed a Megan's Law. While these laws vary from State to State, they generally require convicted sex offenders to register with law enforcement officials, who then notify community members of the registrants' whereabouts. New Jersey's Megan's Law has faced legal challenges every step of the way.

In Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3d Cir. 1996), we upheld the registration provisions of New Jersey's Megan's Law in the face of ex post facto, double jeopardy, bill of attainder, due process, equal protection, and vagueness challenges. A year later in E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, sub nom. W.P. v. Verniero, 522 U.S. 1109 (1998), we rejected claims that the law's notification requirements violated the Ex Post Facto and Double Jeopardy Clauses of the Constitution. Thereafter, we rejected claims that the notification requirement violated registrants' privacy rights in Paul P. v. Verniero (" Paul P. I. "), 170 F.3d 396 (3d Cir. 1999), and Paul P. v. Farmer (" Paul P. II. "), 227 F.3d 98 (3d Cir. 2000).

The story does not end there. In 1995, Doe v. Poritz, 662 A.2d 367 N.J. Sup. Ct. (1995), the New Jersey Supreme Court upheld the constitutionality of the original Megan's Law, conditioned on the implementation of certain safeguards. Specifically, the Court construed the notification provisions to require a "likely to encounter" standard based on geography and further required the State to provide offenders with notice of their proposed scope of notification and an opportunity for judicial review before the notification was undertaken. Id. at 29-30. In light of the Doe Court's qualifications, New Jersey's electorate approved by public referendum in November 2000 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. N.J. Const. art. IV, § 7, ¶ 12. Thereafter, the New Jersey legislature passed a statute authorizing the creation of an internet registry which supplements the existing registration and notification system and contains information about certain high and moderate risk sex offenders. See N. J. Stat. Ann. §§ 2C:7-12 et seq. (2003) ("Registry").

II. PROCEDURAL HISTORY

Appellants ("Registrants") are convicted sex offenders required to provide personal information to be placed on the Registry. They filed suit in the United District Court for the District of New Jersey challenging the constitutional amendment authorizing the creation of the Registry and the Registry itself. Specifically, the Registrants claimed that the Registry violated their rights under the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution and their constitutional right to privacy in their home addresses and in the compilation of information posted on the Registry. Thereafter, they filed a motion for a preliminary injunction to prevent the State from implementing the Registry.

The District Court granted in part and denied in part the Registrants' motion for a preliminary injunction. A.A. v. New Jersey, 176 F. Supp. 2d 274 (D. N.J. 2001). Specifically, it denied their ex post facto, double jeopardy, and privacy claims as to the compilation of information. Id. at 297, 307. It concluded, however, that the Registrants had established a reasonable likelihood of success on the merits of their privacy claim as to their home addresses. Id. at 307. The Registrants have appealed the District Court's denial of their ex post facto, double jeopardy, and privacy claims as to the compilation of information. The State cross-appealed from the District Court's injunction as to the Registrants' home addresses. We scheduled oral argument to hear the appeal and cross- appeal. After the Supreme Court granted certiorari in a Megan's Law case raising identical ex post facto claims — vis-a-vis Alaska's internet registry — we postponed argument. The Supreme Court has since spoken.

In Smith v. Doe, 123 S. Ct. 1140 (2003), the Court held that Alaska's internet registry is not punitive and thus its retroactive application does not violate the Ex Post Facto Clause.*fn2 The Registrants concede that the Supreme Court's decision in Smith effectively disposes of their ex post facto and double jeopardy claims, thereby leaving us to consider only claims as to their privacy interests. Although the Supreme Court in Smith was not presented with and did not ...


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