On appeal from the Superior Court of New Jersey, Law Division, Mercer County, MER-L-20-04.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Fall*fn1 and C.S. Fisher.
This appeal requires us to consider the constitutionality, under the Supreme law of the land embodied in the Federal Constitution, of a provision of the New Jersey Constitution.
Plaintiffs appeal from a judgment, entered on December 20, 2004, dismissing their complaint challenging Article IV, section VII, paragraph 12 of the New Jersey Constitution (hereinafter Paragraph 12),*fn2 and its implementing legislation, N.J.S.A. 2C:7-12 to -19 (hereinafter "Internet Registry Act" or "the Act" adopted as part of and supplement to "Megan's Law," N.J.S.A. 2C:7-1 to -11).*fn3 The constitutional amendment authorizes, and the statute implements, the posting of information about sex offenders on the Internet. N.J.S.A. 2C:7-13. The Act requires that information contained in the central registry of sex offender registrations, maintained by the Superintendent of the State Police, be made available to the public on the internet. See N.J.S.A. 2C:7-4, -13.
In essence, plaintiffs assert that "[u]nlike the prior notification law, which was upheld against constitutional attack in large part because it only permitted tailored notification to persons likely to encounter the offender, this new notification scheme requires unlimited, world-wide notification via the Internet." Plaintiffs assert that Paragraph 12 "singles out sex offenders for lesser protection under state law" and that no court has held that such singling out "comports with the federal constitution." They further assert that Paragraph 12 "is a rare example of a per se violation of the federal Equal Protection Clause," and "runs afoul of the rights guaranteed Plaintiffs under the Ex Post Facto and Double Jeopardy clauses of the United States Constitution" and, assuming that the State constitutional provision is itself unconstitutional, that the Internet Registry Act violates the right of privacy recognized by the State Constitution, as well as the ex post facto and double jeopardy clauses of the State Constitution.*fn4
We affirm substantially for the reasons expressed in Judge Andrew Smithson's opinion of December 20, 2004, as developed hereinafter.
In Doe v. Poritz, 142 N.J. 1 (1995), our Supreme Court held that "Megan's Law" (L. 1994, c. 128, 133), N.J.S.A. 2C:7-1 to -11, which provided for registration and community notification regarding sex offenders,*fn5 was constitutional. Under Megan's Law, defendants who are convicted, adjudicated delinquent, or found not guilty by reason of insanity of a sex offense are required to register with designated State officials, N.J.S.A. 2C:7-2, and the Superintendent of State Police is obligated to maintain a central registry of all Megan's Law registrations. N.J.S.A. 2C:7-4(d).
Each registration under Megan's Law must include the registrant's "name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary residence, date and place of employment, ... any anticipated or current school enrollment," "date and place of each conviction, adjudication or acquittal by reason of insanity, indictment number, fingerprints, ... a brief description of the crime or crimes for which registration is required," and "[a]ny other information that the Attorney General deems necessary to assess [the] risk of future commission of a crime." N.J.S.A. 2C:7-4(b). See also Doe v. Poritz, supra, 142 N.J. at 21; N.J.S.A. 2C:7-8 (requiring the Attorney General to promulgate guidelines for notification under the Act).
Each Megan's Law registrant is assigned to one of "three levels of notification depending upon the risk of re-offense," see N.J.S.A. 2C:7-8(a), (c), as determined by a weighing of factors, "low" risk (Tier One), "moderate" risk (Tier Two), or "high" risk (Tier Three). N.J.S.A. 2C:7-8c. The degree of community notification in each case is determined by the registrant's tier assignment. N.J.S.A. 2C:7-5 to -8. See Doe v. Poritz, supra, 142 N.J. at 21-22. However, nothing in Megan's Law "shall be construed to prevent law enforcement officers from providing community notification concerning any person who poses a danger under circumstances that are not provided for in [the] act." N.J.S.A. 2C:7-10.
In Doe v. Poritz, supra, the Supreme Court held that the registration and community notification provisions of Megan's Law did not constitute "punishment," and therefore did not violate the ex post facto, double jeopardy, cruel and unusual punishment, or bill of attainder clauses of the Federal Constitution, or the equivalent provisions of the State Constitution (which were to be interpreted consistently with the Federal Constitution, 142 N.J. at 42-43). Rather, the legislation was "remedial" in nature and free of "punitive" intent. Ibid. The Court concluded:
[A] statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish. [Id. at 43.]
See also id. at 73-75 (statute is "remedial," it is designed to protect the public, and does not constitute "punishment").*fn6
With respect to the right to privacy, the Court further held that the registration and community notification provisions of Megan's Law did not deprive sex offenders of their constitutional right to privacy under either the Federal or State Constitutions. A convicted offender's privacy interests were minimally implicated by the public disclosure of his or her home address as part of the information disclosed and by the public disclosure of the other relevant information. In any event, any privacy interests were "substantially outweighed" by the strong State interest in public disclosure for the purpose of protecting the public from the danger of recidivism by sex offenders. Therefore, there was no constitutional violation. Id. at 77-91.
In addition, the Court held that Megan's Law did not violate the equal protection rights of sex offenders under either the Federal or State Constitutions. Sex offenders were not a "suspect class," and the State's decision to treat them as a class was not arbitrary. Therefore, the registration and community notification provisions of Megan's Law were subject only to a "rational basis" analysis, which posed no constitutional concern for the Court. Doe v. Poritz, supra, 142 N.J. at 91-95. However, in order to sustain the constitutionality of the law, the Court held that the prosecutor's decision to provide community notification, including the tier classification which affected the scope of notification, must be subject to judicial review before such notification was given. Id. at 29-30. Such review was constitutionally required as a matter of procedural due process and fundamental fairness. The Court outlined detailed instructions regarding the nature of the review proceedings and the procedures to be followed. Id. at 12, 30-40, 99-109.
In summary, Doe v. Poritz, supra, described its holding in the following words:
The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State's or our country's fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.*fn7
Following Doe v. Poritz, supra, the Supreme Court upheld the Attorney General's Registrant Risk Assessment Scale under which prosecutors assess the risk of re-offense and appropriate tier level of notification. In re Registrant J.M., 167 N.J. 490, 501-04 (2001); In re C.A., 146 N.J. 71, 88-110 (1996). The Court emphasized, however, that a court reviewing a tier classification should make its own determination on a case-by-case basis, using the scale only as a guide. In re C.A., supra, 146 N.J. at 108-09.
In In re Registrant G.B., 147 N.J. 62, 85 (1996), the Court further held that a registrant may lodge "three distinct challenges to his [or her] tier designation": "a registrant may introduce evidence [(1)] that the calculation that led to the Scale score was incorrectly performed either because of a factual error, because the registrant disputes a prior offense, because the variable factors were improperly determined, or for similar reasons"; (2) "that the Scale calculations do not properly encapsulate his [or her] specific case[,]" and he or she "deserves to be placed in a tier other than that called for by the prosecutor's Scale score"; and (3) "that the extent of notification called for by his [or her] tier categorization is excessive because of unique aspects of his [or her] case." Ibid. In other words, a registrant may lodge challenges that "relate to characteristics of the individual registrant and the shortcomings of the Scale in [the registrant's] particular case." Ibid. A registrant, however, may not challenge "the Scale itself or ... the weight afforded to any of the individual factors that comprise the Scale." Ibid.
The G.B. Court further held that, subject to the trial court's discretion, expert testimony is admissible with respect to the permissible types of challenges to a tier designation. At all times, however, "[t]he trial court has the ultimate authority to decide what weight to attach to the Scale and what weight to attach to expert testimony." Ibid. In other words, the courts have "the non-delegable responsibility to determine a registrant's tier classification and [therefore] the scope of community notification." Ibid. Moreover, the State has the burden to prove the propriety of the tier classification and notification plan by clear and convincing evidence. In re M.F., 169 N.J. 45, 54 (2001). On those bases Megan's Law has been sustained and implemented in New Jersey.
Fundamental challenges to Megan's Law have been similarly unsuccessful in the federal courts. See Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996) (registration is not "punishment" and therefore does not violate ex post facto, double jeopardy, or bill of attainder provisions of the federal constitution; "repetitive and compulsive" classification does not violate equal protection, and the law is not violative of due process or unconstitutionally vague); E.B. v. Verniero, 119 F.3d 1077, 1081, 1105-1107 (3d Cir. 1997), cert. denied, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed. 2d 105 (1998) (notification requirement not "punishment" and not violative of ex post facto or double jeopardy provisions of federal constitution, but due process required State to prove by clear and convincing evidence that Tier Two or Three classification and notification plan was appropriate prior to notification); Paul P. v. Verniero, (hereinafter Paul P. I) 170 F.3d 396 (3d Cir. 1999) (no violation of right to privacy); Paul P. v. Farmer, (hereinafter Paul P. II) 227 F.3d 98 (3d Cir. 2000) (Attorney General Guidelines regarding community notification do not infringe on privacy interests). Plaintiffs insist that the Internet postings provide far more access to registrant information and therefore constitute "punishment" which was not involved in the original Megan's Law as sustained, with modification to provide for hearings on contested risk assessments, in Doe v. Poritz and by the Third Circuit. Plaintiffs correctly note that the opinions upholding community notification focused on the relatively limited nature of the notification of Tier Two and Tier Three offenders subject to public disclosure. See N.J.S.A. 2C:7-8(c) (scope of notification). Plaintiffs assert, in any event, that Paragraph 12 violates the Equal Protection clause of the Federal Constitution.
The constitutional amendment embodied in Paragraph 12 trumps all other provisions of the State Constitution. It provides:
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. [N.J. Const. art. IV, § 7, ¶ 12 (emphasis added).]
In light of the language of Paragraph 12, there can be little doubt that any other provision of the State Constitution can be utilized to prohibit disclosures regarding those "found to have committed a sex offense." Moreover, in the absence of any legislative or other history to the contrary, the introductory language of Paragraph 12 cannot be read to apply only to those offenders convicted after its effective date. Therefore, any other State constitutional provisions concerning retroactive impact cannot be said to apply independent of the fact they have previously been read to be coextensive with analogous provisions of the Federal Constitution.
We reject plaintiffs' challenges to Paragraph 12 under the double jeopardy and ex post facto provisions of the Federal Constitution. In fact, the Third Circuit denied a preliminary injunction in this case based on those arguments and plaintiffs' contentions that their privacy rights were violated. See A.A. v. New Jersey, 341 F.3d 206, 209 (3d Cir. 2003) (relying ...