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In re Registrant G.H.

Superior Court of New Jersey, Appellate Division

August 6, 2018

IN THE MATTER OF REGISTRANT G.H. IN THE MATTER OF REGISTRANT G.A.

          Argued May 21, 2018

          On appeal from Superior Court of New Jersey, Law Division, Union County and Middlesex County, Docket Nos. ML-00200521, ML-07130018.

          Stephanie A. Lutz, Assistant Deputy Public Defender, argued the cause for appellants G.H. and G.A. (Joseph E. Krakora, Public Defender, attorney; Stefan J. Erwin, Assistant Deputy Public Defender, of counsel; Stephanie A. Lutz, of counsel and on the briefs).

          Emily R. Anderson, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Emily R. Anderson, of counsel and on the briefs).

          Before Judges Messano, Accurso, and O'Connor.

          OPINION

          MESSANO, P.J.A.D.

         We consolidated these appeals to issue a single opinion because they present the same legal issue. G.H. and G.A. were convicted of sexual offenses, see N.J.S.A. 2C:7-2(b), prior to 2002, when the Legislature amended the registration provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23, by enacting a new subsection, N.J.S.A. 2C:7-2(g) (subsection (g)), see L. 2001, c. 392. Subsection (g) provides in relevant part:

A person required to register under this section who has been convicted of . . . more than one sex offense . . . or who has been convicted of . . . aggravated sexual assault pursuant to [N.J.S.A. 2C:14-2(a)] or sexual assault pursuant to [N.J.S.A. 2C:14-2(c)(1)] is not eligible . . . to make application to the Superior Court of this State to terminate the registration obligation.
[(Emphasis added).]

         Subsection (g) took "effect immediately" on January 8, 2002. L. 2001, c. 392, § 2. As a result, the lifetime registration requirements of Megan's Law became "permanent[ and] irrevocable" for certain offenders. In re State ex rel. C.K., 233 N.J. 44, 66 (2018).

         Neither G.H. nor G.A. has committed an offense for more than fifteen years since his release from custody. Prior to the adoption of subsection (g), both would have been eligible for relief from lifetime registration pursuant to N.J.S.A. 2C:7-2(f) (subsection (f)), which provides any registrant may

make application to the Superior Court . . . to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.
[Ibid.]

         However, because G.H. was convicted of more than one sexual offense, and both G.H. and G.A. were convicted of offenses listed in subsection (g), the respective trial courts denied their requests to terminate registration obligations.

         G.H. and G.A. argue the Legislature did not intend "subsection (g) to apply retroactively" to convictions that predated its passage, and, "[r]egardless of legislative intent," retroactive application would result in "manifest injustice and interference with vested rights." The State contends G.H. and G.A. were not eligible for and did not seek relief under subsection (f) until after the Legislature enacted subsection (g), and therefore the trial courts did not apply subsection (g) retroactively. Alternatively, the State contends the Legislature intended subsection (g) to apply retroactively to registrants like G.H. and G.A.

         I.

         In Doe v. Poritz, 142 N.J. 1, 12-13 (1995), the Court upheld the constitutionality of the registration and community notification provisions of Megan's Law, first enacted in 1994. As the Court noted, the registration obligations mandated by N.J.S.A. 2C:7-2 are significant and trigger additional consequences, notably potential criminal liability for failing to register. Id. at 21-22; see N.J.S.A. 2C:7-2(a)(3) (making it a third-degree crime for failing to register).[1] The notification provisions require community-wide dissemination of the location of a sex offender's residence. N.J.S.A. 2C:7-6 to -10 (requiring public notification of a sex offender's residence upon "release to the community"). The Doe Court concluded the legislation was "clearly and totally remedial in purpose" and "designed simply and solely to enable the public to protect itself from the danger posed by sex offenders." Doe, 142 N.J. at 73.

         Although the law imposed these "lifetime requirements" on every defendant when convicted, id. at 21, subsection (f) provided potential relief. "The underlying assumption of [subsection (f)] [was] that when a registrant, who has been offense-free for fifteen or more years, no longer poses a risk to the safety of the public, keeping him bound to the registration requirements no longer serves a remedial purpose." C.K., 233 N.J. at 64.

         Subsection (g) was enacted to comply with 1996 amendments to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994 (Wetterling Act), Pub. L. No. 104-236, §§ 3-7, 110 Stat. 3096, 3097 (repealed 2006), and ensure continued federal funds for New Jersey. C.K., 233 N.J. at 61; In re L.E., 366 N.J.Super. 61, 65-66 (App. Div. 2003). The Wetterling Act "direct[ed] the federal Attorney General to establish guidelines for state programs such as Megan's Law that require the registration of persons guilty of offenses of the kind committed by the registrants herein and prescribes the length of time for which offenders must remain registered." L.E., 366 N.J. Super, at 66 (citing 42 U.S.C. § 14071(a)(1)) (repealed by U.S.C. §§ 16901-91). "As a result of the Wetterling Act . . . all fifty states and the District of Columbia ha[ve] both sex offender registration systems and community notification programs." United States v. Begay, 622 F.3d 1187, 1190 (9th Cir. 2010).

         Congress has since repealed the Wetterling Act and replaced it with the Adam Walsh Child Protection and Safety Act. C.K., 233 N.J. at 61 (citing Pub. L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901-91 (repealing 42 U.S.C. §§ 14071-73))). Title I of that act, the Sex Offender Registration and Notification Act (SORNA), "establishe[d] a national baseline for sex offender registration and requires that states receiving federal crime funds substantially comply with the guidelines it outlines." Ibid. (citing 34 U.S.C. § 20927; 34 U.S.C. § 10151). "[M]ost states, including New Jersey, have not substantially implemented SORNA." Id. at 61-62 (citation omitted).

         In C.K., 233 N.J. at 76, the Court concluded subsection (g) violated the due process rights of juveniles, imposing "continued constraints on their lives and liberty . . . long after they have become adults," thereby transcending the remedial purpose of Megan's Law and "tak[ing] on a punitive aspect that cannot be justified by our Constitution." The Court was not required to and did not address whether irrevocable lifetime registration pursuant to subsection (g) applied to a registrant - adult or juvenile - who committed his offense prior to subsection (g)'s effective date. See id. at 50 (explaining C.K. was adjudicated delinquent in 2003).

         The Violent Predator Incapacitation Act (VPIA) was enacted as a "component" of Megan's Law at the time of its passage in 1994. State v. Schubert, 212 N.J. 295, 305 (2012). The VPIA specifically required that a court impose a "special sentence of community supervision for life" (CSL) on all defendants convicted of certain offenses. N.J.S.A. 2C:43-6.4(a). The Legislature subsequently amended the statute, replacing CSL with parole supervision for life (PSL). L. 2003, c. 267, § 1. The amendment was more than "a simple change in nomenclature," State v. Perez, 220 N.J. 423, 441 (2015), and significantly increased penal consequences for violations of the conditions of supervision. See State v. Hester, ___ N.J. ___, ___ (2018) (slip op. at 7-9) (explaining the differences between CSL and PSL and the consequences of those differences).

         However, despite these legislative changes, one provision of the VPIA that "mirrors [subsection (f)]," In re J.S., 444 N.J.Super. 303, 312 (App. Div.), certif. denied, 225 N.J. 339 (2016), has remained constant. Pursuant to N.J.S.A. 2C:43-6.4(c), an offender who has not committed a crime for fifteen years since his last conviction or release, and who no longer poses a threat to public safety, "may petition the Superior Court for release from . . . supervision."

         Thus, the Legislature's decision to retain N.J.S.A. 2C:43-6.4(c) results in the anomalous situation of permitting some registrants, who have clearly and convincingly demonstrated their successful rehabilitation, relief from the onerous conditions of lifetime supervision, see N.J.A.C. 10A:71-6.11(b); Schubert, 212 N.J. at 307 (noting "significant restrictions . . . attendant to [CSL]"), yet at the same time foreclosing them any ...


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