IN THE MATTER OF REGISTRANT G.H. IN THE MATTER OF REGISTRANT G.A.
May 21, 2018
appeal from Superior Court of New Jersey, Law Division, Union
County and Middlesex County, Docket Nos. ML-00200521,
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).
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
Judges Messano, Accurso, and O'Connor.
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.
(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
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.
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.
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.
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). 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.
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
(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).
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).
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).
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
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."
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