119 F.3d 1077 (3rd Cir. 1997), 96-5132, E.B. v. Verniero

Docket Nº:Appellant in No. 96-5132.
Citation:119 F.3d 1077
Party Name:E.B., (A Fictitious Name) v. Peter VERNIERO [*], Attorney General of the State of New Jersey; Charles R. Buckley, Acting Bergen County Prosecutor; James Mosley, Chief of Police of the City of Englewood, New Jersey. Peter Verniero*, Attorney General of the State of New Jersey,
Case Date:August 20, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1077

119 F.3d 1077 (3rd Cir. 1997)

E.B., (A Fictitious Name)

v.

Peter VERNIERO [*], Attorney General of the

State of New Jersey; Charles R. Buckley, Acting

Bergen County Prosecutor; James Mosley,

Chief of Police of the City of

Englewood, New Jersey.

Peter Verniero*,

Attorney General of the State of New Jersey,

Appellant in No. 96-5132.

W.P., et al., Individually and as Representatives of a Class

pursuant to Fed. R. Civ. P. 23 (a) and 23 (b)(2),

v.

Peter VERNIERO [**], Attorney General of New

Jersey; Jeffrey S. Blitz, Atlantic County Prosecutor;

Charles R. Buckley, Acting Bergen County Prosecutor; Stephen

G. Raymond, Burlington County Prosecutor; Joseph F. Audino,

Acting Camden County Prosecutor; Stephen D. Moore, Cape May

County Prosecutor; Neil S. Cooper, Acting Cumberland County

Prosecutor; Clifford J. Minor, Essex County Prosecutor;

Harris Y. Cotton, Gloucester County Prosecutor; Carmen

Messano, Hudson County Prosecutor; Sharon B. Ransavage,

Hunterdon County Prosecutor; Maryann K. Bielamowicz, Mercer

County Prosecutor; Robert W. Gluck, Middlesex County

Prosecutor; John Kaye, Monmouth County Prosecutor; W.

Michael Murphy, Jr., Morris County Prosecutor; Daniel J.

Carluccio, Ocean County Prosecutor; Ronald S. Fava, Passaic

County Prosecutor; Ronald A. Epstein, Salem County

Prosecutor; Melaine B. Campbell, Acting Somerset County

Prosecutor; Dennis O'Leary, Sussex County Prosecutor; Edward

Neafsey, Acting Union County Prosecutor; John J. O'Reilly,

Warren County Prosecutor.

W.P., et al., Individually and as Representatives of a Class

pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2)

Appellants in No. 96-5416.

Nos. 96-5132, 96-5416.

United States Court of Appeals, Third Circuit

August 20, 1997

Argued Oct. 21, 1996.

As Amended Sept. 4, 1997.

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Joseph L. Yannotti (Argued), Rhonda S. Berliner-Gold, B. Stephen Finkel, Office of Attorney General of New Jersey, Trenton, NJ, Attorneys for Appellant Attorney General of New Jersey No. 96-5132.

Judith A. Eisenberg, Office of County Prosecutor, Bergen County, Hackensack, NJ, Attorney for Appellee Charles R. Buckley, Acting Bergen County Prosecutor No. 96-5132.

Gerald R. Salerno (Argued), Aronsohn & Weiner, Hackensack, NJ, Attorney for Appellee E.B. (A Fictitious Name) No. 96-5132.

John J. Gibbons, Lawrence S. Lustberg, James E. Ryan (Argued), Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Michael Z. Buncher, Edward Barocas, Office of Public Defender Special Hearings Unit, Trenton, NJ, Attorneys for Appellants W.P., et al., Individually and as Representatives of a Class Pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2) No. 96-5416.

Jane D. Plaisted, Office of County Prosecutor, Essex County, Newark, NJ, Attorney for Appellees Blitz, Buckley, Raymond, Audino, Moore, Cooper, Minor, Cotton, Messano, Ransavage, Bielamowicz, Gluck, Kaye, Murphy, Carluccio, Fava, Epstein, Campbell, O'Leary, Neafsey, and O'Reilly No. 96-5416.

Thomas E. Bracken, Office of County Prosecutor, Sussex County, Newton, NJ, Attorney for Appellee Dennis O'Leary No. 96-5416.

Peter Verniero (Argued), Joseph L. Yannotti, B. Stephen Finkel, Jane Grall, Rhonda Berliner-Gold, Office of Attorney General of New Jersey, Trenton, NJ, Attorneys for Appellee Peter Verniero Attorney General of New Jersey No. 96-5416.

Ronald K. Chen (Argued), Rutgers Constitutional Litigation Clinic Newark, NJ, Attorney for Amicus Curiae ACLU-NJ No. 96-5416.

Faith S. Hochberg (Argued), George S. Leone, Office of United States Attorney, Newark, NJ, Leonard Schaitman, Wendy M. Keats, U.S. Department of Justice, Washington, DC, Attorneys for Amicus Curiae United States of America No. 96-5416.

Geoffrey S. Berman, Latham & Watkins,New York City, Attorney for Amici M. Kanka, R. Kanka, D. Zimmer, R. Cunningham, N. Deal, J. Dunn, T. Fowler, T. Manton, S. Molinari, J. Saxton and C. Smith No. 96-5416.

BEFORE: BECKER, STAPLETON and NYGAARD, Circuit Judges.

OPINION OF THE COURT

TABLE OF CONTENTS Page I. INTRODUCTION ............................................ 1081 II. THE MEGAN'S LAW SCHEME .................................. 1081 III. THE PRIOR PROCEEDINGS ................................... 1087 IV. THE ROOKER-FELDMAN ISSUE ................................ 1090 V. THE EX POST FACTO AND DOUBLE JEOPARDY ISSUES ............ 1092 A. The Artway Standard .................................. 1093 B. The Impact Of Ursery And Hendricks ................... 1093 C. Legislative Purpose .................................. 1096 Page D. Objective Purpose ..................................... 1097 E. Effects ............................................... 1101 F. Satisfaction Of The Artway Test ....................... 1105 VI. THE PROCEDURAL DUE PROCESS ISSUES ........................ 1105 A. Deprivation Of A Liberty Interest ..................... 1105 B. Standards For Determining The Process Due ............. 1106 C. Allocation Of The Burden Of Persuasion ................ 1107 D. Extent Of The State's Evidentiary Burden .............. 1110 VII. CONCLUSION ............................................... 1111 Page 1081

STAPLETON, Circuit Judge:

I. INTRODUCTION

On July 29, 1994, Megan Kanka, a seven year old child, was abducted, raped, and murdered near her home. The man who confessed to Megan's murder lived in a house across the street from the Kanka family and had twice been convicted of sex offenses involving young girls. Megan, her parents, local police, and the members of the community were unaware of the accused murderer's history; nor did they know that he shared his house with two other men who had been convicted of sex offenses.

By October 31, 1994, New Jersey had enacted the Registration and Community Notification Laws, Pub.L.1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11) as part of a ten-bill package collectively referred to as "Megan's Law." This legislation required registration by those who had committed certain designated crimes involving sexual assault and provided for the dissemination of information about those required to register. Other states followed suit with their own versions of Megan's Law and Congress passed a statute requiring a state program of registration and notification as a condition of receiving certain federal funds. By May of 1996, forty-nine states had adopted sex offender registration laws and thirty-two states maintained some form of community notification program.

We have before us challenges to the constitutionality of the notification requirements of New Jersey's Megan's Law based on the Ex Post Facto, Double Jeopardy, and Due Process Clauses of the United States Constitution. The issues before us are difficult but relatively narrow. We are not called upon to decide whether Megan's Law can constitutionally be applied to one who has committed one of the designated sex crimes after its enactment. Nor, of course, is it our responsibility to determine whether the policy judgments reflected in Megan's Law are prudent ones.

We hold that (1) the notification requirements of Megan's Law do not constitute state inflicted "punishment" on Tier 2 and Tier 3 registrants for purposes of the Ex Post Facto and Double Jeopardy Clauses; (2) the Due Process Clause of the United States Constitution forecloses New Jersey from placing the burden of persuasion on the registrant in a proceeding challenging a Tier 2 or Tier 3 classification and notification plan; and (3) the Due Process Clause requires the state at such a proceeding to shoulder the burden of justifying the classification and notification plan by clear and convincing evidence.

II. THE MEGAN'S LAW SCHEME

A.

Public reaction to Megan's murder was intense, and New Jersey's governor and legislature responded quickly. By August 15, 1994, two weeks after the discovery of Megan's body, bills providing for registration and community notification had been introduced in the General Assembly. Two weeks later, the General Assembly declared the bills an "emergency," allowing them to bypass committee and be passed the same day.

In the Senate, no registration or notification bills had been introduced as of August 29, 1994. However, the Law and Public

Page 1082

Safety Committee held a hearing upon pending legislation that pre-dated Megan's Law and would have required victim notification on the release of offenders. In connection with its consideration of that legislation, the Committee received testimony and/or written reports from, inter alia, the American Civil Liberties Union, municipal officials, inmates, state and federal legislators, and the Attorney General on issues related to sex offender registration and community notification. Registration and community notification bills identical to their General Assembly counterparts were introduced in the Senate on September 12, 1994. After hearing testimony from the ACLU, the New Jersey Coalition of Crime Victims, and corrections officials on September 26, 1994, the Senate Law and Public Safety Committee revised the bills by: (1) supplementing the list of crimes which require registration, 1 (2) directing the Attorney General to consult with a twelve-member Advisory Council of experts to establish guidelines concerning the risk of reoffense, (3) identifying certain factors material to the determination of risk of reoffense, and (4) narrowing the scope of community...

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