Paul P. v. Verniero
| Decision Date | 16 March 1999 |
| Docket Number | No. 97-5791,97-5791 |
| Citation | 170 F.3d 396 |
| Parties | PAUL P. (a minor, by Laura L., his legal guardian); Quincy Q.; Ronald R.; Steven S. (a minor, by Sally S., his legal guardian) (all fictitious names), 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; William Schmidt, Bergen County Prosecutor; Stephen G. Raymond, Burlington County Prosecutor; Lee A. Solomon, Acting Camden County Prosecutor; Stephen D. Moore; Cape May County Prosecutor; Arthur Marchand, Cumberland County Prosecutor; Clifford J. Minor, Essex County Prosecutor; Andrew Yurick, Gloucester County Prosecutor; Carmen Messano, Hudson County Prosecutor; Stephen B. Rubin, Hunterdon County Prosecutor; Maryann K. Bielamowicz, Mercer County Prosecutor; Robert W. Gluck, Middlesex County Prosecutor; John Kaye, Monmouth County Prosecutor; John B. Dangler, 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 Paul P. (a minor, by Laura L., his legal guardian) and Ronald R. (all fictitious names), on their own behalf and as representatives of a class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward L. Barocas (Argued), Michael Z. Buncher, Office of Public Defender, Trenton, NJ, Attorneys for Appellants.
Joseph L. Yannotti, Peter G. Verniero (Argued), Rhonda S. Berliner-Gold and B. Stephan Finkel, Office of Attorney General of New Jersey, Trenton, NJ; Gladys E. Rodriguez, Office of County Prosecutor, Camden, NJ; Betsy L. Phillips, Office of County Prosecutor, Mays Landing, NJ; Nancy Lotstein, Office of County Prosecutor, Woodbury, NJ; Maureen O'Brien, Office of County Prosecutor, Elizabeth, NJ, Attorneys for Appellees.
Faith S. Hochberg, United States Attorney, Camden, NJ; George S. Leone (Argued), Assistant U.S. Attorney, Newark, NJ; Frank W. Hunger, Assistant Attorney General, Leonard Schaitman, Wendy M. Keats, Attorneys, Appellate Staff Civil Division, Department of Justice, Washington, DC, Attorneys for United States as Amicus-Curiae Supporting Appellees.
Before: SLOVITER and ROTH Circuit Judges, and FULLAM, District Judge *
Plaintiff Paul P. sues on his behalf and on behalf of a class of persons who, having been convicted of specified sex crimes, are required to comply with N.J. Stat. Ann. § 2c:7-1 et seq., known as "Megan's Law," which provides for a system of registration and community notification. Named as defendants are the Attorney General of New Jersey and numerous County Prosecutors (collectively, the ).
In a related action, E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998), this court rejected the claims of comparably situated persons that the community notification requirements violate the Double Jeopardy Clause or the Ex Post Facto Clause of the United States Constitution. That holding of E.B. was predicated on the conclusion that the notification required by Megan's Law does not constitute punishment. Judge, now Chief Judge, Becker dissented to this portion of the holding. The E.B. decision also held that "[t]he Due Process Clause ... would be violated by any Tier 2 or Tier 3 notification that occurred without a prior opportunity to challenge the registrant's classification and notification plan in a hearing at which the prosecutor has the burden of persuasion and must prove her case by clear and convincing evidence." Id. at 1111.
In this case, plaintiffs raise a challenge to Megan's Law that they claim is different from that considered in E.B. They argue that the statutory requirement that the class members provide extensive information to local law enforcement personnel, including each registrant's current biographical data, physical description, home address, place of employment, schooling, and a description and license plate number of the registrant's vehicle, and the subsequent community notification is a violation of their constitutionally protected right to privacy.
The statutory scheme is described in detail in E.B., and we refer only briefly to the salient details. We explained the registration requirements as follows The registrant must provide the following information to the chief law enforcement officer of the municipality in which he resides: 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 legal residence, and date and place of employment. N.J.S.A. 2C:7-4b(1). He must confirm his address every ninety days, notify the municipal law enforcement agency if he moves, and re-register with the law enforcement agency of any new municipality. N.J.S.A. 2C:7-2d to e.
Id. at 1082 (quoting Artway v. Attorney General, 81 F.3d 1235, 1243 (3d Cir.1996)).
The information provided by the registrant is put into a central registry, open to other law enforcement personnel but not to public inspection. Law enforcement officials then use the data provided to apply a "Risk Assessment Scale," a numerical scoring system, to determine the registrant's "risk of offense" and the tier in which the registrant should be classified. In the case of Tier 1 registrants, notification is given only to law enforcement agents "likely to encounter" the registrant. Tier 2, or "moderate risk," notification is given to law enforcement agents, schools, and community organizations "likely to encounter" the registrant. Tier 3, or "high risk," notification goes to all members of the public "likely to encounter" the registrant. Notifications generally contain a warning that the information is confidential and should not be disseminated to others, as well as an admonition that actions taken against the registrant, such as assaults, are illegal.
The prosecutor must provide the registrant with notice of the proposed notification. A pre-notification judicial review process is available for any registrant who wishes to challenge his or her classification.
The plaintiffs are Tier 2 and Tier 3 registrants who have been certified as a class and whose offenses were committed after the enactment of Megan's Law. When Paul P. filed the original complaint on June 16, 1997, alleging that the statute violated plaintiffs' constitutional rights of privacy and due process, as well as the constitutional prohibition against double jeopardy and cruel and unusual punishment, E.B. had not yet been decided. This court decided E.B. shortly thereafter. The State defendants, relying on E.B., moved for summary judgment; plaintiffs argued in opposition that E.B. did not dispose of their privacy claim and that discovery was required, inter alia, on the due process claim. On October 29, 1997, the District Court granted the State defendants' motion for summary judgment as to all but the plaintiffs' due process claim. See Paul P. v. Verniero, 982 F.Supp. 961 (D.N.J.1997). At the request of the plaintiffs and with the consent of the Attorney General, the court certified the order as appealable under Federal Rule of Civil Procure 54(b). The court later granted summary judgment for the State defendants on the due process claim. The plaintiff class limits its appeal to the claim that Megan's Law violates its constitutional rights to privacy. The State defendants and the United States, which has filed an amicus brief, vigorously support the statute.
The legal foundation for plaintiffs' claim is the Supreme Court's recognition that there is "a right of personal privacy, or a guarantee of certain areas or zones of privacy," protected by the United States Constitution. Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This "guarantee of personal privacy" covers "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty.' " Id. This privacy right "has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education." Id. at 152-53 (citations omitted).
Plaintiffs argue that Megan's Law infringes upon their constitutionally protected privacy interests in two ways. One is by the dissemination of information about them, most particularly by disseminating both their home addresses and a "compilation of information which would otherwise remain 'scattered' or 'wholly forgotten.' " Appellants' Br. at 12. Their other claim is that the community notification infringes upon their "privacy interests in their most intimate relationships--those with their spouses, children, parents, and other family members." Appellants' Br. at 12.
Plaintiffs thus seek to invoke the two categories of privacy interests identified by the Supreme Court in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), where the Court stated: Id. at 598-600, 97 S.Ct. 869 (footnotes omitted).
The parties dispute the extent to which our decision in E.B. is dispositive of the privacy issue before us in this case. Plaintiffs contend that no privacy issue was raised, briefed, or argued in E.B. and that the discussion in E.B. relating to cases on which they rely is dictum. The State defendants, on the other hand, regard "[t]he portions of the E.B. decision...
To continue reading
Request your trial
-
Akella v. Michigan Dept. of State Police
... ... at 573, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. Finally, in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court clarified that "reputation alone, apart from some more tangible ... Doe v. Pataki, 3 F.Supp.2d 456, 468 (S.D.N.Y.1998); see also E.B. v. Verniero, 119 F.3d 1077, 1106 (3d Cir.1997). 2 Plaintiffs argue that the "widespread public dissemination" of their names, addresses, birthdates, and ... ...
-
European Connections & Tours, Inc. v. Gonzales, CIVA 1:06CV0426 CC.
... ... Contrary to Plaintiffs intimations, arrest records are not private or protected information. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), for example, the police distributed fliers to area stores alerting them to possible ... See, e.g., Paul P. v. Verniero, 170 F.3d 396, 403 (3d Cir.1999) (holding "specifically that arrest records and related information are not protected by a right to privacy"); ... ...
-
Nyc C.L.A.S.H., Inc. v. Carson
... ... Paris Adult Theatre I v. Slaton , 413 U.S. 49, 65, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (emphasis added); see also Paul P. v. Verniero , 170 F.3d 396, 399 (3d Cir. 1999) ("Th[e] guarantee of personal privacy covers only personal rights that can be deemed fundamental ... ...
-
John v. State
... ... of Public Safety v. Doe, 538 U.S. 1, 6-7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). Plaintiffs argue that a "stigma plus" test applies. See Gunderson, 339 F.3d at 640 ... v. Verniero, 170 F.3d 396, 405 (3rd Cir.1999) (holding that the indirect effects caused by a sex offender registration statute are "too substantially different ... ...
-
Liberty interests in the preventive state: procedural due process and sex offender community notification laws.
...ON CONSTITUTIONAL LAW 17.4, at 67 (3d ed. 1999). (100) See supra notes 17-20 and accompanying text. (101) See, e.g., Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999); Doe v. Poritz, 662 A. 2d 367, 408 (NJ. (102) See, e.g., Paul P., 170 F.3d at 404 (characterizing state interest as "com......
-
The constitutionality of social cost.
...v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) (citing Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003)). (196.) Paul P. v. Verniero, 170 F.3d 396, 405 (3d Cir. 1999); see also, Doe v. Moore, 410 F.3d 1337, 1344M5 (11th Cir. 2005); Doe v. Miller, 405 F.3d 700, 710 (8th Cir. (197.) See Doe......
-
K.s.a. 22-4901 Et Seq. - Offender Registration in Kansas
...64 (1977). 89. Id. citing United States v. McFillin, 713 F.2d 57, 60 (4th Cir. 1981). 90. Id. at 611-12, citing Paul P. v. Verniero, 170 F.3d 396 (3rd Cir. 1999); Dep't of Public Safety v. Superior Court, 190 Ariz. 490, 495, 949 P.2d 983 (1997); State v. Calhoun, 669 So.2d 1351, 1358 (La. A......
-
Privacy and power: computer databases and metaphors for information privacy.
...1987) (holding that hospital's allowing chaplains access to medical records violated constitutional privacy). (229.) Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999) (holding that community notification laws for sex offenders (known as Megan's Law) do not violate constitutional privacy......