Artway v. Attorney General of State of N.J., 95-5157
| Citation | 81 F.3d 1235 |
| Decision Date | 12 April 1996 |
| Docket Number | 95-5194 and 95-5195,No. 95-5194,Nos. 95-5157,No. 95-5157,No. 95-5195,95-5157,95-5194,95-5195,s. 95-5157 |
| Parties | Alexander A. ARTWAY v. The ATTORNEY GENERAL OF the STATE OF NEW JERSEY; Chief of Police of Woodbridge Township, New Jersey; The Superintendent of the New Jersey State Police Attorney General of New Jersey and Superintendent of the New Jersey State Police, Appellants inAlexander A. ARTWAY v. The ATTORNEY GENERAL OF the STATE OF NEW JERSEY; Chief of Police of Woodbridge Township, New Jersey; The Superintendent of New Jersey State Police Chief of Police of Woodbridge Township, New Jersey Appellant inAlexander A. ARTWAY v. The ATTORNEY GENERAL OF the STATE OF NEW JERSEY; Chief of Police of Woodbridge Township, New Jersey; The Superintendent of New Jersey State Police Alexander A. Artway, Appellant in |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Page 1235
v.
The ATTORNEY GENERAL OF the STATE OF NEW JERSEY; Chief of
Police of Woodbridge Township, New Jersey; The
Superintendent of the New Jersey State Police
Attorney General of New Jersey and Superintendent of the New
Jersey State Police, Appellants in No. 95-5157.
Alexander A. ARTWAY
v.
The ATTORNEY GENERAL OF the STATE OF NEW JERSEY; Chief of
Police of Woodbridge Township, New Jersey; The
Superintendent of New Jersey State Police
Chief of Police of Woodbridge Township, New Jersey Appellant
in No. 95-5194.
Alexander A. ARTWAY
v.
The ATTORNEY GENERAL OF the STATE OF NEW JERSEY; Chief of
Police of Woodbridge Township, New Jersey; The
Superintendent of New Jersey State Police
Alexander A. Artway, Appellant in No. 95-5195.
Third Circuit.
Decided April 12, 1996.
Page 1240
On Appeal From the United States District Court for the District of New Jersey, Nicholas H. Politan, J.; Civ. No. 94-cv-06287.
Deborah T. Poritz (Argued) Attorney General of New Jersey, Joseph L. Yannotti, Assistant Attorney General, Rhonda S. Berliner-Gold, Larry Etzweiler, B. Stephan Finkel, Deputy Attorneys General, Trenton, NJ, for Attorney General of New Jersey Appellant in No. 95-5157.
Neal H. Flaster (Argued), Richard L. Rudin, Weiner Lesniak and Jeremy G. Weiss, Parsippany, NJ, for Chief of Police of Woodbridge Township, New Jersey, Appellant in No. 95-5194.
Page 1241
Faith Hochberg (Argued), United States Attorney, Stuart Rabner and George S. Leone, Assistant United States Attorneys, Newark, NJ, Frank W. Hunger, Assistant Attorney General, Leonard Schaitman and Wendy M. Keats, Attorneys, Appellate Staff, United States Department of Justice, Civil Division, Washington, DC, for United States of America, Amicus-Appellant in No. 95-5157.
Geoffrey S. Berman, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, for Maureen Kanka, Richard Kanka, Dick Zimmer, Randall Cunningham, Nathan Deal, Jennifer Dunn, Tillie Fowler, Thomas Manton, Susan Molinari, Jim Saxton, Christopher Smith, Amicus-Appellants in No. 95-5157.
John J. Gibbons (Argued), Lawrence S. Lustberg, Jonathan Romberg, Christopher Walsh, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for Alexander A. Artway, Appellant in No. 95-5195.
Ronald K. Chen (Argued), Rutgers Constitutional Litigation Clinic, Rutgers University School of Law, Newark, NJ, for American Civil Liberties Union of New Jersey, Amicus-Appellant in No. 95-5195.
Glenn R. Paulsen, Capehart & Scatchard, P.A., Trenton, NJ, for New Jersey Senate, Amicus-Appellant in No. 95-5157.
Dennis C. Vacco, Attorney General of the State of New York, Victoria A. Graffeo, Solicitor General, Peter H. Schiff, Deputy Solicitor General, Andrea Oser, Assistant Attorney General, New York State Department of Law, Albany, NY, for State of New York, Amicus-Appellant in No. 95-5157.
Present: BECKER, ROTH, Circuit Judges, and SHADUR, * District Judge.
Page 1242
OPINION OF THE COURT
BECKER, Circuit Judge.
Alexander Artway thought that he had paid his debt to society by serving seventeen years in jail for a sex offense. After he was released, Artway settled in a community, secured employment, and married. Then, on October 31, 1994, New Jersey enacted Megan's Law. The Law requires certain sex offenders--including those like Artway found at sentencing to be "repetitive and compulsive"--to register with local law enforcement. It also requires community notification for registrants deemed a future risk. Artway sought an injunction against the enforcement of Megan's Law pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983, arguing that it punishes him, unconstitutionally, a second time. He also alleged that the Law provides insufficient procedural protections.
After summary proceedings in which no evidence was heard and virtually no factual record developed, the District Court for the District of New Jersey held that the notification aspects of Megan's Law violated the Ex Post Facto Clause of the United States Constitution and enjoined their enforcement against Artway. The court upheld the constitutionality of the Law's registration component. Both sides appealed.
These cross appeals present numerous questions (some of which are quite difficult): (1) Do the registration and notification provisions of Megan's Law constitute "punishment" within the meaning of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses of the U.S. Constitution? (2) Is Megan's Law unconstitutionally vague? (3) Does Megan's Law violate equal protection or due process? (4) Are any or all of Artway's claims unripe or moot? and (5) Was the district court's decision not to abstain under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), proper?
Timing is important not only to punishment, but also to proper judicial decisionmaking. Although we reject the State's contention that Artway's claims are moot because he has moved from New Jersey, ripeness problems preclude us from reaching the lion's share of Artway's claims. First, Artway's claims that Megan's Law's notification provisions violate the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses are unripe. Sex offenders are subject to notification only if the prosecutor finds a significant risk of recidivism----a determination that, with respect to Artway, has not yet been made and cannot be easily forecasted. It is far from clear, therefore, that Artway will ever be subject to notification. Moreover, we cannot make the novel, difficult, and fact-sensitive determination whether the notification provisions constitute "punishment"----the central question under all three clauses----without a record of how notification will be implemented and what concrete effects it will have on Artway (or those similarly situated). Although Artway's contention that notification constitutes punishment is prima facie quite persuasive, the claim will be fit for judicial review only when Artway (or some other sex offender) submits to the notification process and the impact is chronicled in the record. Similarly, since Artway has not yet been classified under Megan's Law, his claim that he is due more process for receiving notice of and challenging a hypothetical determination regarding his dangerousness is unripe.
With regard to Artway's claims that are currently justiciable, we hold first that Megan's Law's registration component does not violate the Ex Post Facto, Double Jeopardy, or Bill of Attainder Clauses as impermissible "punishment." As the following discussion will show, the law on "punishment" is complicated and in some disarray. We devote a significant portion of this opinion, therefore, to explaining and synthesizing caselaw on the "punishment" issue in order to formulate the correct legal test.
We also hold that (1) the "repetitive and compulsive" classification of Megan's Law does not offend equal protection; (2) the alleged unreliability and unfairness of Artway's
Page 1243
"repetitive and compulsive" determination does not violate due process; (3) Megan's Law is not unconstitutionally vague as applied to him; and (4) the district court did not err in refusing to abstain under Pullman.We therefore vacate the judgment of the district court insofar as it enjoins the enforcement of Tier 2 and Tier 3 notification under Megan's Law, and affirm that judgment insofar as it holds the registration provisions (including Tier 1 notification) of the Law constitutional.
I. BACKGROUND FACTS
In 1971, a New Jersey jury convicted Artway of sodomy. The statutory elements of Artway's crime did not require force, but the judge found that he had used violence and, as a result, sentenced him to an indefinite term in prison. See Artway v. Pallone, 672 F.2d 1168, 1170-71 & n. 3 (3d Cir.1982). 1 In addition, based in part on a prior statutory rape conviction, the judge made a finding for sentencing purposes that Artway's conduct was "characterized by a pattern of repetitive, compulsive behavior." See id. After serving seventeen years of the sentence, Artway was released in 1992 (he had been a fugitive from 1971 to 1975).
In 1994, the New Jersey legislature enacted Megan's Law----formally the New Jersey's Sexual Offender Registration Act, Pub.L.1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11)----in response to public outcry following the brutal rape and murder of a seven-year-old girl, Megan Kanka. Megan, her parents, and the community did not know that the murderer, who lived across the street from the Kankas, was a twice-convicted sex offender. The legislation was rushed to the Assembly floor as an emergency measure, skipping the committee process, and was debated only on the floor; no member voted against it.
Megan's Law enacts a registration requirement and three tiers of notification. The registration provision requires all persons who complete a sentence for certain designated crimes involving sexual assault after Megan's Law was enacted to register with local law enforcement. N.J.S.A. 2C:7-2b(1). Those committing these offenses and completing all incarceration, probation, and parole before the Law's enactment must register only if, at the time of sentencing, their conduct was found to be "characterized by a pattern of repetitive and compulsive behavior." Id.
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.
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