A.A. ex rel. M.M. v. New Jersey

• Citation: 341 F.3d 206
• Decision Date: 18 August 2003
• Docket Number: No. 01-4471.,No. 01-4363.,01-4363.,01-4471.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: A. A.; A. B.; A. C., (a minor by M.M. his natural parent); A. D.; A. E.; A. F.; A. G., (all fictitious initials), individually and as representatives of a class, pursuant to Fed. R. Civ. 23(a) and 23(b)(2) v. The State of NEW JERSEY;<SMALL><SUP>*</SUP></SMALL> James McGreevey, in his official capacity as Governor of the State of New Jersey; Attorney General of the State of New Jersey, <SMALL><SUP>*</SUP></SMALL>Peter C. Harvey, in his official capacity; <SMALL><SUP>*</SUP></SMALL>Joseph R. Fuentes, in his official capacity as Superintendent of New Jersey State Police A. A., A. B., A. C., A. D., A. E., A. F., A. G., Appellants A. A.; A. B.; A. C., (a minor by M.M. his natural parent); A. D.; A. E.; A. F.; A. G., (all fictitious initials), individually and as representatives of a class, pursuant to Fed. R. Civ. 23(a) and 23(b)(2) v. The State of New Jersey; <SMALL><SUP>*</SUP></SMALL> James McGreevey, in his official capacity as Governor of the State of New Jersey; Attorney General of the State of New Jersey, <SMALL><SUP>*</SUP></SMALL>Peter C. Harvey, in his official capacity; <SMALL><SUP>*</SUP></SMALL>Joseph R. Fuentes, in his official capacity as Superintendent of New Jersey State Police The State of New Jersey, <SMALL><SUP>*</SUP></SMALL>James E. McGreevey, <SMALL><SUP>*</SUP></SMALL>Peter C. Harvey and <SMALL><SUP>*</SUP></SMALL>Joseph R. Fuentes, Appellants.

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341 F.3d 206

A. A.; A. B.; A. C., (a minor by M.M. his natural parent); A. D.; A. E.; A. F.; A. G., (all fictitious initials), individually and as representatives of a class, pursuant to Fed. R. Civ. 23(a) and 23(b)(2) v. The State of NEW JERSEY;^* James McGreevey, in his official capacity as Governor of the State of New Jersey; Attorney General of the State of New Jersey, ^*Peter C. Harvey, in his official capacity; ^*Joseph R. Fuentes, in his official capacity as Superintendent of New Jersey State Police A. A., A. B., A. C., A. D., A. E., A. F., A. G., Appellants A. A.; A. B.; A. C., (a minor by M.M. his natural parent); A. D.; A. E.; A. F.; A. G., (all fictitious initials), individually and as representatives of a class, pursuant to Fed. R. Civ. 23(a) and 23(b)(2) v. The State of New Jersey; ^* James McGreevey, in his official capacity as Governor of the State of New Jersey; Attorney General of the State of New Jersey, ^*Peter C. Harvey, in his official capacity; ^*Joseph R. Fuentes, in his official capacity as Superintendent of New Jersey State Police The State of New Jersey, ^*James E. McGreevey, ^*Peter C. Harvey and ^*Joseph R. Fuentes, Appellants.

No. 01-4363.

No. 01-4471.

United States Court of Appeals, Third Circuit.

Argued June 25, 2003.

Opinion Filed August 18, 2003.

Peter A. Garcia, Acting Public Defender New Jersey, Michael Z. Buncher, Brian Neff, Office of Public Defender, Trenton, NJ, Edward L. Barocas (Argued), American Civil Liberties Union of New Jersey Foundation, Newark, NJ, Lawrence S. Lustberg, Jessica A. Roth, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, New York, NY, for Appellants in No. 01-4363 and Appellees in No. 01-4471.

Peter C. Harvey, Attorney General of New Jersey (acting), David Samson, Attorney General of New Jersey, Nancy Kaplen, Assistant Attorney General of Counsel, B. Stephan Finkel (Argued), Assistant Attorney General, Rhonda S. Berliner-Gold, Deputy Attorney General, Victoria L. Kuhn, Deputy Attorney General on the Brief, Office of Attorney General of New Jersey, Department of Law & Public Safety, Trenton, NJ, for Appellants in No. 01-4471 and Appellees in No. 01-4363.

Before SLOVITER, RENDELL, Circuit Judges, and McCLURE,^* District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. INTRODUCTION

This appeal presents us with the latest in a long string of challenges to New Jersey's Megan's Law. This time, we consider privacy claims as to the newest addition to the existing statutory regime — the creation of a public internet registry posting personal information about convicted sex offenders.

In 1994, seven year old Megan Kanka was abducted, raped, and murdered near her New Jersey home by a neighbor who had previously been convicted of sex offenses against young girls. Thereafter, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, § 170101, 108 Stat.2038, as amended, 42 U.S.C. § 14071, which conditions certain federal funds for law enforcement on the States' adoption of a Megan's Law, so named after Megan Kanka. By 1996, every State, the District of Columbia, and the Federal Government had passed a Megan's Law. While these laws vary from State to State, they generally require convicted sex offenders to register with law enforcement officials, who then notify community members of the registrants' whereabouts. New Jersey's Megan's Law has faced legal challenges every step of the way.

In Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3d Cir.1996), we upheld the registration provisions of New Jersey's Megan's Law in the face of ex post facto, double jeopardy, bill of attainder, due process, equal protection, and vagueness challenges. A year later in E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, sub nom. W.P. v. Verniero, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998), we rejected claims that the law's notification requirements violated the Ex Post Facto and Double Jeopardy Clauses of the Constitution. Thereafter, we rejected claims that the notification requirement violated registrants' privacy rights in Paul P. v. Verniero ("Paul P. I."), 170 F.3d 396 (3d Cir.1999), and Paul P. v. Farmer ("Paul P. II."), 227 F.3d 98 (3d Cir.2000).

The story does not end there. In 1995, Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), the New Jersey Supreme Court upheld the constitutionality of the original Megan's Law, conditioned on the implementation of certain safeguards. Specifically, the Court construed the notification provisions to require a "likely to encounter" standard based on geography and further required the State to provide offenders with notice of their proposed scope of notification and an opportunity for judicial review before the notification was undertaken. Id. at 29-30, 662 A.2d 367. In light of the Doe Court's qualifications, New Jersey's electorate approved by public referendum in November 2000 an amendment to the New Jersey Constitution authorizing the legislature to enact new statutory provisions permitting the disclosure of sex offender registry information to the general public. N.J. Const. art. IV, § 7, ¶ 12. Thereafter, the New Jersey legislature passed a statute authorizing the creation of an internet registry which supplements the existing registration and notification system and contains information about certain high and moderate risk sex offenders. See N.J. Stat. Ann. §§ 2C:7-12 et seq. (2003) ("Registry").

II. PROCEDURAL HISTORY

Appellants ("Registrants") are convicted sex offenders required to provide personal information to be placed on the Registry. They filed suit in the United District Court for the District of New Jersey challenging the constitutional amendment authorizing the creation of the Registry and the Registry itself. Specifically, the Registrants claimed that the Registry violated their rights under the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution and their constitutional right to privacy in their home addresses and in the compilation of information posted on the Registry. Thereafter, they filed a motion for a preliminary injunction to prevent the State from implementing the Registry.

The District Court granted in part and denied in part the Registrants' motion for a preliminary injunction. A.A. v. New Jersey, 176 F.Supp.2d 274 (D.N.J.2001). Specifically, it denied their ex post facto, double jeopardy, and privacy claims as to the compilation of information. Id. at 297, 307. It concluded, however, that the Registrants had established a reasonable likelihood of success on the merits of their privacy claim as to their home addresses. Id. at 307. The Registrants have appealed the District Court's denial of their ex post facto, double jeopardy, and privacy claims as to the compilation of information. The State cross-appealed from the District Court's injunction as to the Registrants' home addresses. We scheduled oral argument to hear the appeal and cross-appeal. After the Supreme Court granted certiorari in a Megan's Law case raising identical ex post facto claims — vis-a-vis Alaska's internet registry — we postponed argument. The Supreme Court has since spoken.

In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Court held that Alaska's internet registry is not punitive and thus its retroactive application does not violate the Ex Post Facto Clause.¹ The Registrants concede that the Supreme Court's decision in Smith effectively disposes of their ex post facto and double jeopardy claims, thereby leaving us to consider only claims as to their privacy interests. Although the Supreme Court in Smith was not presented with and did not discuss privacy issues as to Alaska's Registry, much of its discussion is nonetheless instructive and will be explored below.

III. DISCUSSION

A. Jurisdiction and Standard of Review

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1). The District Court's determination as to the preliminary injunction "will be reversed only if the court abused its discretion, committed an obvious error in applying the law, or made a serious mistake in considering the proof." Loretangeli v. Critelli, 853 F.2d 186, 193 (3d Cir.1988). Nonetheless, we exercise plenary review over the District Court's conclusions of law and its application of the law to the facts. Southco, Inc. v. Kanebridge Corp., 258 F.3d 148, 150-51 (3d Cir.2001).

B. Privacy Claims as to Registrants' Home Addresses

In its cross-appeal, New Jersey contends that the District Court erred in enjoining the State from posting on the internet information identifying the house or apartment number, street, zip code, and municipality of Registrants. Currently, the only geographic information available on the Registry is the Registrant's county of residence. The State contends that its compelling interest in making this information available through the internet to enhance public safety outweighs the Registrants' limited privacy interest in avoiding disclosure of their home addresses. The Registrants, on the other hand, urge us to uphold the District Court's partial preliminary injunction, arguing that "well-established precedent" has settled the issue as to their constitutionally-protected privacy interest in the confidentiality of their home addresses. For this proposition, they cite to Paul P. I. and Paul P. II.

In Paul P. I., plaintiffs were a class of registrants who challenged New Jersey's Megan's Law, claiming that the statutory requirement under the notification system requiring them to provide extensive information to law enforcement, including their home addresses, violated their constitutionally-protected right to privacy. 170 F.3d at 398. Under the challenged notification system, the information provided by the registrant was placed into a central registry available to law enforcement personnel but not to the public. Id. at 399. Thereafter, law...