A.A. v. New Jersey, 01-4804(JEI).
| Decision Date | 06 December 2001 |
| Docket Number | No. 01-4804(JEI).,01-4804(JEI). |
| Citation | 176 F.Supp.2d 274 |
| Parties | A.A., A.B., A.C. (a minor, by M.M., his natural parent), A.D., A.E., A.F., and A.G. (all fictitious initials), individually and as representatives of a class, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2), Plaintiffs, v. State of NEW JERSEY; Donald T. DiFrancesco, in his official capacity as Acting Governor, State of New Jersey; John J. Farmer, Jr., in his official capacity as Attorney General, State of New Jersey; and Carson J. Dunbar, in his official capacity as Superintendent of the New Jersey State Police, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Peter A. Garcia, Acting Public Defender for New Jersey by Michael Z. Buncher, Deputy Public Defender, Trenton, NJ, Counsel for Plaintiffs.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., by Jessica A. Roth, Newark, NJ, Cooperating Counsel for the ACLU of New Jersey Foundation.
John J. Farmer, Jr., Attorney General of New Jersey by B. Stephan Finkel, Assistant Attorney General, Trenton, NJ, Attorney for Defendants.
The litigation before the Court is the most recent constitutional challenge to New Jersey's "Megan's Law." Plaintiffs, all of whom have been convicted of sex offenses in New Jersey and are subject to registration and community notification pursuant to N.J.S.A. 2C:7-1 et seq. (), instituted this suit on October 15, 2001 challenging the constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution and recent amendments to Megan's Law authorizing the development and maintenance of "a system for making certain information in the central registry ... publicly available by means of electronic Internet technology." P.L.2001, Ch. 167 (codified at N.J.S.A. §§ 2C:7-12 to - 19) (hereinafter referred to as the "Internet Registry Act"). Soon after filing an initial complaint, Plaintiffs submitted an application for preliminary injunctive relief seeking to prevent the implementation of New Jersey's Internet sex offender registry, which is statutorily authorized to become effective on January 1, 2002. P.L. 2001, c. 167 § 10.1
For purposes of this motion, Plaintiffs' claims can be divided into two categories. First, Plaintiffs allege that the Internet Registry Act, by allowing unlimited public access to certain information collected pursuant to Megan's Law's registration provisions, violates their constitutional right to privacy in: (1) their home addresses; and (2) the totality of the information assembled and posted in the Internet sex offender registry. Second, Plaintiffs contend that the retroactive application of the Internet Registry Act to those members of the plaintiff class whose underlying sex offense was committed prior to the law's enactment violates the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution.2
For the reasons stated below, the Court will grant, in part, and deny, in part, Plaintiffs' motion for preliminary injunctive relief.
Background:
Since its enactment, New Jersey's Megan's Law has been the subject of series of constitutional challenges. See Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995); Artway v. Attorney General, 81 F.3d 1235 (3d Cir.1996); E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997); Paul P. v. Verniero, 170 F.3d 396 (3d Cir.1999); Paul P. v. Farmer, 227 F.3d 98 (3d Cir.2000). Under the system of registration and notification which eventually emerged from this morass of constitutional litigation, all persons convicted of certain designated sex offenses, including those convicted prior to the law's enactment, are required to register with local law enforcement following the completion of their sentence. N.J.S.A. 2C:7-2.3 Every registrant is required to furnish the local police with a variety of information, including their name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, exact address of legal residence, and date and place of employment. N.J.S.A. 2C:7-4(b). All information collected pursuant to the Act's mandatory registration provisions is assembled and stored in a central registry maintained by the Superintendent of the New Jersey State Police. N.J.S.A. 2C:7-4(d).
Following registration, each sex offender is classified according to his risk of re-offense and the need for community notification. The prosecutor of the county where the offender resides and the prosecutor of the county in which he was convicted jointly determine, based on a matrix of criteria identified in the Megan's Law guidelines, whether the registrant poses a low (tier 1), moderate, (tier 2), or high (tier three) risk of re-offense. N.J.S.A. 2C:7-8(d)(1).4 In compliance with the decisions of the New Jersey Supreme Court and the Third Circuit Court of Appeals, all registrants designated as either high or moderate risk offenders are provided notice and an opportunity to challenge their tier classification in a judicial proceeding in which the state has the burden of persuasion to establish the registrant's tier classification and notification by clear and convincing evidence. See Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995); E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997).
Pursuant to the law's existing system of community notification, registration information is not made available to the general public, but is distributed to classes of persons with a statutorily defined need for the information depending on the classification tier assigned to each registrant. As currently defined by the statute, need for the information is based on the reasonable likelihood that an individual or group will encounter the registrant. Entitlement to notification under the "likely to encounter" standard is generally based on geographical proximity to an offender's place of residence and/or places he is likely to frequent. Tier-one notification requires county prosecutors to notify only law enforcement agencies "likely to encounter" the registrant. N.J.S.A. 2C:7-8(c)(1). Tier-two notification requires county prosecutors to notify both law enforcement agencies and registered schools, day care centers, summer camps, and other children's or women's organizations providing care for potential victims in areas where the registrant is likely to be encountered. N.J.S.A. 2C:7-8(c)(2). Finally, for those registered sex offenders posing the highest risk of re-offense, a tier three classification requires county prosecutors to notify, in addition to those organizations notified under the lower-tier levels, all members of the public likely to encounter the registrant. N.J.S.A. 2C:7-8(c)(3). Tier-three notification generally extends to members of the registrant's surrounding neighborhood and places he is likely to frequent.
While breadth of notification is generally left to the discretion of the two county prosecutors (subject, of course, to judicial review), the distribution of notification must comply with the notification guidelines promulgated by the Attorney General and ultimately approved by the Third Circuit. See Paul P. v. Farmer, 227 F.3d 98 (2000).5 These guidelines set forth a uniform method of disseminating notification flyers which is designed to reasonably limit disclosure to those statutorily entitled to receive notification (i.e. those "likely to encounter" the registrant). See Paul P. v. Farmer, 92 F.Supp.2d 410 (D.N.J.2000). Two forms of notification are distributed: an unredacted form and a redacted form. Id. The unredacted notices contain the exact home address of the Megan's Law registrant along with the registrant's name, photograph, description, license plate number, vehicle description, and sex offender status. The redacted version of the notice form contains all of this information, but replaces the registrant's exact street address with more general information such as the block number or intersection nearest the offender's residence. Only those individuals who sign a receipt form may receive the unredacted notice.6 Members of the community who are within the scope of the notification, but who decline to sign the receipt form, may only receive the redacted form of the notice. All those receiving notice are bound by the applicable rules of "Rules of Conduct." In general, the "Rules of Conduct" instruct recipients not to share the information contained in the notification flyer with anyone outside the household or not in their care and to otherwise refrain from publicizing the contents of the flyer to the general public. Id. at 411-412. The rules also admonish recipients that actions taken against the registrant, such as harassing, threatening, or physically harming the registrant, his family, or his property, are illegal and subject to prosecution. Finally, in order to further minimize the unauthorized disclosure of registry information to those persons without a statutorily-defined need for the information, the guidelines also set forth procedures governing the methods employed in the delivery of Megan's law notices. Id. at 412.
In the November 7, 2000 general election, New Jersey's electorate approved by public referendum 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. The amendment, paragraph 12 of Article IV, § 7 of the New Jersey Constitution of 1947, reads as follows:
Notwithstanding any other provision of this Constitution and irrespective of any right or interest in maintaining confidentiality, it shall be lawful for the Legislature to authorize by Law the disclosure to the general public of information pertaining to the identity, specific and general whereabouts, physical characteristics and criminal history of persons found to have committed a sex...
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