Alan A. v. Verniero

Citation970 F.Supp. 1153
Decision Date27 June 1997
Docket NumberCivil Action No. 97-1288 (AJL).
PartiesALAN A., et al., Plaintiffs, v. Peter VERNIERO, et al., Defendants.
CourtU.S. District Court — District of New Jersey

Susan Reisner, Michael Buncher, Edward Barocas, Public Defender, Trenton, NJ, for Plaintiffs.

Peter Verniero, Joseph Yannotti, Rhonda S. Berliner-Gold, Attorney General of New Jersey, Trenton, NJ, for Peter Verniero.

Ronald S. Fava, Lisa Squitieri, Passaic County Prosecutor, Paterson, NJ, for Ronald S. Fava.

William H. Schmidt, Judith A. Eisenberg, Bergen County Prosecutor, Hackensack, NJ, for William H. Schmidt.

Faith S. Hochberg, George S. Leone, U.S. Attorney, Camden, NJ, for U.S. as Amicus Curiae.

Frank W. Hunger, Vincent M. Garvey, Henry A. Azar, Jr., Washington, D.C., for Department of Justice as Amicus Curiae.


LECHNER, District Judge.

This is an action for emergent relief brought by plaintiffs Alan A. ("Alan A."), Barry B. ("Barry B."), Carl C. ("Carl C."), David D. ("David D."), Jeff J. ("Jeff J."), Kenneth K. ("Kenneth K.") (all fictitious names, collectively, the "Plaintiffs").1 Plaintiffs are subject to the requirements of Megan's Law, New Jersey's sex offender registration and notification act, N.J.S.A. 2C:7-1 et seq. ("Megan's Law" or the "Act").2 The Defendants in this matter are Peter Verniero, Attorney General of New Jersey, William H. Schmidt ("Schmidt"), Bergen County Prosecutor and Ronald S. Fava ("Fava"), Passaic County Prosecutor (at times, collectively referred to as "Prosecutor").3 Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and 42 U.S.C. § 1983. First Amended Complaint, ¶ 2. Declaratory and injunctive relief is requested pursuant to 28 U.S.C. §§ 2201 and 2202. Id., ¶ 3.

On 14 May 1997, Plaintiffs filed the First Amended Complaint. In the First Amended Complaint, Plaintiffs seek: 1) "[i]ssuance of a temporary restraining order/preliminary injunction prohibiting the [D]efendants and anyone acting in concert with them from proceeding with conferences or hearings in [s]tate [c]ourt for the purpose of determining tier classification and manner of community notification in this matter during the pendency of this temporary restraining order/preliminary injunction [(`Request to Enjoin State Proceedings')]," 2) "[i]ssuance of an immediate temporary restraining order/preliminary injunction prohibiting the [D]efendants and anyone acting in concert with them from issuing or disseminating in any manner Tier II or Tier III notification regarding members of the Plaintiffs under N.J.S.A. 2C:7-1 et seq., during the pendency of this action or, in the alternative, until fifteen days following the Third Circuits decision in W.P. v. Verniero et al., (Dkt No. 96-5416) [(`Request to Enjoin Notification')]", 3) "[e]ntry of a declaratory judgment which defines the rights of the Plaintiffs and all members of the Plaintiffs' proposed class and which invalidates Megan's Law as being unconstitutional [(`Request for Declaratory Judgment')]". See First Amended Complaint at 17-18. Plaintiffs further request relief from the obligation to post a bond ("Request For Relief from Posting Bond"), an order placing this matter under seal,4 an order permitting Plaintiffs to proceed In Forma Pauperis ("Request to Proceed In Forma Pauperis"), and other relief as Plaintiffs may be entitled.5 Id.

Megan's Law is constitutional. The Plaintiffs have demonstrated no possibility of success on the merits of their claims. Accordingly, for the reasons set forth below, the Request to Enjoin State Proceedings, the Request to Enjoin Notification and the Request for a Declaratory Judgment are denied. The Request for Relief from Posting Bond and the Request to Proceed In Forma Pauperis were not briefed and are not addressed in this opinion.

A. Parties
1. Plaintiffs6

Plaintiffs contend the Act, specifically the community notification provisions, violates their constitutional right to procedural due process, privacy, to be free from double jeopardy and to be free from cruel and unusual punishment. Moving Brief at 1.

Each of the remaining Plaintiffs is a resident of the State of New Jersey and was convicted of a sexual offense, as defined in Megan's Law, and has been classified by a county Prosecutor as either a Tier II or Tier III offender. First Amended Complaint, ¶¶ 5-9, 16. Each Plaintiff is subject to the notification and tier classification provision of the Act. The date each Plaintiff's offense was committed was on or after the effective date of the Act. Id.

Alan A. is eighteen years old and lives with his father. Alan A. pleaded guilty to Aggravated Sexual Assault for having sex with a twelve year old minor when Alan A. was sixteen years old. Id., ¶ 5. Alan A. was found delinquent as a juvenile and sentenced to two years at a juvenile medium security facility. Id. Alan A. was paroled in 1996. Id.

Barry B. is twenty-three years old and lives with his mother. Id., ¶ 6. Barry B. pleaded guilty to sexual assault for committing a sexual offense against a minor. Barry B. was sentenced to four years probation. Id.

Carl C. is nineteen years old. Carl C. pleaded guilty to aggravated sexual contact. Carl C. was sentenced to three years probation. Id., ¶ 7.

David D. is twenty three years old and lives with his mother and step-father. David D. pleaded guilty to endangering the welfare of a child by having committed a sexual act against a minor. David D. was sentenced to four years confinement and was paroled in 1996. Id., ¶ 8.

Jeff J. is sixty-three years old. Jeff J. pleaded guilty to endangering the welfare of a minor. Jeff J. was sentenced to five years probation and directed to have no contact with the victim. Id., ¶ 9.

Kenneth K. is sixty-three years old. Kenneth K. pleaded guilty to endangering the welfare of a child, a minor household member. Kenneth K. was sentenced to five years probation, no victim contact and counseling. Id., ¶ 10.

2. Defendants

As stated, the Defendants are Peter Verniero, the Attorney General of the State of New Jersey, who is responsible for implementing and prosecuting Megan's Law on a statewide basis. Id., ¶ 11. The remaining Defendants are Schmidt, the Bergen County Prosecutor and Fava, the Passaic County Prosecutor. Id., ¶¶ 12-13.

B. Megan's Law

Megan's Law was enacted on 31 October 1994.7 The Act requires certain sex offenders to register with local law enforcement, see N.J.S.A. 2C:7-2, and authorizes law enforcement agencies "to release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection. ..." See N.J.S.A. 2C:7-5. The purpose of the registration and subsequent notification is proffered in the first section of the Act:

a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for the public safety.

b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons.

See N.J.S.A. 2C:7-1.

a. Registration Requirement

The Act "requires registration [(the `Registration Provision')] of sex offenders convicted after its effective date and all prior convicted offenders whose conduct was found to be repetitive or compulsive." Doe v. Poritz, 142 N.J. 1, 20, 662 A.2d 367 (1995); see N.J.S.A. 2C:7-2. The sex offenses that trigger the Registration Provision include the crimes of aggravated sexual assault, sexual assault, aggravated criminal sexual contact and kidnapping pursuant to paragraph (2), subsection c. of N.J.S.A. 2C:13-1 or an attempt to commit any of these crimes. See N.J.S.A. 2C:7-2(a). "[F]or those convicted after [the] effective date, added to the foregoing are various laws, concerning endangering the welfare of a child, luring or enticing, criminal sexual conduct if the victim is a minor, and kidnapping, criminal restraint, or false imprisonment if the victim is a minor and the offender is not the parent," or an attempt to commit any of these offenses.8 Doe, 142 N.J. at 20, 662 A.2d 367.

The Registration Provision requires the offender to provide to the local law enforcement information such as the offender's name, age, race, gender, date of birth, height, weight, hair and eye color, address of legal and temporary residence, date and place of employment, date and place of conviction, adjudication or acquittal by reason of insanity, indictment number, fingerprints, a brief description of the crime or crimes for which registration is required, as well as other information deemed necessary to assess the risk of the future commission of a crime. N.J.S.A. 2C:7-4(b); Complaint, ¶ 15.

An offender may make an application "to terminate the obligation upon proof that [he or she] has not committed an offense within [fifteen] years following conviction or release from a correctional facility for any term of imprisonment imposed ... and is not likely to pose a threat to the safety of others." See N.J.S.A. 2C:7-2(f). The failure of an offender to comply with the Registration Provision is a fourth degree crime. N.J.S.A. 2C:7-2(a).

The Plaintiffs have registered with local law enforcement and provided the information required pursuant to the Registration Provision. First Amended Complaint, ¶ 15.

b. Notification Provision

Pursuant to the notification provision in the Act ("Notification Provision"), local law enforcement agencies are required to give appropriate notification of the offender's presence in...

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4 cases
  • In re Alva
    • United States
    • California Supreme Court
    • June 28, 2004
    ...994 F.Supp. 849, 854-855 [Mich. statute; neither registration nor public access provisions are punishment]; Alan A. v. Verniero (D.N.J.1997) 970 F.Supp. 1153, 1193-1194 [N.J. statute; community notification provisions are not punishment, and are not cruel]; Doe v. Kelley (W.D.Mich.1997) 961......
  • State v. Scott
    • United States
    • Kansas Supreme Court
    • May 29, 1998
    ...notification laws constitute cruel or unusual punishment, although several courts have considered the issue. See, e.g., Alan A. v. Verniero, 970 F.Supp. 1153 (D.N.J.1997); Doe v. Kelley, 961 F.Supp. 1105 (W.D.Mich.1997); John Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 Statements from various c......
  • Doe v. Attorney General
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 17, 1997
    ...F.3d 1077, 1105 (3d Cir.1997) (notification provision not punishment for ex post facto or double jeopardy purposes); Alan A. v. Verniero, 970 F.Supp. 1153, 1176 (D.N.J.1997) (notification not punishment); Doe v. Kelley, 961 F.Supp. 1105, 1111-1112 (W.D.Mich.1997) (sex offender registration ......
  • Paul P. v. Verniero
    • United States
    • U.S. District Court — District of New Jersey
    • October 29, 1997 opportunity for housing, are not caused by the notification provision, but by his or her status as a felon. See Alan A. v. Verniero, 970 F.Supp. 1153, 1182-83 (D.N.J.1997). Third, although plaintiffs do have a protectable privacy right in family relationships, we find that these privacy ......

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