Artway v. Attorney General of NJ

• Decision Date: 01 March 1995
• Docket Number: Civ. A. No. 94-6287 (NHP).
• Citation: 876 F. Supp. 666
• Parties: Alexander A. ARTWAY v. The ATTORNEY GENERAL OF NEW JERSEY, The Superintendent of the New Jersey State Police, and The Chief of Police of Woodbridge Township, New Jersey.
• Court: U.S. District Court — District of New Jersey

876 F. Supp. 666

Alexander A. ARTWAY v. The ATTORNEY GENERAL OF NEW JERSEY, The Superintendent of the New Jersey State Police, and The Chief of Police of Woodbridge Township, New Jersey.

Civ. A. No. 94-6287 (NHP).

United States District Court, D. New Jersey.

February 28, 1995.

Order March 1, 1995.

Alexander A. Artway, pro se.

John J. Gibbons, Lawrence S. Lustberg, Jonathan Romberg, Christopher Walsh, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, court appointed atty. for plaintiff.

Glenn R. Paulsen, Capehart & Scatchard, P.A., Trenton, NJ, for New Jersey Senate.

Madeleine W. Mansier, Deputy Atty. Gen., Jane Grall, Asst. Atty. Gen., Larry R. Etzweiler, Deputy Atty. Gen., Deborah T. Poritz, Atty. Gen. of New Jersey, Trenton, NJ, for defendants Atty. Gen. of New Jersey, Superintendent of New Jersey State Police.

Frank W. Hunger, Asst. Atty. Gen., Arthur R. Goldberg, Henry A. Azar, Jr., U.S. Dept. of Justice, Washington, DC, George S. Leone, Frederick R. Kessler, Asst. U.S. Attys., Faith S. Hochberg, U.S. Atty., Newark, NJ, Geoffrey S. Berman, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, for amici curiae.

Neal H. Flaster, Weiner Lesniak, Parsippany, NJ, for defendant Chief of Police of Tp. of Woodbridge.

POLITAN, District Judge.

This matter comes before the Court on plaintiff, Alexander A. Artway's motion for emergent, temporary and injunctive relief from enforcement of New Jersey's Sexual Offender Registration Act, commonly known as "Megan's Law". Defendants, the Attorney General of New Jersey and the Superintendent of the New Jersey State Police, in lieu of an answer and in opposition to plaintiff's motion, have moved for dismissal of plaintiff's Complaint on the ground that it contains no cognizable cause of action upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

Plaintiff contends that Megan's Law, which mandates that he register with local and state authorities as a sexual offender and provides for the potential public dissemination of certain information regarding his identity, appearance, criminal record, and place of residence, is unconstitutional. Plaintiff argues that Megan's Law deprives him of his right to due process, equal protection and privacy, that it violates the constitutional prohibition against cruel and unusual punishment as well as the prohibition against ex post facto laws, and that it constitutes a bill of attainder. Defendants refute that challenge, and argue that the law is constitutional in both form and effect.

FACTUAL CONTEXT

In 1971, a jury found plaintiff guilty of sodomy (N.J.S.A. 2A:143-1). In 1975 plaintiff was sentenced to imprisonment for a maximum term of twenty (20) years.¹ At his sentencing, the trial judge found that plaintiff's conduct was "characterized by a pattern repetitive, compulsive behavior." Plaintiff did not challenge that determination. He was imprisoned at the New Jersey State Prison Farm at Rahway, the Diagnostic Unit, which is now known as the Adult Diagnostic and Treatment Center ("ADTC").

Despite his case being reviewed several times by the Special Classification Review Board, plaintiff was never referred to the State Parole Board for parole consideration. In 1978, plaintiff was transferred to the Rahway State Prison because he was found to lack proper involvement and participation in the ADTC treatment program. On March 13, 1992, plaintiff was resentenced under the new code of criminal justice² and committed to the custody of the Commissioner of Corrections for a period of twenty (20) years with credit for time served. His resentencing was based on a redesignation of his original offense as sexual assault. Upon completion of his sentence, plaintiff was released from prison in 1992.

Megan's Law, enacted on October 31, 1994, was a legislative response to public outcry in New Jersey following the brutal murder of a young girl. Megan's Law was named after a seven-year-old child, Megan Kanka, who was raped and murdered, allegedly by a twice-convicted sex offender who lived across the street from Megan's home, unbeknownst to Megan or her parents. The public outcry which resulted from that child's plight led to the enactment of New Jersey's Sexual Offender Registration Act.

Under the terms of New Jersey's Sexual Offender Registration Act, a person who has completed a sentence for conviction on certain designated offenses is required to register if, at the time of sentencing, his³ conduct was found to be "characterized by a pattern of repetitive and compulsive behavior". P.L. 1994 C. 133, § 2.b.(1). The individual must register with the chief law enforcement officer of the municipality in which he resides within one hundred and twenty (120) days of the effective date of the Act, or by February 28, 1995. P.L.1994 C. 133, § 2.c.(1). The registrant must give his 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 residence, and date and place of employment. Id. at § 4.b.(1). He must verify his address every ninety (90) days, notify the municipal law enforcement agency when he moves, and re-register with the law enforcement agency of any new municipality to which he moves. Id. at § 2.d.-e., § 4.c.

After registration, the registering agency forwards the registrant's information, as well as any additional information it may have — such as fingerprints, genetic markers, a brief description of the criminal act of which the registrant was convicted, and any other information "necessary to assess the risk of reoffense" — to the County Prosecutor of the county in which the registrant was prosecuted. Id. at § 4.c. The Prosecutor forwards the information to the Division of State Police for inclusion in a central registry and notifies the County Prosecutor of the county in which the registrant plans to reside. Id. at § 4.c.-d.

The information compiled as a result of registration is available for use by law enforcement agencies of New Jersey, the United States, and of other states. The registration information itself is not open to public inspection. However, law enforcement agencies are authorized to release "relevant and necessary information concerning registrants when ... necessary for public protection." Id. at § 4-6.

The Prosecutor of the county in which the registrant is expected to reside must consider the registration information and, in consultation with the Prosecutor of the county in which the registrant was convicted, make a determination as to whether the registrant poses a low, moderate, or high risk of reoffense. P.L.1994, c. 128, § 3.d.(1). In making that determination, the Prosecutor is required to consider a non-exclusive list of statutory factors, as well as factors included in the Attorney General's Guidelines promulgated pursuant to the Act. Id. at § 3.a.-b.

The three classifications concerning the likelihood of re-offense, labeled Tier 1, Tier 2, and Tier 3, respectively, each carry with them different notification provisions. When the risk of re-offense is low (Tier 1), the Prosecutor must notify law enforcement agencies likely to encounter the registrant. Id. at § 3.c.(1). When the risk is moderate (Tier 2), the Prosecutor, working with local law enforcement agencies, must notify schools, licensed day care centers and summer camps, as well as certain other designated agencies and community organizations involved in the care or supervision of children or the support of battered women and rape victims. Id. at § 3.c.(2). When the risk of re-offense is determined to be high (Tier 3), law enforcement agencies are required to notify members of the public likely to encounter the registrant. Id. at § 3.c.(3).

Under Tier 2 and Tier 3, the form of notification includes the registrant's name, a recent photograph, physical description, the offense, address, place of employment or schooling, as well as a description and the license plate number of the registrant's vehicle. See Attorney General's Guidelines for Law Enforcement for Notification to Local Officials and/or the Community of the Entry of a Sex Offender into the Community. Those agencies and persons notified under Tier 2 are informed that the information is intended to assist them in the protection of children, battered women or rape victims under their care, and that it is not to be shared with the general public. Every notification is accompanied by a warning as to the consequences of acts of vandalism, threats, and assaults against a registrant or any associates of the registrant, and a warning as to the criminal sanctions which would follow from such conduct. Id. at 13-14.

The defendants contend that Megan's Law constitutes little more than an extension of pre-existing New Jersey law allowing the public access to information concerning the criminal justice system in the State. Plaintiff, on the other hand, contends that the purpose and/or effect of Megan's Law is punitive, and constitutes a badge of ignominy.

Defendants argue that Megan's Law and its notification provisions are intended to be regulatory, and result from a legislative intent to assist law enforcement in identifying and alerting the public to the likely danger of re-offense by convicted sexual offenders. The Law was apparently enacted to address "the danger of recidivism caused by sex offenders, offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness." P.L.1994, c. 133, § 1.a. As such, because Megan's Law is designed to protect the public and provide a public awareness whereby members of the community might be more vigilant in protecting themselves and their children, defendants contend that the Law is legitimate and that any encroachment on registrants' constitutional interests is purely incidental and nugatory.

Well-intentioned legislators, responding to public outcry, have sought to...