E.B. v. Verniero, No. 96-5132

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSTAPLETON
PartiesE.B., (A Fictitious Name) v. Peter VERNIERO * , Attorney General of the State of New Jersey; Charles R. Buckley, Acting Bergen County Prosecutor; James Mosley, Chief of Police of the City of Englewood, New Jersey. Peter Verniero*, Attorney General of the State of New Jersey, Appellant inW.P., et al., Individually and as Representatives of a Class pursuant to Fed. R. Civ. P. 23 (a) and 23 (b)(2), v. Peter VERNIERO ** , Attorney General of New Jersey; Jeffrey S. Blitz, Atlantic County Prosecutor; Charles R. Buckley, Acting Bergen County Prosecutor; Stephen G. Raymond, Burlington County Prosecutor; Joseph F. Audino, Acting Camden County Prosecutor; Stephen D. Moore, Cape May County Prosecutor; Neil S. Cooper, Acting Cumberland County Prosecutor; Clifford J. Minor, Essex County Prosecutor; Harris Y. Cotton, Gloucester County Prosecutor; Carmen Messano, Hudson County Prosecutor; Sharon B. Ransavage, Hunterdon County Prosecutor; Maryann K. Bielamowicz, Mercer County Prosecutor; Robert W. Gluck, Middlesex County Prosecutor; John Kaye, Monmouth County Prosecutor; W. Michael Murphy, Jr., Morris County Prosecutor; Daniel J. Carluccio, Ocean County Prosecutor; Ronald S. Fava, Passaic County Prosecutor; Ronald A. Epstein, Salem County Prosecutor; Melaine B. Campbell, Acting Somerset County Prosecutor; Dennis O'Leary, Sussex County Prosecutor; Edward Neafsey, Acting Union County Prosecutor; John J. O'Reilly, Warren County Prosecutor. W.P., et al., Individually and as Representatives of a Class pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2) Appellants in
Decision Date04 September 1997
Docket NumberNos. 96-5132,No. 96-5416,96-5416,No. 96-5132

Page 1077

119 F.3d 1077
E.B., (A Fictitious Name)
v.
Peter VERNIERO *, Attorney General of the
State of New Jersey; Charles R. Buckley, Acting
Bergen County Prosecutor; James Mosley,
Chief of Police of the City of
Englewood, New Jersey.
Peter Verniero*,
Attorney General of the State of New Jersey,
Appellant in No. 96-5132.
W.P., et al., Individually and as Representatives of a Class
pursuant to Fed. R. Civ. P. 23 (a) and 23 (b)(2),
v.
Peter VERNIERO **, Attorney General of New
Jersey; Jeffrey S. Blitz, Atlantic County Prosecutor;
Charles R. Buckley, Acting Bergen County Prosecutor; Stephen
G. Raymond, Burlington County Prosecutor; Joseph F. Audino,
Acting Camden County Prosecutor; Stephen D. Moore, Cape May
County Prosecutor; Neil S. Cooper, Acting Cumberland County
Prosecutor; Clifford J. Minor, Essex County Prosecutor;
Harris Y. Cotton, Gloucester County Prosecutor; Carmen
Messano, Hudson County Prosecutor; Sharon B. Ransavage,
Hunterdon County Prosecutor; Maryann K. Bielamowicz, Mercer
County Prosecutor; Robert W. Gluck, Middlesex County
Prosecutor; John Kaye, Monmouth County Prosecutor; W.
Michael Murphy, Jr., Morris County Prosecutor; Daniel J.
Carluccio, Ocean County Prosecutor; Ronald S. Fava, Passaic
County Prosecutor; Ronald A. Epstein, Salem County
Prosecutor; Melaine B. Campbell, Acting Somerset County
Prosecutor; Dennis O'Leary, Sussex County Prosecutor; Edward
Neafsey, Acting Union County Prosecutor; John J. O'Reilly,
Warren County Prosecutor.
W.P., et al., Individually and as Representatives of a Class
pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2)
Appellants in No. 96-5416.
Nos. 96-5132, 96-5416.
United States Court of Appeals,
Third Circuit.
Argued Oct. 21, 1996.
Decided Aug. 20, 1997.
As Amended Sept. 4, 1997.

Page 1080

Joseph L. Yannotti (Argued), Rhonda S. Berliner-Gold, B. Stephen Finkel, Office of Attorney General of New Jersey, Trenton, NJ, Attorneys for Appellant Attorney General of New Jersey No. 96-5132.

Judith A. Eisenberg, Office of County Prosecutor, Bergen County, Hackensack, NJ, Attorney for Appellee Charles R. Buckley, Acting Bergen County Prosecutor No. 96-5132.

Gerald R. Salerno (Argued), Aronsohn & Weiner, Hackensack, NJ, Attorney for Appellee E.B. (A Fictitious Name) No. 96-5132.

John J. Gibbons, Lawrence S. Lustberg, James E. Ryan (Argued), Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, Michael Z. Buncher, Edward Barocas, Office of Public Defender Special Hearings Unit, Trenton, NJ, Attorneys for Appellants W.P., et al., Individually and as Representatives of a Class Pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2) No. 96-5416.

Jane D. Plaisted, Office of County Prosecutor, Essex County, Newark, NJ, Attorney for Appellees Blitz, Buckley, Raymond, Audino, Moore, Cooper, Minor, Cotton, Messano, Ransavage, Bielamowicz, Gluck, Kaye, Murphy, Carluccio, Fava, Epstein, Campbell, O'Leary, Neafsey, and O'Reilly No. 96-5416.

Thomas E. Bracken, Office of County Prosecutor, Sussex County, Newton, NJ, Attorney for Appellee Dennis O'Leary No. 96-5416.

Peter Verniero (Argued), Joseph L. Yannotti, B. Stephen Finkel, Jane Grall, Rhonda Berliner-Gold, Office of Attorney General of New Jersey, Trenton, NJ, Attorneys for Appellee Peter Verniero Attorney General of New Jersey No. 96-5416.

Ronald K. Chen (Argued), Rutgers Constitutional Litigation Clinic Newark, NJ, Attorney for Amicus Curiae ACLU-NJ No. 96-5416.

Faith S. Hochberg (Argued), George S. Leone, Office of United States Attorney, Newark, NJ, Leonard Schaitman, Wendy M. Keats, U.S. Department of Justice, Washington, DC, Attorneys for Amicus Curiae United States of America No. 96-5416.

Geoffrey S. Berman, Latham & Watkins,New York City, Attorney for Amici M. Kanka, R. Kanka, D. Zimmer, R. Cunningham, N. Deal, J. Dunn, T. Fowler, T. Manton, S. Molinari, J. Saxton and C. Smith No. 96-5416.

BEFORE: BECKER, STAPLETON and NYGAARD, Circuit Judges.

OPINION OF THE COURT

 TABLE OF CONTENTS
                 Page
                 I. INTRODUCTION ........................................................ 1081
                 II. THE MEGAN'S LAW SCHEME .............................................. 1081
                III. THE PRIOR PROCEEDINGS ............................................... 1087
                 IV. THE ROOKER"FELDMAN ISSUE ............................................ 1090
                 V. THE EX POST FACTO AND DOUBLE JEOPARDY ISSUES ........................ 1092
                 A. The Artway Standard ............................................ 1093
                 B. The Impact Of Ursery And Hendricks ............................. 1093
                 C. Legislative Purpose ............................................ 1096
                 D. Objective Purpose .............................................. 1097
                 E. Effects ........................................................ 1101
                 F. Satisfaction Of The Artway Test ................................ 1105
                 VI. THE PROCEDURAL DUE PROCESS ISSUES ................................... 1105
                 A. Deprivation Of A Liberty Interest .............................. 1105
                 B. Standards For Determining The Process Due....................... 1106
                 C. Allocation Of The Burden Of Persuasion ......................... 1107
                 D. Extent Of The State's Evidentiary Burden ....................... 1110
                VII. CONCLUSION .......................................................... 1111
                

Page 1081

STAPLETON, Circuit Judge:

I. INTRODUCTION

On July 29, 1994, Megan Kanka, a seven year old child, was abducted, raped, and murdered near her home. The man who confessed to Megan's murder lived in a house across the street from the Kanka family and had twice been convicted of sex offenses involving young girls. Megan, her parents, local police, and the members of the community were unaware of the accused murderer's history; nor did they know that he shared his house with two other men who had been convicted of sex offenses.

By October 31, 1994, New Jersey had enacted the Registration and Community Notification Laws, Pub.L.1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11) as part of a ten-bill package collectively referred to as "Megan's Law." This legislation required registration by those who had committed certain designated crimes involving sexual assault and provided for the dissemination of information about those required to register. Other states followed suit with their own versions of Megan's Law and Congress passed a statute requiring a state program of registration and notification as a condition of receiving certain federal funds. By May of 1996, forty-nine states had adopted sex offender registration laws and thirty-two states maintained some form of community notification program.

We have before us challenges to the constitutionality of the notification requirements of New Jersey's Megan's Law based on the Ex Post Facto, Double Jeopardy, and Due Process Clauses of the United States Constitution. The issues before us are difficult but relatively narrow. We are not called upon to decide whether Megan's Law can constitutionally be applied to one who has committed one of the designated sex crimes after its enactment. Nor, of course, is it our responsibility to determine whether the policy judgments reflected in Megan's Law are prudent ones.

We hold that (1) the notification requirements of Megan's Law do not constitute state inflicted "punishment" on Tier 2 and Tier 3 registrants for purposes of the Ex Post Facto and Double Jeopardy Clauses; (2) the Due Process Clause of the United States Constitution forecloses New Jersey from placing the burden of persuasion on the registrant in a proceeding challenging a Tier 2 or Tier 3 classification and notification plan; and (3) the Due Process Clause requires the state at such a proceeding to shoulder the burden of justifying the classification and notification plan by clear and convincing evidence.

II. THE MEGAN'S LAW SCHEME

A.

Public reaction to Megan's murder was intense, and New Jersey's governor and legislature responded quickly. By August 15, 1994, two weeks after the discovery of Megan's body, bills providing for registration and community notification had been introduced in the General Assembly. Two weeks later, the General Assembly declared the bills an "emergency," allowing them to bypass committee and be passed the same day.

In the Senate, no registration or notification bills had been introduced as of August 29, 1994. However, the Law and Public

Page 1082

Safety Committee held a hearing upon pending legislation that pre-dated Megan's Law and would have required victim notification on the release of offenders. In connection with its consideration of that legislation, the Committee received testimony and/or written reports from, inter alia, the American Civil Liberties Union, municipal officials, inmates, state and federal legislators, and the Attorney General on issues related to sex offender registration and community notification. Registration and community notification bills identical to their General Assembly counterparts were introduced in the Senate on September 12, 1994. After hearing testimony from the ACLU, the New Jersey Coalition of Crime Victims, and corrections officials on September 26, 1994, the Senate Law and Public Safety Committee revised the bills by: (1) supplementing the list of crimes which require registration, 1 (2) directing the Attorney General to consult with a twelve-member Advisory Council of experts to establish guidelines concerning the risk of reoffense, (3) identifying certain factors material to the determination of risk of reoffense, and (4) narrowing the scope of community notification. The Committee then favorably reported the amended versions to the Senate, see Senate Law & Pub. Safety Comm., Statement to Substitute for Senate Bill No. 14 & Assembly Bill No. 85 (N.J. Sept. 26, 1994), which approved the bills on October 3. The General Assembly followed suit by debating and approving the revised bill on October 20, 1994, and Governor Whitman signed it into law on October 31, 1994.

B.

Megan's Law establishes both a registration...

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270 practice notes
  • Rees v. Office of Children, Case No. 1:09–cv–283.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • September 30, 2010
    ...due process are somewhat broader and may be created either by state law or by the federal constitution itself. E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir.1997) (citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Nevertheless, “[t]he procedural component of th......
  • Balthazar v. Atlantic City Medical Center, Civ.A. No. 02-1136.
    • United States
    • U.S. District Court — District of New Jersey
    • August 15, 2003
    ...Rooker-Feldman Doctrine, a United States District Court may not review the judgment of a state court of any level. See E.B. v. Verniero, 119 F.3d 1077, 1090 (3d Cir.1997). This principle extends to constitutional claims which are "inextricably intertwined" with a state court's decision. See......
  • People v. Hofsheier, No. S124636.
    • United States
    • United States State Supreme Court (California)
    • March 6, 2006
    ...and may have difficulty finding a place to live. (See Doe v. Miller (8th Cir.2005) 405 F.3d 700; E.B. v. Verniero (3d Cir.1997) 119 F.3d 1077, 1089-1090; State v. Myers (1996) 260 Kan. 669, 923 P.2d 1024, 1041; Center for Sex Offender Management, Community Notification and Education (2001),......
  • State v. Kelly, No. SC
    • United States
    • Supreme Court of Connecticut
    • May 8, 2001
    ...v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126 (1998); E.B. v. Verniero, 119 F.3d 1077, 1096-97 (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); Artway v. Attorney......
  • Request a trial to view additional results
267 cases
  • Rees v. Office of Children, Case No. 1:09–cv–283.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • September 30, 2010
    ...due process are somewhat broader and may be created either by state law or by the federal constitution itself. E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir.1997) (citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Nevertheless, “[t]he procedural component of th......
  • Balthazar v. Atlantic City Medical Center, Civ.A. No. 02-1136.
    • United States
    • U.S. District Court — District of New Jersey
    • August 15, 2003
    ...Rooker-Feldman Doctrine, a United States District Court may not review the judgment of a state court of any level. See E.B. v. Verniero, 119 F.3d 1077, 1090 (3d Cir.1997). This principle extends to constitutional claims which are "inextricably intertwined" with a state court's decision. See......
  • People v. Hofsheier, No. S124636.
    • United States
    • United States State Supreme Court (California)
    • March 6, 2006
    ...and may have difficulty finding a place to live. (See Doe v. Miller (8th Cir.2005) 405 F.3d 700; E.B. v. Verniero (3d Cir.1997) 119 F.3d 1077, 1089-1090; State v. Myers (1996) 260 Kan. 669, 923 P.2d 1024, 1041; Center for Sex Offender Management, Community Notification and Education (2001),......
  • State v. Kelly, No. SC
    • United States
    • Supreme Court of Connecticut
    • May 8, 2001
    ...v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126 (1998); E.B. v. Verniero, 119 F.3d 1077, 1096-97 (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); Artway v. Attorney......
  • Request a trial to view additional results

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