Doe v. Poritz

• Decision Date: 22 February 1995
• Citation: 283 N.J.Super. 372,661 A.2d 1335
• Parties: John DOE, (a fictitious name) individually and on behalf of all others similarly situated, Plaintiff, v. Deborah PORITZ, Attorney General of the State of New Jersey, Defendant.
• Court: New Jersey Superior Court

Page 372

283 N.J.Super. 372

661 A.2d 1335

John DOE, (a fictitious name) individually and on behalf of all others similarly situated, Plaintiff, v. Deborah PORITZ, Attorney General of the State of New Jersey Defendant.

Superior Court of New Jersey, Law Division Burlington County.

Decided Feb. 22, 1995.

Furlong and Krasny, West Trenton, for plaintiff John Doe (John S. Furlong, appearing).

Deborah T. Poritz, Atty. Gen., for defendant (Deborah T. Poritz appearing and Madeleine W. Mansier, and Jane Grall, Trenton, on the Brief).

Capehart and Scatchard, Trenton, for the New Jersey Senate amicus curiae (Glenn R. Paulsen, appearing).

WELLS, A.J.S.C.

The plaintiff, John Doe, was indicted and charged with molesting two teenage boys constituting sexual assault in June of 1985. He entered into a plea agreement with the State of New Jersey for a term of imprisonment not to exceed 15 years. In or about September 1985, the plaintiff was examined by a psychologist at the Adult Diagnostic and Treatment Center (hereinafter, ADTC) in Avenel, New Jersey pursuant to R. 3:21-3. The Center determined his conduct was characterized by a pattern of repetitive and compulsive behavior. According to the plaintiff, he did not contest that determination since he knew he was to serve a term of incarceration anyway and believed he could benefit from a program of specialized treatment at the ADTC.

In February 1986, John Doe was sentenced to a ten year term of imprisonment at the ADTC in Avenel with a three year period of parole ineligibility. Plaintiff claims he fully participated in all aspects of the treatment program offered to him at ADTC. He eventually received the recommendation of his primary therapist and the concurring opinion of two staff panels. The plaintiff was recommended to the Special Classification and Review Board for a determination of parole eligibility. The Board interviewed the plaintiff in or about October 1991, determined he was "capable of making an acceptable social adjustment," and recommended to the New Jersey State Parole Board that he be released with supervised parole. The plaintiff was subsequently released on parole in January 1992.

Plaintiff claims he complied with all provisions of his parole release, including participation in aftercare psychological treatment. His sentence and parole requirements terminated in June of 1992. He now rents an apartment and works in the community. Apparently his employer and fellow employees are aware of his past.

On October 31, 1994, Governor Christine Todd Whitman signed into law the package of bills known as Megan's Law. Chapter 133, codified as N.J.S.A. 2C:7-1 et seq.

The New Jersey State Legislature enacted Megan's Law because it determined 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." N.J.S.A. 2C:7-1.a. It further determined that such a system would "provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons." N.J.S.A. 2C:7-1.b.

Megan's Law requires persons convicted of certain sex offenses to register with the police. Registration involves notifying the police in the municipality wherein the registrant intends to reside of the following: name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, fingerprints, address of legal residence, address of any current temporary residence, date and place of employment, date and place of each conviction, adjudication or acquittal by reason of insanity, indictment number, a brief description of the crime or crimes for which registration is required, and any other information that the Attorney General deems necessary to assess risk of future commission of a crime, including criminal and correction records, nonprivileged personnel, treatment, and abuse registry records, and evidentiary genetic markers when available. N.J.S.A. 2C:7-4.b. (1), (2) & (3).

Megan's Law has and may in the future affect John Doe in the following ways: First, since a court has found his conduct was characterized as repetitive and compulsive behavior, he must register with the police in the municipality of his residency, regardless of the date of the commission of the offense or the date of conviction. N.J.S.A. 2C:7-2.b. (1). Under sections of N.J.S.A. 2C:7-2.c. (4) and N.J.S.A. 2C:7-2.e, he must register within 120 days of the effective date of this Act and must verify his address with the appropriate law enforcement agency every 90 days. This 90-day provision is apparently experimental in nature since the legislature has ordered that the "Attorney General shall review, evaluate and, if warranted, modify pursuant to the 'Administrative Procedures Act,' " the 90-day verification provision one year after the effective date of the Act. He is to be subjected to these registration requirements for at least 15 years. N.J.S.A. 2C:7-2.f permits the plaintiff to apply to the Superior Court 15 years after conviction or release--whichever is later--to terminate the obligation to register upon proof that he has not committed an offense within that time period and is not likely to pose a threat to the safety of others. Finally, and most significantly, John Doe may be subject to N.J.S.A. 2C:7-5. That section authorizes law enforcement agencies to release relevant and necessary information in accordance with N.J.S.A. 2C:7-6 et seq., to the public when such release is "necessary for public protection."

N.J.S.A. 2C:7-6 et seq. outlines the manner in which community notification is to be implemented. N.J.S.A. 2C:7-8 directs the Attorney General, with the aid of a statutorily defined advisory council, to promulgate guidelines and procedures for the notification required under Megan's Law. The Attorney General, after consultation with the advisory council, has developed and issued the required guidelines which are now a part of the record. The validity of those guidelines has been questioned and that issue will be discussed towards the end of this opinion. Nonetheless, the Attorney General's guidelines identify factors relevant to the risk of re-offense and flesh out the three levels of notification provided for in the statute. The levels, or "tiers", require different levels of notification which correspond to the risk of re-offense. Under Tier I the risk of re-offense is determined to be low, and so only law enforcement agencies likely to encounter the registrant are notified. At Tier II the risk of re-offense is determined to be moderate and so organizations in the community, including schools, religious and youth groups are notified. At Tier III the risk of re-offense is determined to be high and so members of the public likely to encounter the person registered are notified. Of course each level expands upon the notification given under the previous tier.

John Doe, the plaintiff herein, filed a Complaint and an Order to Show Cause on January 3, 1995. His Order to Show Cause demands that defendant Deborah Poritz, the Attorney General for the State of New Jersey, show cause why a preliminary injunction should not be granted, restraining and enjoining defendant or her agents and all law enforcement agencies under her authority from enforcing the registration and notification requirements of Megan's Law. N.J.S.A. 2C:7-1 et seq. Briefs were filed and oral argument was heard on that Order to Show Cause on January 20, 1995. Because of the complexity of the issues raised and the procedurally constrained nature of an application for a preliminary injunction, the court, sua sponte, ordered the parties to file cross motions for summary judgment. Both parties have filed the requested motions and both have submitted supplemental briefs. All sides agree that no material factual issues exist and that the case involves pure questions of law. Oral argument was scheduled for today, February 22, 1995.

The plaintiff's first amended complaint, filed on January 6, 1995, alleges that Megan's Law and the Attorney General's guidelines are unconstitutional as applied to plaintiff because they violate his rights under both the Federal and State Constitutions. Specifically, he alleges violations of the following constitutional protections: due process as provided by the Fifth and Fourteenth Amendments of the U.S. Constitution, as well as Art. 1, par. 1, of the State Constitution; violation of the ex post facto clause of the U.S. Constitution; violation of the Eighth Amendment of the U.S. Constitution and Art. 1, par. 12, of the State Constitution, both of which prohibit cruel and unusual punishment; violation of his right to privacy as created by N.J.S.A. 30:4-24.3; denial of his right to equal protection under the law as provided by the Equal Protection Clause of the U.S. Constitution and Art. 1, par. 1 of the State Constitution; and, violation of the protections against double jeopardy as provided by the Double Jeopardy Clause of the U.S. Constitution and Art. 1, par. 11 of the State Constitution. In addition to those constitutional challenges the plaintiff alleges that the State has breached the terms of his plea agreement by making additional, unnegotiated demands of him. Finally, the plaintiff alleges that the registration and notification requirements of Megan's Law as against plaintiff would constitute a legal disqualification or disability because of his conviction, in violation of N.J.S.A. 2C:51-1, thereby depriving him of civil and statutory rights, under color of state law, in violation of 42 U.S.C. § 1983 as applied to the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution.

The Ex Post Facto Clause

The...