In re MF

• Citation: 776 A.2d 780,169 N.J. 45
• Parties: In the Matter of Registrant M.F.
• Decision Date: 17 July 2001
• Court: United States State Supreme Court (New Jersey)

776 A.2d 780

169 N.J. 45

In the Matter of Registrant M.F.

Supreme Court of New Jersey.

Argued May 1, 2001.

Decided July 17, 2001.

Jessica S. Oppenheim, Deputy Attorney General and Barry Stephen Finkel, Assistant Attorney General, argued the cause for appellant, State of New Jersey (John J. Farmer, Jr., Attorney General, attorney; Ms. Oppenheim, Mr. Finkel and Dominick DiRocco, Deputy Attorney General, on the briefs).

Michael Z. Buncher, Deputy Public Defender, argued the cause for respondent, M.F. (Peter A. Garcia, Acting Public Defender, attorney; Mr. Buncher and Edward L. Barocas, Assistant Deputy Public Defender, on the brief).

Jessica A. Roth argued the cause for amicus curiae, American Civil Liberties Union of New Jersey (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Ms. Roth, John J. Gibbons and Lawrence S. Lustberg, on the brief).

The opinion of the Court was delivered by LaVECCHIA, J.

Registrant, M.F., is a forty-two year old man with three sexual offenses cognizable under the Registration and Community Notification Laws ("RCNL"), N.J.S.A. 2C:7-1 to -11, more commonly known as Megan's Law. The Appellate Division affirmed the trial court's classification of M.F. as a moderate risk to recidivate, designating him a Tier Two sex offender, but deleted all community notification from the scope of notification that normally attends a Tier Two sex-offender designation. The Appellate Division held that for Tier Two notification to take place, the State must show by clear and convincing proof that children attending the schools and day-care centers in the pertinent geographic region are "reasonably certain" to encounter registrant.

We granted certification, 165 N.J. 676, 762 A.2d 657 (2000), and now reverse. The Appellate Division imposed too heavy a burden on the State in reviewing registrant's scope of notification. Once M.F.'s classification as a Tier Two offender was correctly established, the RCNL and the Attorney General's implementing guidelines presumptively required notification to schools and organizations in actual charge or care of women or children within the pertinent geographic area. Although specific limiting circumstances in individual cases may be put forward to counter that presumptive requirement, the State is not required affirmatively to establish, absent proof of those limiting circumstances, that a Tier Two registrant is reasonably certain to be encountered at the community organizations to which notice would be given. We remand this case to the Law Division for a rehearing applying the standard described in this opinion.

I.

M.F.'s criminal history reveals three progressively serious sexual offenses. In 1979, he was arrested for criminal sexual contact, N.J.S.A. 2C:14-3b, occurring in a Union County department store. The presentence report described the charge as "open lewdness" and included touching women. The charge ultimately was dismissed as part of a plea agreement in which he pleaded guilty to possession of a controlled dangerous substance.

In 1985, M.F. again was charged with criminal sexual contact pursuant to N.J.S.A. 2C:14-3b. In that incident, police were summoned to investigate a suspicious person in a vehicle parked in the lot of a Clifton department store. An undercover officer approached the vehicle and observed M.F. sitting behind the steering wheel with his pants unfastened and his private parts exposed. The officer stated that M.F. was masturbating while looking through the front window of the department store. According to the officer, M.F. saw him approaching, but continued to masturbate. M.F. was convicted and sentenced to one year of probation.

M.F.'s most recent sexual-offense conviction involved second-degree sexual assault, N.J.S.A. 2C:14-2b, and that offense rendered him subject to the RCNL. In 1997, while in the rear portion of a Pathmark store in Elizabeth, M.F. exposed his private parts and proceeded to masturbate in the presence of a seven-year-old girl. M.F. fled the store before the visibly upset child could inform her mother. The child later identified M.F. on a video taken by the store's security camera. M.F. was convicted and sentenced to five years of probation, and required to obtain alcohol and drug counseling, and to pay various fines. He also was informed of his obligation to register pursuant to the RCNL.

By letter dated February 25, 2000, the Union County Prosecutor's Office informed M.F. that he posed a "moderate risk" of re-and that he was classified as a Tier Two sex offender under the RCNL. The letter explained that, barring an appeal by M.F., the Union County Prosecutor's Office would reveal M.F.'s identity and sexual-offender status to appropriate personnel at "all community organizations that own or operate an establishment where children gather under their care (such as girl/boy scouts or little league) or women are cared for (such as battered women shelters)," located in the area surrounding M.F.'s residence in Roselle. M.F. was provided with a map showing that four schools, two playing fields, a church, and a nursery were located within the designated notification area. The oldest of M.F.'s three children attends a high school in the designated area.

M.F. sought judicial review of his classification. At his hearing, he argued that the prosecutor erred in scoring his risk of re-offense under the Attorney General's Registrant Risk Assessment Scale ("RRAS"). Although the court agreed in part, and reduced M.F.'s scaled score by two points, M.F.'s revised aggregate score still placed him well within the moderate-risk range. The trial court affirmed M.F.'s Tier Two classification and the prosecutor's "scope and manner of notification." Only the scope of notification was appealed.

At oral argument on appeal, the Appellate Division panel inquired:

[W]e just wonder what's accomplished by notifying the schools and community organizations of his presence in the area. He's shown no propensity to—to enter schools or even to enter school playgrounds, and if he repeats his—his previous misbehavior, having given notices to schools and community organization [sic], would have really served no useful purpose, except to put limits on—on his way of life.

The State asserted that the proposed scope of notification was reasonable because M.F.'s three sexual offenses established that he had a habit of leaving the confines of his residence to seek his victims, and that his victims included a child. Noting that M.F.'s offenses occurred in a department store, grocery store, and shopping center parking lot, not in a school, the court set forth its interpretation of the State's burden on the issue of scope of notification: "The question is, has the State shown, by clear and convincing evidence, that this man is likely to encounter anybody in a school?" Unconvinced that the State had met that burden, the court issued an order affirming M.F.'s Tier Two classification, but "delet[ed] therefrom all provisions for community notification." The order further stated that there was "no clear and convincing evidence that the children attending the schools and agencies designated in the order are reasonably certain to encounter registrant or that registrant visits [those] locations on a regular basis."

When we granted the State's petition for certification on the issue of the standard that the State must meet, we also requested that the parties address any potential impact that the recently enacted constitutional amendment concerning sex-offender notification, N.J. Const. art. IV, § 7, ¶ 12, may have on this appeal. The American Civil Liberties Union of New Jersey was granted amicus curiae status to address that issue. Upon review of the papers submitted, and the argument before the Court, we are convinced that the new Amendment has no applicability to this appeal. Accordingly, we shall review the question of the proper scope of notification for M.F. under the existing RCNL and current Attorney General Guidelines for Law Enforcement for the Implementation of Sex Offender Registration and Community Notification Laws (March 2000) ("Guidelines").

II.

A.

In 1994, the Legislature passed the RCNL in response to a series of predatory sexual offense incidents in New Jersey that touched a wellspring of concern for our young and vulnerable. N.J.S.A. 2C:7-1 to -11. The Legislature declared:

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.

[N.J.S.A. 2C:7-1.]

The RCNL consists of two components. It requires certain sex offenders, depending on the type and time of offense, to register with local law enforcement agencies. N.J.S.A. 2C:7-2 to -4. The second component, which is the focus of this appeal, requires notification to the community concerning registrants assessed to be at moderate or high risk to re-offend. N.J.S.A. 2C:7-5 to -11. The Legislature delegated to the Attorney General the authority to "promulgate guidelines and procedures for the notification required pursuant to the provisions of this act." N.J.S.A. 2C:7-8a. The Legislature directed that "[t]he guidelines shall identify factors relevant to the risk of re-offense and shall provide for three levels of notification depending upon the degree of the risk of re-offense." Ibid.; see also N.J.S.A. 2C:7-8b (listing nonexhaustive factors relevant to the risk of re-offense); In re Registrant J.M., 167 N.J. 490, 772 A.2d 349 (2001) (...