E.A., Matter of
| Decision Date | 01 December 1995 |
| Citation | 667 A.2d 1077,285 N.J.Super. 554 |
| Parties | In the Matter of REGISTRANT E.A.: Application for Judicial Review of Notification and Tier Designation. 1 |
| Court | New Jersey Superior Court — Appellate Division |
Before SHEBELL, LONG and MUIR, JJ.
The opinion of the court was delivered by
MUIR, JR., J.A.D.
This appeal stems from the implementation of the Registration and Community Notification Laws (RCNL), N.J.S.A. 2C:7-1 to -11, and the judicial review process required by Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), for the evaluation of a prosecutor's RCNL risk of reoffense assessment and extent of notification determinations. E.A., a convicted sex offender subject to RCNL provisions, appeals that part of a trial court order that approved the prosecutor's scope of public notification. The challenges raised are (1) to the notification of proposed community organizations because, to date, the organizations have not registered as required by the Attorney General's Guidelines, preventing E.A. from evaluating whether the organizations are entitled to notification; and (2) to the geographical scope of notification on grounds it is arbitrarily conceived, void of expert input, and therefore contrary to the Attorney General's Guidelines.
We affirm the trial court order to the extent it approves (1) notification to all private residences within one mile of E.A.'s residence and within one-half mile of E.A.'s work place; and (2) notification to all public and private schools as well as operating licensed day care centers within two miles of E.A.'s residence or work place. As to the remaining scope of notification determination concerning notice to yet unregistered community organizations, we remand to allow the prosecutor to present proper proof consonant with this opinion and to allow for resolution by the trial court based on the proof submitted.
E.A.'s criminal conduct makes him subject to the RCNL. As an adult, he has been convicted of sex offenses against 12-, 13-, and 14-year-old boys. He recently was released from the Adult Diagnostic and Treatment Center, see N.J.S.A. 2C:47-3, after serving the maximum time on sexual assault convictions. The prosecutor, pursuant to the RCNL, notified E.A. he had been classified as a high risk of reoffense (Tier Three) registrant. At the same time in a Scope of Notification Form, the prosecutor advised E.A. of the intent to notify public and private schools, licensed day care centers, registered community organizations, and members of the public the prosecutor deemed would be likely to encounter E.A. See N.J.S.A. 2C:7-8c(3).
E.A. sought judicial review. See Doe v. Poritz, supra, 142 N.J. at 30-31, 662 A.2d 367. While that review related to both the Tier Three classification and the scope of notification, we are concerned with only the latter because E.A. does not challenge the classification.
The prosecutor established the scope of notification, in a geographic sense, in terms of distances keyed to density of population. Using the applicable distances, the prosecutor then identified areas covering private residences, schools, and registered community organizations likely to encounter E.A. The prosecutor set up general standards that called for notice to be given to all private residences within (1) a 1,000 foot radius of the registrant's residence or work place when the latter is located in an urban, high-population density area; (2) a one-half mile radius when registrant's residence or work place is located in a suburban, moderate-population density area; and (3) a one mile radius when registrant's residence or work place is located in a rural, low-population density area. The law enforcement official used similar standards for determining the public and private schools, licensed day care centers, and "registered community organizations" to be notified. For rural and suburban areas, the prosecutor set a two mile radius and, for urban areas, a one-half mile radius. Applying these standards to E.A.'s case, the prosecutor determined notification would be given (1) to private residences within a one-half mile radius of E.A.'s work place and within a one mile radius of his place of residence, and (2) to private or public schools, licensed day care centers, and registered community organizations within a two mile radius of E.A.'s residence or work place.
An assistant prosecutor testified to the development of the distance criteria. After relating the grounds for his expertise to the court, he explained the criteria were based on his office's knowledge of the population densities of the county. The assistant prosecutor conceded he neither collected statistical data nor made any comprehensive studies to determine the reasonableness of the distance criteria. Relying on his expertise and knowledge, he identified the demographic or population density criteria as consistent with the RCNL "likely to encounter" standard and the relevant Attorney General's Guidelines.
The scope of notification notice did not specifically identify the community organizations to be notified. Indeed, the assistant prosecutor could name no such organizations because none had registered pursuant to the Attorney General's Guidelines. The assistant prosecutor took the position that, when organizations registered pursuant to the Attorney General's Guidelines, an organization would be given notification if it fell within the set geographical parameters and Guidelines criteria, and that E.A was not entitled to a hearing on whether an organization qualified for notification.
The trial court approved the prosecutor's scope of notification determinations. It did so not on the reasonableness of the particular distances per se but in the context of reasonableness of those criteria as they bore on the "likely to encounter" standard of N.J.S.A. 2C:7-8c(3). This appeal followed.
Doe v. Poritz requires judicial review of prosecutorial implementation of the RCNL. Doe v. Poritz, supra, 142 N.J. at 28-40, 662 A.2d 367. The Doe Court, to satisfy procedural due process and the fairness doctrine of this state, extended judicial review to the RCNL procedure to "assure that the risk of reoffense and the extent of notification are fairly evaluated before Tier Two [moderate risk of reoffense] or Tier Three [high risk of reoffense] notification is implemented." Id. at 30, 662 A.2d 367 (emphasis added).
In doing so, the Court prescribed an evidence production format. At the outset, the State has the burden of going forward with evidence "that prima facie justifies the proposed level and manner of notification." Id. at 32, 662 A.2d 367. That done, both the burden of proof and of persuasion shift to and stay with the registrant to establish by a preponderance of the evidence that the prosecutor's determination does not conform to the RCNL and the Attorney General's Guidelines adopted pursuant to the RCNL. Ibid.
The judicial review, then, entails a two-stage process wherein the trial court first resolves the issue of a prima facie compliance with the RCNL and the Attorney General's Guidelines. Then, in the second stage, the court must decide whether, by a preponderance of the evidence, the registrant contradicts the conclusion that there is compliance with the RCNL and the Guidelines. See ibid.
The judicial review process designed by Doe v. Poritz is in some respects unique to our jurisprudence. It is not governed by the rules of evidence. Doe v. Poritz, supra, 142 N.J. at 31, 662 A.2d 367. Against the backdrop of a presumption for prompt determination, it is set in a summary format. Ibid. It affords the trial court substantial authority beyond the judicial norm. Id. at 31, 35, 662 A.2d 367. It vests the trial court with the authority to determine the extent of witness production as well as to determine whether cross-examination shall be required or allowed. Id. at 31, 662 A.2d 367. At the same time, it vests the court with "substantial power, beyond that permitted or used in ordinary litigation, to allow, reject, control, and limit expert testimony." Id. at 35, 662 A.2d 367. Furthermore, the trial court may in appropriate circumstances resolve issues based exclusively on documentary presentations, including expert reports. Id. at 31, 662 A.2d 367. See In re A.B., 285 N.J.Super. 399, 404, 667 A.2d 200, 203 (App.Div.1995); In re C.A., 285 N.J.Super. 343, 348, 666 A.2d 1375, 1378 (App.Div.1995).
Albeit unique in many respects, the judicial review established has parallels in our jurisprudential process. By its analogy to other instances where courts review decisions of state and local agencies that are vested with legislatively delegated authority, the judicial review required by Doe v. Poritz implicates use of the criteria employed to conduct judicial review in those other instances. See, e.g., Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93, 312 A.2d 497 (1973) (); Kramer v. Board of Adjustment, 45 N.J. 268, 296, 212 A.2d 153 (1965) (). Where appropriate in a Doe v. Poritz judicial review, the trial court may employ the criteria of those comparable instances of judicial review.
In beginning the two-stage judicial review process with the requirement the prosecutor present a prima facie case, Doe v Poritz followed the comparable evidential format prescribed for plenary discriminatory employment civil litigation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677-78 (1973); Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550, 569 A.2d 793 (1990). Consistent with that comparable format, the trial court must resolve what proofs establish the prima facie requirement,...
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