Paul v. Farmer, Civil Action No. 97-2919 (JEI) (D. N.J. 1/24/2000), Civil Action No. 97-2919 (JEI)

• Decision Date: 24 January 2000
• Docket Number: Civil Action No. 97-2919 (JEI)
• Parties: PAUL P. et al., Plaintiffs, v. JOHN J. FARMER, JR., Attorney General of New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

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PAUL P. et al., Plaintiffs, v. JOHN J. FARMER, JR., Attorney General of New Jersey, et al., Defendants.

Civil Action No. 97-2919 (JEI)

United States District Court, D. New Jersey.

January 24, 2000.

SUSAN L. REISNER, Public Defender for New Jersey, By: Michael Z. Buncher, Deputy Public Defender, Edward L. Barocas, Assistant Deputy Public Defender Trenton, NJ, Counsel for Plaintiffs.

JOHN J. FARMER, JR., Attorney General of New Jersey, By: Stephan Finkel, Senior Deputy Attorney General, Rhonda S. Berliner-Gold, Deputy Attorney General, Richard J. Hughes Justice Complex, Trenton, NJ, Counsel for Defendants.

OPINION

JOSEPH E. IRENAS, District Judge:

Presently before the Court is the summary judgment motion of plaintiff sex offenders in this class action challenge to New Jersey's Registration and Community Notification Act, N.J.S.A. 2C:7-1 et seq. ("Megan's Law"). Also before the Court is the cross-motion for summary judgment on behalf of defendants, John J. Farmer, Jr., Jeffrey S. Blitz, William Schmidt, Stephen G. Raymond, Lee A. Solomon, Stephen D. Moore, Arthur Marchand, Clifford J. Minor, Andrew Yurick, Carmen Messano, Stephen B. Rubin, Maryann K. Bielamowicz, Robert W. Gluck, John Kaye, John B. Dangler, Daniel J. Carluccio, Ronald S. Fava, Ronald A. Epstein, Meanie B. Campbell, Dennis O'Leary, Edward Neafsey, John J. O'Reilly, and the United States of America. For the reasons set forth below, plaintiffs' motion is granted and defendants' cross-motion is denied.

I.

This matter represents the latest skirmish in the battle over "Megan's Law" in New Jersey.¹ Plaintiffs are Tier 2 or 3 registrants under Megan's Law whose offenses were committed after the law's enactment. In their initial complaint, filed with this Court on June 16, 1997, plaintiffs challenged the constitutionality of the Law, alleging that it violated their rights to privacy, due process, and to be free from double jeopardy and cruel and unusual punishment.

Prior to the Court's decision on the merits, the Third Circuit found that the community notification provisions of Megan's Law do not constitute punishment for purposes of the Ex Post Facto and Double Jeopardy Clauses and held that the due process clause "would be violated by any Tier 2 or Tier 3 notification that occurred without a prior opportunity to challenge the registrant's classification and notification plan in a hearing at which the prosecutor has the burden of persuasion and must prove her case by clear and convincing evidence." E.B. v. Verniero, 119 F.3d 1077, 1111 (3d Cir. 1997), cert. denied sub nom W.P. v. Verniero, 118 S.Ct. 1039 (1998). In light of the Third Circuit's opinion in E.B., this Court granted defendants' motion for summary judgment as to plaintiffs' cruel and unusual punishment and double jeopardy claims, but denied summary judgment on the due process claim. The Court also granted summary judgment as to plaintiffs' privacy claim.

Plaintiffs appealed the Court's ruling on their privacy claim to the Third Circuit. During the pendency of this appeal, plaintiffs-appellants filed six motions to supplement the record and appellee, former Attorney General Verniero, filed three motions to supplement the record. The Third Circuit declined to consider the materials proffered by these motions and proceeded to affirm this Court's holding that Megan's Law did not violate plaintiffs' constitutional rights to privacy. Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999). However, the Circuit Court remanded the case back to this Court so that it could consider the material contained in the motions to supplement and "determine whether any action is appropriate" in light of Third Circuit precedent. Id. at 406. Specifically, the Third Circuit cited its previous holding in Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 118 (3d Cir. 1987), that "the fact that protected information must be disclosed to a party who has a particular need for it. . . does not strip the information of its protection against disclosure to those who have no similar need."

II.

"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

III.

At the outset, it is important to delineate those issues which are not presently before this Court. It is not currently disputed that plaintiffs have a constitutionally protected privacy interest at stake.² In Paul P., the Third Circuit held that plaintiffs had a constitutionally protected, "nontrivial" privacy interest in preventing the disclosure of their home addresses. 170 F.3d at 404. This holding was in congruence with the previous opinion of the New Jersey Supreme Court that "public disclosure of plaintiff's home address does implicate privacy interests." Doe v. Poritz, 142 N.J. 1, 84, 662 A.2d 367, 409 (1995).

The present challenge to Megan's Law is not a challenge to the amount or type of information disclosed under the Law or to the scope of notification per se. These issues have been dealt with at length by the New Jersey courts in Doe and in the case of In re Registrant R.F., 317 N.J. Super. 379, 722 A.2d 538 (App. Div. 1998), and the Attorney General has done an admirable job of applying the statute in a manner which conforms with the holdings in these cases. Plaintiffs here challenge not the substance or scope of notification, but the method of notification. In the present motion and accompanying exhibits, plaintiffs claim that the procedures currently used to distribute Megan's Law notices have failed to prevent the disclosure of confidential information to persons not entitled to that information under the Act.

Plaintiffs argue that, in practice, the current system has failed to prevent the widespread dispersal of confidential information to persons without a "particular need for it." Paul P., 170 F.3d at 406. They argue that the current system of applying and enforcing Megan's Law is flawed because: (1) the Law lacks penalties to deter the unauthorized disclosure of information³; (2) there is no uniform requirement that the registration process occur in a setting which protects the registrant's privacy⁴; (3) many counties have inconsistent or unclear rules regarding which school staff members are entitled to receive information concerning Tier 2 offenders⁵; (4) not all counties deliver Tier 3 notices by hand to an authorized adult⁶; and (5) home addresses are included in all Tier 2 notices and are disclosed to all notice recipients despite the fact that this information is not needed by all recipients.

In response to these arguments, defendants point to the procedures currently in place and argue that they are more than adequate to prevent the majority of unauthorized disclosures.

Defendants cite several portions of the Attorney General Guidelines which caution against improper disclosure of Megan's Law information.⁷ For example, the Guidelines provide that Tier 2 notices given to community organizations and schools "shall caution the recipients against unauthorized dissemination" and suggest that "[i]t should be emphasized that it is the responsibility of the Prosecutors and the Courts to determine who is to receive notices and the methods used to conduct notification." (Pa30). The Guidelines further provide that:

It will be the responsibility of each of these organizations and schools to take appropriate steps to educate and alert those staff members who are charged with the care and supervision of children, emphasizing that this information is intended to assist such staff members in the protection of their charges, not to provide notification to the community at large.

(Pa31-Pa32).

According to defendants, the warnings contained within the Guidelines have been further emphasized by public statements made by the Attorney General and county prosecutors condemning the publication of Megan's Law information in the news media. For example, defendants refer to a letter from former Attorney General Verniero to members of the media asking them to "act responsibly" when reporting on Megan's Law notifications. (Pa11). In addition, defendants argue that the Attorney General and county prosecutors have devoted significant resources towards increasing "the community's understanding of the purpose of Megan's Law and proper use of the information provided." (Defendants' brief, 16). As an example, defendants note that they have created and distributed a pamphlet entitled "A Citizen's Guide to Megan's Law" which counsels the recipients of Megan's Law notices not to distribute the notices to other members of the community or to take any vigilante actions against the registrants. (Da22). Defendants also argue that "[t]he majority of counties" have conducted training sessions for law enforcement, schools, and community organizations at which "the need for appropriate and responsible treatment and handling of the Megan's Law information" was emphasized. (Defendants' brief, 17-18).

Defendants dispute plaintiffs' contention that there are no credible penalties in place to deter unauthorized disclosures. First, defendants argue that a public servant who improperly distributes Megan's Law information could be prosecuted for official misconduct under N.J.S.A. § 2C:30-2. This statute states that a public servant...