Waterman v. Farmer

• Decision Date: 14 January 1999
• Docket Number: No. 98-6261,98-6261
• Citation: 183 F.3d 208
• Parties: (3rd Cir. 1999) RICHARD WATERMAN; MICHAEL CURTIS v. JOHN FARMER, JR., NEW JERSEY ATTORNEY GENERAL; JACK TERHUNE, NEW JERSEY COMMISSIONER OF CORRECTIONS; WILLIAM PLANTIER, SUPERINTENDENT OF THE ADULT DIAGNOSTIC & TREATMENT CENTER, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, APPELLANTS Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 208

183 F.3d 208 (3rd Cir. 1999)

RICHARD WATERMAN; MICHAEL CURTIS v. JOHN FARMER, JR., NEW JERSEY ATTORNEY GENERAL; JACK TERHUNE, NEW JERSEY COMMISSIONER OF CORRECTIONS; WILLIAM PLANTIER, SUPERINTENDENT OF THE ADULT DIAGNOSTIC & TREATMENT CENTER, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, APPELLANTS

No. 98-6261

U.S. Court of Appeals, Third Circuit

Argued: January 14, 1999

Filed June 30, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 98-cv-1938)

Lawrence S. Lustberg (argued) Mark A. Berman Laura K. Abel Gibbons, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, NJ 07102-5497 Attorney for Appellees

Peter Verniero Ronald L. Bollheimer Joseph L. Yannotti (argued) Adrianna Calderon Office of Attorney General of New Jersey Richard J. Hughes Justice Complex Trenton, NJ 08625 Attorneys for Appellants

Gregory J. Sullivan 3812 Quakerbridge Rd. Hamilton, New Jersey 08619 Dennis J. Saffran Center for the Community Interest New York Regional Office 345 East 37th Street, Suite 303 New York, New York 10016 Attorneys for Amici Curiae Center for the Community Interest, Assemblyperson Marion Crecco, The Friends of Amanda Foundation, Voices for Victims, The Mark Klaas Foundation for Children, Justice for All, Protecting Our Children, and Women Against Violence.

Before: Nygaard, Alito, and Lewis, Circuit Judges

OPINION OF THE COURT

Alito, Circuit Judge

Two prisoners at a facility for sex offenders who have exhibited "repetitive and compulsive" behavior filed this lawsuit under 42 U.S.C. § 1983, alleging that a recently enacted New Jersey statute, N.J.S.A. 2C:47-10, violated their constitutional rights by restricting their access to pornographic materials. The District Court concluded that the statute was unconstitutional and permanently enjoined state officials from enforcing it. Waterman v. Verniero, 12 F.Supp.2d 378 (D.N.J. 1998). Subsequent to the District Court's decision, the state adopted regulations clarifying the statute's scope. Informed by these regulations, we hold that the plaintiffs' constitutional challenge lacks merit, and we therefore reverse the decision of the District Court.

I.

Plaintiffs Richard Waterman and Michael Curtis are convicted pedophiles¹ incarcerated at the Adult Diagnostic and Treatment Center ("A.D.T.C.") in Avenel, New Jersey. The New Jersey Department of Corrections ("D.O.C.") operates the A.D.T.C. for the sole purpose of housing and rehabilitating sex offenders (i.e., pedophiles, child molesters, and rapists) who have exhibited behavior that is "repetitive and compulsive." Non-repetitive and non-compulsive sex offenders are housed in other institutions with the general prison population. The A.D.T.C. houses 750 inmates, approximately 70% of whom are pedophiles.

The A.D.T.C.'s therapeutic staff provides the inmates with intensive sex offender treatment, employing a four-step program that "is designed to present information and therapeutic experiences in a progressive order to ameliorate the offender's proclivity towards criminal sexual behavior." App. at 127. Each step focuses on concepts of victim empathy and the offender's sexual deviance. D.O.C. officials believe that this type of treatment can reduce recidivism.

In 1998, the New Jersey Assembly and Senate unanimously enacted a bill that banned "sexually oriented and obscene materials" from the A.D.T.C.² Governor Whitman signed the bill into law. The statute reads as follows:

"a. As used in this act, "sexually oriented material" means any description, narrative account, display, or depiction of sexual activity or associated anatomical area contained in, or consisting of, a picture or other representation, publication, sound recording, live performance, or film.

b. An inmate sentenced to a period of confinement in the Adult Diagnostic Treatment Center shall not receive, possess, distribute or exhibit within the center sexually oriented material, as defined in subsection a. of this section. Upon the discovery of any such material within the center, the commissioner shall provide for its removal and destruction, subject to a departmental appeal procedure for the withholding or removal of such material from the inmate's possession.

c. The commissioner shall request an inmate sentenced to confinement in the center to acknowledge in writing the requirements of this act prior to the enforcement of its provisions. Any inmate who violates the provisions of subsection b. of this section shall be subject to on-the-spot sanctions pursuant to rules and regulations adopted by the commissioner.

d. A person who sells or offers for sale the material prohibited in subsection b. either for purposes of possession or viewing or who receives, possesses, distributes or exhibits any text, photograph, film, video or any other reproduction or reconstruction which depicts a person under 18 years of age engaging in a prohibited sexual act or in the simulation of such an act as defined in section 2 of P.L. 1992, c. 7 (C.2A:30B-2), within the center shall be considered to have committed an inmate prohibited act and be subject to sanctions pursuant to rules and regulations adopted by the commissioner."

N.J.S.A. 2C:47-10.

Plaintiffs filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that the statute violated their constitutional rights. They named as defendants Peter Verniero, then the Attorney General of New Jersey;³ Jack Terhune, Commissioner of the New Jersey Department of Corrections; and William Plantier, Superintendent of the A.D.T.C. (collectively, "Defendants").

The District Court preliminarily enjoined the enforcement of N.J.S.A. 2C:47-10 pending a final determination regarding the statute's constitutionality. Waterman v. Verniero, 12 F.Supp.2d 364 (D.N.J. 1998) (Waterman I). The District Court later concluded that the statute was unconstitutional and permanently enjoined Defendants from enforcing it. Waterman v. Verniero, 12 F.Supp.2d 378 (D.N.J. 1998) (Waterman II). Defendants appealed.

Several weeks after this case was argued on appeal, counsel for Defendants advised the Court, pursuant to Fed. R. App. P. 28(j), that New Jersey had promulgated regulations implementing N.J.S.A. 2C:47-10. The regulations significantly narrow the statute's scope by defining many of the operative terms. The regulations contain the following definitions:

"Associated anatomical area" means exposed or unclothed genitalia or female breasts.

"Sexual activity" means actual or simulated ultimate sexual acts including sexual intercourse, oral sex, masturbation, or bestiality.

"Sexually oriented material" means a picture or other representation, publication, sound recording, live performance or film that contains a description or depiction of sexual activity or associated anatomical area, as these terms are herein defined."

N.J.A.C. 10A:18-9.1 (1999). The regulations also provide that "[m]aterials containing a depiction or description of sexual activity or an associated anatomical area shall not be considered `sexually oriented' unless the material is predominantly oriented to such depictions or descriptions." N.J.A.C. 10A:18-9.2(b). A publication is considered "predominantly oriented to the depiction or description of sexual activity or associated anatomical area" only if it "features or contains such descriptions or displays on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues." N.J.A.C. 10A:18-9.2(c).

The regulations prescribe the procedures that A.D.T.C. staff must follow when notifying inmates that a particular publication is prohibited by the statute. N.J.A.C. 10A:18-9.3. They also impose sanctions for violations of the statute, N.J.A.C. 10A:18-9.5, and exempt from regulation all materials deemed to serve a legitimate rehabilitative purpose, N.J.A.C. 10A:18-9.4.

II.

Defendants raise two arguments on appeal. First, they argue that the District Court erred in finding the statute unconstitutionally vague and overbroad. Second, they argue that the District Court erred in concluding that the statute is not rationally related to a legitimate penological interest. Because both of these arguments present questions of law, our review is plenary. See United States v. Various Computers & Computer Equip., 82 F.3d 582, 589 (3d Cir. 1996) ("Constitutional interpretations are questions of law subject to plenary review.").

A. Vagueness and Overbreadth

The District Court declared N.J.S.A. 2C:47-10 unconstitutionally vague⁴ and overbroad.⁵ In so doing, the Court noted that the statute was unconstitutional regardless of whether it was rationally related to a legitimate penological interest under Turner v. Safley, 482 U.S. 78 (1987). See Waterman II, 12 F.Supp.2d at 381 ("Although the Court need not address whether New Jersey had a valid penological interest when it passed N.J.S.A. 2C:47-10, it will briefly discuss the issue because the parties have hotly contested the issue and because the Court's analysis may aid the New Jersey Legislature if they decide to rewrite the statute.").

Defendants now argue that the District Court erred in concluding that it could declare the statute unconstitutional without first considering whether it was rationally related to a legitimate penological interest. We agree.

Constitutional challenges to laws, regulations, and policies governing prison management must be examined under the framework of Turner v. Safley, 482 U.S. 78 (1987). In Safley, the Supreme Court acknowledged that "courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform." Id. at 84 (internal quotations omitted). Accordingly, the Court set out "to formulate a [comprehensive] standard of review for prisoners' constitutional claims that is responsive both to the `policy of judicial complaints and [to] the need to protect constitutional rights.' " Id. (quoting Procunier v....