Doe v. Poritz

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142 N.J. 1

662 A.2d 367, 64 USLW 2085, 36 A.L.R.5th 711

John DOE (a Fictitious Name), Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant and Cross-Respondent, v. Deborah PORITZ, Attorney General of the State of New Jersey Defendant-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued May 2, 1995.

Decided July 25, 1995.

John S. Furlong, West Trenton, for appellant and cross-respondent (Furlong and Krasny, attorneys).

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Deborah T. Poritz, Atty. Gen. of N.J., argued the cause pro se (Ms. Poritz, attorney; Joseph L. Yannotti and Jane A. Grall, Asst. Attys. Gen., and Madeleine W. Mansier, Deputy Atty. Gen., of counsel; Ms. Grall, Ms. Mansier, Michael J. Haas and Karen L. Suter, Sr. Deputy Attys. Gen., Rhonda S. Berliner, Patrick DeAlmeida, B. Stephan Finkel, Todd A. Wigder, and Sharon M. Hallanan, Deputy Attys. Gen., on the briefs).

Matthew Astore, Deputy Public Defender II, for amicus curiae Public Defender (Susan L. Reisner, Public Defender, attorney).

John J. Gibbons, Newark, for amicus curiae American Civ. Liberties Union of N.J. (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. Gibbons, Lawrence S. Lustberg, Jonathan Romberg, and Christopher T. Walsh, on the briefs).

Faith S. Hochberg, U.S. Atty., for amicus curiae U.S. (Ms. Hochberg, attorney; Stuart J. Rabner and George S. Leone, Asst. U.S. Attys., Leonard Schaitman, a member of the New York bar, Wendy M. Keats and Lowell V. Sturgill, members of the District of Columbia bar, on the briefs).

Glenn R. Paulsen, Trenton, for amicus curiae N.J. Senate (Capehart & Scatchard, attorneys).

Ronald K. Chen, Newark, submitted a brief on behalf of amicus curiae Carlos Diaz.

Geoffrey S. Berman, New York City, submitted a brief on behalf of amici curiae Maureen and Richard Kanka, Dick Zimmer, Randall Cunninghman, Nathan Deal, Jennifer Dunn, Tillie Flower, Thomas Manton, Susan Molinari, Jim Saxton, and Christopher Smith (Mudge Rose Guthrie Alexander & Ferdon, attorneys; Mr. Berman and Jacklyn K. Bartlett, on the brief).

Table of Contents
I        The Legislative Purpose: Addressing the Problem of Repetitive Sex  373
                                                                 Offenders
II                          The Laws and the Attorney General's Guidelines  377
III                                              The Challenges to the Law  380
IV               Interpretation of Statute; Revision of Attorney General's  381
                                               Guidelines; Judicial Review
V        Challenges Based on the Claim that the Laws Constitute Punishment  387
VI                                                                 Privacy  406
VII                                                       Equal Protection  413
VIII                                          Administrative Procedure Act  415
IX                       Procedural Due Process and Fairness and Rightness  417
X                                                               Conclusion  422

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The opinion of the Court was delivered by

WILENTZ, C.J.

On October 31, 1994, a group of bills concerning sex offenders became law. They are generally referred to as "Megan's Law," named after the second female child abducted, raped, and murdered during the prior year. The question before us is whether two of those bills, the Registration and Community Notification Laws, are constitutional. L.1994, c. 133 (Registration Law, N.J.S.A. 2C:7-1 to -5) and L.1994, c. 128 (Community Notification, N.J.S.A. 2C:7-6 to -11). We hold that they are, but that the prosecutor's decision to provide community notification, including the manner of notification, is subject to judicial review before such notification is given, and that such review is constitutionally required. In most respects, we affirm the judgment of the trial court.

The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and

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judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State's or our country's fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.

The choice the Legislature made was difficult, for at stake was the continued apparently normal lifestyle of previously-convicted sex offenders, some of whom were doing no harm and very well might never do any harm, as weighed against the potential molestation, rape, or murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence. The Legislature chose to risk unfairness to the previously-convicted offenders rather than unfairness to the children and women who might suffer because of their ignorance, but attempted to restrict the damage that notification of the public might do to the lives of rehabilitated offenders by trying to identify those most likely to reoffend and limiting the extent of notification based on that conclusion.

The legislative choice was undoubtedly influenced by the fact that if the law did not apply to previously-convicted offenders, notification would provide practically no protection now, and relatively

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little in the near future. The Legislature reached the irresistible conclusion that if community safety was its objective, there was no justification for applying these laws only to those who offend or who are convicted in the future, and not applying them to previously-convicted offenders. Had the Legislature chosen to exempt previously-convicted offenders, the notification provision of the law would have provided absolutely no protection whatsoever on the day it became law, for it would have applied to no one. The Legislature concluded that there was no justification for protecting only children of the future from the risk of reoffense by future offenders, and not today's children from the risk of reoffense by previously-convicted offenders, when the nature of those risks were identical and presently arose almost exclusively from previously-convicted offenders, their numbers now and for a fair number of years obviously vastly exceeding the number of those who, after passage of these laws, will be convicted and released and only then, for the first time, potentially subject to community notification.

I

The Legislative Purpose: Addressing the Problem of

Repetitive Sex Offenders

The challenged laws before us in this case have two basic provisions. First, they require registration with law enforcement authorities of certain convicted sex offenders and spell out the offenses that trigger the registration requirement, registration of those convicted prior to their passage limited to offenders found to have repetitive and compulsive characteristics. Second, they provide for notice of the presence of such offenders in the community, the scope of that notice measured by the likelihood that such offenders will commit another sex offense: where the risk of such reoffense is low, only law enforcement authorities are notified; where it is moderate, institutions and organizations having the responsibility to care for and supervise children and women are notified; and where the risk is high, those members of the public likely to encounter the offender are notified.

The purpose of the registration and the subsequent notification is set forth in the legislation itself.

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1. The Legislature finds and declares:

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 legislative concern about the problem, and the remedy selected, are best understood in the light of the nature and extent of the problem. There are varying views on that subject, but it is clear that the Legislature in formulating its policy accepted the view of the problem, and the facts concerning it, that...