W.P. et al., Individually and as Representatives of a Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Plaintiffs, v. DEBORAH PORITZ, Attorney General of New Jersey; JEFFREY S. BLITZ, Atlantic County Prosecutor; CHARLES R. BUCKLEY, Acting Bergen County Prosecutor; STEPHEN G. RAYMOND, Burlington County Prosecutor; JOSEPH P. AUDINO, Acting Camden County Prosecutor; STEPHEN D. MOORE, Cape May County Prosecutor; NEIL S. COOPER, Acting Cumberland county Prosecutor; CLIFFORD J. MINOR, Essex County Prosecutor; HARRIS Y. COTTON, Gloucester County Prosecutor; CARMEN MESSANO, Hudson County Prosecutor; SHARON B. RANSAVAGE, Hunterdon County Prosecutor; MARRYANN K. BIELAMOWICZ, Mercer County Prosecutor; ROBERT W. GLUCK, Middlesex County Prosecutor; JOHN KAYE, Monmouth County Prosecutor; W. MICHAEL MURPHY, JR., Morris County Prosecutor; DANIEL J. CARLUCCIO, Ocean County Prosecutor; RONALD S. FAVA, Passaic County Prosecutor; RONALD A. EPSTEIN, Salem County Prosecutor; MELAINE B. CAMPBELL, Acting Somerset County Prosecutor; DENNIS O'LEARY, Sussex County Prosecutor; EDWARD NEAFSEY, Acting Union County Prosecutor; and JOHN J. O'REILLY, Warren County Prosecutor, Defendants.



Civil Action No. 96-97



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY



931 F. Supp. 1187; 1996 U.S. Dist. LEXIS 9335; 35 Fed. R. Serv. 3d (Callaghan) 327



March 15, 1996, Decided

March 15, 1996, FILED







DISPOSITION: [**1] Motion of plaintiffs to certify a class granted, and motion for preliminary injunctive relief granted.



COUNSEL: APPEARANCES:


For Plaintiffs: SUSAN L. REISNER, Public Defender, By: Michael Buncher, Chief Counsel, Special Hearings Unit, Office of the Public Defender, Trenton, New Jersey.


For Defendants: DEBORAH T. PORITZ, Attorney General, By: Rhonda S. Berlinger-Gold, Deputy Attorney General, Trenton, New Jersey.



JUDGES: JOHN W. BISSELL, United States District Judge



OPINIONBY: JOHN W. BISSELL



OPINION:

[*1191] OPINION


BISSELL, District Judge

This matter comes before the Court on the plaintiffs' motion to certify a class action. The present action was filed on January 16, 1996. The plaintiffs seek to enjoin the defendants from enforcing the Community Notification Act, N.J.S.A. 2C:7-1 et seq., (Megan's Law). (First Amended Complaint, hereinafter "Compl." at 9-10)

Plaintiff's claim that Megan's Law violates the ex post facto and double jeopardy clauses of the United States Constitution. (Compl., PP 35, 39) By Order of this Court on January 16, 1996, and subsequent Orders, the defendant has been enjoined from "issuing or disseminating in any manner Tier II or Tier III notifications [**2] regarding plaintiffs" until April 19, 1996 or until 10 days after the Third Circuit has issued its opinion on the appeal of Artway v. Attorney General et al., 83 F.3d 594, whichever first occurs.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331, and other statutory authority invoked in the Complaint, including 42 U.S.C. § 1983 and the Declaratory Judgment Act (28 U.S.C. § 2201).

FACTS

Each of the named plaintiffs has been convicted of a sex related offense as the result of a plea of guilty. (Compl., P 8) Currently, they are living in their respective communities within the State of New Jersey. (Compl., PP 9-30) The named plaintiffs have individually been classified under Megan's Law at either the Tier II or Tier III Level. (Plaintiff's Br. at 6-8). The offenses for which the named plaintiffs were convicted occurred prior to the enactment of Megan's Law. (Id.)

Once a registrant is notified of his tier classification under Megan's Law, he [*1192] must be afforded some judicial review before public notification. Doe v. Poritz, 142 N.J. 1, 107, 662 A.2d 367 (1995). The Supreme Court of New Jersey has established an "Outline of Procedure [**3] for Hearings on Objections to Megan's Law Tier 2 and Tier 3 Classifications and Manner of Notification Determinations." (Plaintiff's Br., App. A) The parties first have a pre-trial conference. at which time the judge may render a final determination. (Id. at A-5) If a hearing is required, then the judge will schedule a date 10-14 days thereafter and conduct an in camera proceeding. (Id.) At the conclusion of the hearing the judge must make a final determination. (Id.)

Originally, it was proposed that members of the private bar represent the registrants during these proceedings. See Maureen Castellano Who Will Blink First?; Bar Balks at Pro Bono: Wilentz Doesn't Budge, N.J.L.J., Oct. 30, 1995 at 1. Because of some difficulties with such pro bono representation, a plan was developed under which the majority of these individuals are represented by the New Jersey Public Defender. See Michael Booth, Public Defender to Take Over Megan's Law Representation, N.J.L.J., Nov. 6, 1995 at 4; Russ Bleemer Complaints Mount as Megan's Law Hearings Begin, N.J.L.J. Oct. 23, 1995 at 1.

As a result, the Office of the Public Defender has sought emergent relief [**4] from this Court on three separate occasions, as well as in proceedings before Judges Politan and Simandle. The focus of these proceedings has been the same: to enjoin the classification and notification process while the Third Circuit decides the ex post facto and double jeopardy constitutional issues in Artway v. Attorney General, et al.. In each of these cases, this relief has been granted.

The plaintiffs now seek to certify a class which consists of:


All persons required to register as a sex offender [sic] pursuant to N.J.S.A. 2C:7-1 et seq. and whose offenses were committed prior to October 31, 1994, the effective date of the New Jersey Registration and Community Notification Laws, and who have been or will be classified as a tier II or tier III offender.


(Complaint at P 5). They also seek injunctive relief for the class.

ANALYSIS


I. Certification of the Class Action

The decision concerning class certification is committed to the broad discretion of the District Judge. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 245 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). The plaintiffs [**5] have the burden of showing class certification is proper pursuant to Fed. R. Civ. P. 23. Id. To sustain a class certification, the named plaintiffs must first satisfy the requirements of Fed. R. Civ. P. 23(a). In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 131 (D.N.J. 1984).

Rule 23(a) provides that:


One or more members of a class may sue ... as representative parties on behalf of all only if


(1) the class is so numerous that joinder of all members is impracticable,


(2) there are questions of law or fact common to the class,


(3) the claims ... of the representative parties are typical of the claims ... of the class, and


(4) the representative parties will fairly and adequately protect the interests of the class.


Fed. R. Civ. P. 23(a).

If the requirements of 23(a) are met, then the plaintiffs must show that they are in one of the categories defined by Rule 23(b). The plaintiffs here purport to bring this action pursuant to Rule 23(b)(2) because


(2) the party opposing the class has acted or refuses to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding [**6] declaratory relief with respect to the class as a whole. . .


Fed. R. Civ. P. 23(b)(2)

A. Numerosity

The numerosity requirement demands that the class be so large that joinder of all members would be "impracticable." [*1193] Fed. R. Civ. P. 23(a). In the context of class actions, "impracticability" does not mean impossibility "but only the difficulty or inconvenience of joining all members of the class." Zinberg v. Washington Bancorp, Inc. 138 F.R.D. 397, 406 (D.N.J. 1990) (citing Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964)). This standard may be applied more flexibly in cases where injunctive relief alone is sought. Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir. 1984).

At the present time there are approximately 3380 registrants under Megan's Law, of which up to 2000 may eventually be classified at the Tier II or Tier III levels. (Compl., Exh. A; Plaintiff's Br. at 44). n1 These individuals reside in areas throughout the state. (Id.) As each registrant is notified of his or her preliminary classification at Tier II or Tier III, he or she has a limited window prior to final classification and notification in which to petition [**7] the U.S. District Court for relief. As a result, the Court has been, and in the future undoubtedly will be, required to entertain numerous new complaints, motions to add plaintiffs, and applications for temporary restraining orders and preliminary injunctions, on short notice. The continuation of this process for additional plaintiffs is impracticable, cumbersome, and may not insure protection to all who may be entitled to it.



n1 At oral argument and in defendants' papers, several different numbers regarding those persons currently subject to Tier II or Tier III classification were presented to the Court. Even the lowest of these demonstrated sufficient numerosity to justify a class action. See Weiss, 745 F.2d at 808, n.35.


B. Commonality

The commonality requirement is satisfied "if there are some questions of law or fact common to the class." Zinberg, 138 F.R.D. at 406 (citing Vargas v. Calabrese, 634 F. Supp. 910, 918 (D.N.J. 1986)). These claims do not have to be exactly the same as long [**8] as they are not in conflict. Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985), cert. denied, 474 U.S. 946, 88 L. Ed. 2d 290, 106 S. Ct. 343, 106 S. Ct. 342 (1985). If "class members can assert ... a single common complaint" it is unnecessary that they "have all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice." Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3d. Cir. 1994) (emphasis in original).

In this case, the members of the proposed class are all subject to the same type of judicial proceeding and community notification, at either Tier II or Tier III. If the proceedings or notifications violate the ex post facto or double jeopardy provisions of the United States Constitution for one of the proposed class members, then that is true for all. Although the proceeding itself is fact specific, this prong dictates that there be common questions of law or fact, but not necessarily both. Id. The federal constitutional issues of law are common and dominant in the present action.

C. Adequacy of Representation

When plaintiffs' interests are not antagonistic to those of other class members and plaintiffs' attorneys are qualified, the adequacy [**9] of representation requirement is met. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). The defendant has the burden of demonstrating that the representation would be inadequate. In re Asbestos School Litigation, 104 F.R.D. 422, 430 (E.D. Pa. 1984) (citing Lewis v. Curtis, 671 F.2d 779, 788 (3d Cir. 1982), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 144, 103 S. Ct. 176 (1982)).

Defendant argues that because some registrants have not contested the notification they are not adequately represented. (Defendant's Br. at 4). However this does not make the positions of the class antagonistic to these members. It cannot be seriously argued that any of the registrants under Megan's Law would prefer to have their lives disrupted by notification rather than remain anonymous. n2.



n2 Defendant further argues that notice should be given to allow class members to "opt out". A 23(b)(2) class action does not require notice to the class. Bolton v. Murray Envelope Corp., 553 F.2d 881 (5th Cir. 1977); see also Katz v. Carte Blanche Corp., 496 F.2d 747, 756 (3d Cir.). The Court may at its discretion require notice under Rule 23(d)(2). "In most cases, however, 'notice would add little or nothing.'" Wetzel, 508 F.2d at 256 (citing J. Moore Federal Practice at 1152 (2d ed. 1974)).

The possible, although unlikely, desire for some individuals to opt out cannot alone support the decision to require notice because in a 23(b)(2) action, members of the class do not have the right to opt out. Wetzel, 508 F.2d at 249. Any unfairness caused by this prohibition is "outweighed by the purposes behind class actions." Id. Furthermore, the present class is being certified because of the current status of the Artway case and the need for preliminary injunctive relief. Depending upon the Third Circuit's decision in Artway the duration of this class may be brief.


[**10]

[*1194] D. Typicality

Rule 23(a)(3) requires that plaintiffs' interests "are more or less coextensive with those of the class." In re Asbestos School Litigation, 104 F.R.D. at 429 (citing Sley v. Jamaica Water & Util., 77 F.R.D. 391, 394 (E.D. Pa. 1977). The requirement is intended to insure that the class action is "fully, fairly, and vigorously prosecuted." Id. Claims are typical if the plaintiffs' claims arise from the same event or course of conduct as the claims of the entire class. Zinberg, 138 F.R.D. at 407. "Actions requesting declaratory and injunctive relief to remedy conduct directed at the class clearly fit this mold to satisfy the typicality requirements of Rule 23(a)." Baby Neal, 43 F.3d at 58.

The elements that allegedly create the named plaintiffs right to relief: their status as convicted sex offenders residing in New Jersey; the date of their convictions prior to the effective date of Megan's Law; their present or imminent classification and notification under Tier II or III; are definitionally typical of the class. These elements are the primary relevant considerations in determining the constitutional issues that are now before the Third Circuit [**11] and this Court.

E. Generally Applicable Acts

Finally the plaintiffs must satisfy Rule 23(b), in this case 23(b)(2), and show that the defendant has "acted or refused to act on grounds generally applicable to the class." Fed. R. Civ. P. 23(b)(2). The Attorney General has acted, as is her duty, to enforce the provisions of Megan's Law. Although there may be differences in the factual settings of the classification hearings or the nature of the notification, they are being prosecuted as part of a general policy and program to enforce the statute. The County Prosecutors presumably are implementing the statute in a uniform manner. n3



n3 At oral argument on March 13, 1996 regarding the class certification question, accelerated consideration was given to plaintiffs' motion to file a Second Amended Complaint which would, inter alia, add all County Prosecutors as defendants. Those persons are indispensable parties; therefore, that motion was granted.


For the reasons set forth above, this Court certifies the [**12] plaintiff class as requested and described above:


II. Rooker-Feldman Abstention

A federal district court is not empowered to review the decision of the highest court of a state; that power rests solely with the United States Supreme Court. Asarco Inc. v. Kadish, 490 U.S. 605, 622, 104 L. Ed. 2d 696, 109 S. Ct. 2037 (1988). This is commonly referred to as the Rooker-Feldman doctrine, after the cases of Rooker v. Fidelity Trust Co., 263 U.S. 413, 68 L. Ed. 362, 44 S. Ct. 149 (1923) and District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983).


"'If the constitutional claims presented to a United States district court are inextricably intertwined' with the merits of a judgment rendered in the state court, 'then the district court is in essence being called upon to review the state-court decision. This the district court may not do.'"


Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (Marshall, J. concurring) (citing Feldman, 460 U.S. at 483-84 n. 16). If the issues are inextricably intertwined, then the federal court lacks subject matter jurisdiction to hear such claims. [**13] Port Auth. P.B.A. v. Port Auth. of N.Y. & N.J., 973 F.2d 169, 177 (3d. Cir. 1992).

[*1195] The Third Circuit has very recently revisited Rooker-Feldman abstention in the case of FOCUS v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834 (3d Cir. 1996). The Third Circuit found that Rooker-Feldman does not apply where the plaintiffs were not parties to the adjudication of the "intertwined" issues. Id. Slip Op. at 10. In Valenti v. Mitchell, 962 F.2d 288, 297 (3d Cir. 1991), the Third Circuit stated "we have found no authority which would extend the Rooker-Feldman doctrine to persons not parties to the proceedings before the state supreme court...".

It must be clearly stated that this Court is not being asked to review the decision of the Supreme Court of New Jersey in Doe v. Poritz. Instead, this Court is presented with the well-articulated precedent of Judge Politan's decision in Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995) which was decided prior to Doe. Even more importantly, this Court will soon be bound by the decision of the Third Circuit when it is announced in the Artway [**14] case, whether or not it is in agreement with Doe v. Poritz. In summary, this entire proceeding focuses upon the state of federal decisional law on the ex post facto and double jeopardy claims underlying it.


III. Younger Abstention

The defendants contend that this Court should abstain from exercising its jurisdiction in accordance with the doctrine described in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Under Younger, a federal court should refrain from enjoining state court proceedings. Id. at 43. This doctrine has its foundation in principles of equity, comity, and federalism. Id. at 43-45. A court must base its actions on "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Id. at 44.

Younger abstention is appropriate whenever there is 1) an ongoing state proceeding; in which 2) an important state interest is implicated; and 3) the plaintiff [**15] can obtain review of the constitutional claims in the state court. Hansel v. Town Court of Springfield, N.Y., 56 F.3d 391, 393 (2d Cir. 1995); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982). Such an abstention is applicable in a civil as well as criminal context where the noncriminal proceedings are closely related to a criminal action. Middlesex County, 457 U.S. at 432.

Although the Third Circuit has not ruled on the issue, some other Courts of Appeals have measured the availability of review of constitutional claims merely in terms of procedural or technical infirmity rather than substantive law. Hansel, 56 F.3d at 394. These courts have found that the fact that the state Supreme Court " has already rejected similar arguments ... does not mean those courts have deprived a plaintiff of the opportunity to make the argument." Duty Free Shop v. Administracion De Terrenos De Puerto Rico, 889 F.2d 1181, 1183 (1st Cir. 1989). The plaintiff may take his case through the state system and ultimately petition the Supreme Court of the United States if necessary. Id. This rationale has been followed [**16] even where there was binding precedent from the state supreme court. Dubinka v. Judges of Superior Court, 23 F.3d 218, 224 (9th Cir. 1994).

By contrast, other courts, including the District of New Jersey, have taken a broader view of Younger and required that there be "an adequate opportunity for redress of their constitutional claims" in the state forum. Bongiorno v. Lalomia, 851 F. Supp. 606, 613 (D.N.J.) (emphasis added), aff'd without opinion, 39 F.3d 1168 (3d Cir. 1994). Where binding state precedent makes submitting those same constitutional issues to a state forum futile, then a federal court should not decline to exercise its jurisdiction. Tolbert v. City of Memphis, 568 F. Supp. 1285, 1289-90 (W.D. Tenn. 1983); See also Mastin v. Fellerhoff, 526 F. Supp. 969, 971 (S.D. Ohio 1981); McKinstry v. Genesee [*1196] County Circuit, 669 F. Supp. 801, 805-06 (E.D. Mich. 1987).

The doctrine of abstention established in Younger is predicated upon the belief that state courts are equally capable of adjudicating federal constitutional issues in cases before them. Younger, 401 U.S. at 44. However, abstention was not intended to create a regime whereby a [**17] federal court would be effectively bound by state court precedent regarding the U.S. Constitution.

The New Jersey Supreme Court has already ruled in Doe and rejected the ex post facto and double jeopardy challenges to Megan's Law n4. Doe, 142 N.J. at 40-77. The state courts involved in the plaintiffs' proceedings are all bound by the decision of the New Jersey Supreme Court. The ineffectiveness of raising the present constitutional issues in those proceedings under Megan's Law has been made patently clear by the New Jersey Appellate Division in In the matter of G.B., No. A-2002-95 (App. Div. Jan. 18, 1996). The panel of the Appellate Division which has been assigned to hear all Megan's Law appeals stated:


"We need not address registrant's constitutional arguments. The Supreme Court in Doe rejected these arguments."


Id. at 7. The ex post facto and double jeopardy arguments which G.B. raised in that case and which the plaintiffs raise here will not, as a practical matter, receive any meaningful review in a New Jersey court.



n4 As discussed in Section II, supra, this case does not constitute a review of the findings of the Doe Court.


[**18]

If Younger is predicated solely upon a technical ability to raise constitutional arguments, then this Court must abstain. See, e.g. Dubinka, 23 F.3d at 224. However, if Younger recognizes the actual ability to secure the protection of constitutional rights, then there must be a realistic opportunity to deal with the merits of a constitutional claim in either forum. Otherwise, claimants' rights would only be protected if they are in the extremely small minority of cases which are granted certiorari by the United States Supreme Court. Given the existence of Doe and the pronouncement of the Appellate Division panel which would hear any appeal by the plaintiffs, to abstain in this case would be to value the form of the constitutional claim over the substance of the constitutional right. n5



n5 The absence of a realistic opportunity for plaintiffs to litigate their constitutional claims in state classification proceedings distinguishes the case at bar from Wilton v. Seven Falls, U.S. , 132 L. Ed. 2d 214, 115 S. Ct. 2137 (1995). Furthermore, Wilton holds that the decision to entertain or dismiss a declaratory judgment action under 28 U.S.C. § 2201 is left to the trial court's discretion.


[**19]

Finally, abstention would be inappropriate under either construction of Younger as this case falls within an exception to the doctrine. A federal court should not abstain "under extraordinary circumstances where the danger of irreparable loss is both great and immediate." Younger, 401 U.S. at 45. This serves to heighten the standard preliminary injunction analysis which merely requires some showing of irreparable harm. Id.

In the instant action the plaintiffs face imminent Tier II and Tier III notification. This could encompass the distribution of their names, addresses, descriptions, photographs, automobile descriptions, license plate numbers, and places of employment to those living near the plaintiffs' homes or jobs. (See e.g. R.T. v. Poritz). Even without considering the potential to incite vigilante activity, dissemination of this information could severely disrupt the lives of the plaintiffs and reduce their ability to maintain gainful employment. See e.g. Susan Edelman, Megan's Law Ricochets, The Bergen Record, Feb 2., 1996 (Compl., Exh. D). Such a harm is not only irreparable, but is clearly both "great and immediate" as contemplated by Younger. [**20] Therefore this Court should not abstain from exercising its jurisdiction. n6



n6 At oral argument, the Court's attention was directed for the first time herein to the federal anti-injunction act, 28 U.S.C. § 2283. Because the applicability of that statute to the case at bar is not presently certain, the Court will address that issue if and when it is presented in a Subsequent motion.



[*1197] IV. Preliminary Injunction

Much of the Court's analysis in this area has previously been elaborated in its oral opinion of January 26, 1996 in this case. The Court reiterates and incorporates those determinations by reference. However, a brief review is also warranted.

A. Standard for Preliminary Injunction

The Third Circuit standard governing a preliminary injunction is as follows:


in considering a motion for preliminary injunctive relief, a court must carefully weigh four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably [**21] injured by denial of such relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting preliminary relief will be in the public interest.


SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985); see also Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197-198 (3d Cir. 1990); Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958-959 (3d Cir. 1984); Continental Group v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980). Preserving the status quo of an action pending final determination is the primary purpose of a preliminary injunction. In re Arthur Treacher's Franchise Litigation, 689 F.2d 1150 (3d Cir. 1982). A plaintiff must establish both items (1) and (2) above in order to obtain a preliminary injunction. Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987).

B. Reasonable Likelihood of Success on the Merits

In order to obtain a preliminary injunction, plaintiffs must show a reasonable likelihood of success on the merits. In this case, this standard is judged not only in light of this Court's interpretation of the law, but on the nature [**22] of stare decisis. The claims put forth by the plaintiffs with regard to the ex post facto and double jeopardy claims are substantially identical to those advanced by the plaintiff in Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995). In fact those arguments have been expressly adopted by the plaintiffs. (Plaintiffs' Br. at 10).

In Artway Judge Politan found Megan's Law to be unconstitutional on ex post facto grounds. Artway, 876 F. Supp. at 692. This case was argued before the Third Circuit last Fall and an opinion is forthcoming in the near future. Given Artway, it is reasonably likely that the plaintiffs will succeed on the merits; not only because of the strength of their constitutional claims, but also because this Court may have binding precedent to follow with regard to adjudicating them.

C. Irreparable Harm

As has already been discussed in Section III, supra, the plaintiffs have more than met the showing of irreparable harm necessary to obtain preliminary injunctive relief.

D. Balance of Harms

Although the goal of Megan's Law, the protection of the public from sexual offenders, is undeniably important, the defendants [**23] will not be appreciably harmed in the near future. Proceedings before the courts of the State of New Jersey leading to final tier classifications may proceed uninterrupted by any preliminary injunction here. Only community notification at either the Tier II or Tier III levels is being restrained. The police should be notified immediately, both under the Tier I provisions of Megan's Law and under the terms of the injunction, regarding the whereabouts of the plaintiffs. Defendants have also made no showing that any of the plaintiffs pose a specific threat beyond the general statistical likelihood of recidivism for sexual offenders. n7 Coupled with the limited time frame of the injunction, this should minimize any negative impact on the defendants.



n7 See W.S. v. Poritz, Civil Action No. 96-491, slip op. at page 13 (D.N.J. Feb. 15, 1996).


E. Public Interest

The public has a profound interest in protecting the potential victims of sexual offenders. However the public has an equally vital [*1198] concern that the rights [**24] which all persons enjoy under our Constitution be fully protected. As Judge Politan stated in Artway:


While the Court recognizes the broad powers of the legislature in protecting the health, safety, and welfare of citizens, it must not lose sight of its judicial function even in the face of public outcry. It is this Court's function and responsibility to protect the constitutional rights of the minority or the individual. That role and task becomes most immediate and onerous in situations where legislatures encroach individual constitutional rights in the name of the common good. Plaintiff contends that Megan's Law presents such a crisis.


876 F. Supp. at 685. From the foregoing discussion it is apparent that only by entering the present preliminary injunction can this Court preserve the status quo and adequately protect both of these societal values.

The injunction will be entered in the form and scope previously employed in this case. However, the alternative fixed date of April 19, 1996 has been removed. While such a date was relevant for a temporary restraining order, it is much less material for the preliminary injunction in this case. The re-examination [**25] of all aspects of this action can only take place when the Third Circuit's decision in Artway is released, in the near future. Furthermore, all parties are protected by the provisions of this Court's Order which permits a motion for modification or other relief upon five business days' notice.

CONCLUSION

For the reasons stated above, the motion of the plaintiffs to certify a class is granted, and their motion for preliminary injunctive relief is also granted.

JOHN W. BISSEELL

United States District Judge


DATED: March 15, 1996

ORDER CERTIFYING A PLAINTIFF CLASS AND CONTINUING PRELIMINARY INJUNCTION

This matter having been opened to the Court by Michael Buncher, Esquire, Special Hearings Unit, Office of the Public Defender, attorney for plaintiffs and in the presence of Rhonda S. Berliner-Gold, Deputy Attorney General appearing on behalf of defendant Deborah Poritz, Attorney General, State of New Jersey; and in the presence of representatives of the proposed co-defendant County Prosecutors; and based upon the papers considered and oral argument being heard, and for good cause shown,

It is on this 15th day of March, 1996, ORDERED that:

1. The [**26] caption in this matter is hereby amended to read as set forth above, and any pleadings or other papers filed or served hereafter shall employ the caption stated above, except that the defendants may hereafter be referred to as Deborah Poritz, et al.;

2. This Order amends and supersedes the terms of prior injunctive Orders entered in this action;

3. A class is hereby certified pursuant to Fed. R. Civ. P. 23(a) and (b)(2) which consists of:


All persons required to register as sex offenders pursuant to N.J.S.A. 2C:7-1 et seq. whose offenses were committed prior to October 31, 1994, the effective date of the New Jersey Registration and Community Notification Laws, and who have been or will be classified as tier II or tier III offenders;

4. No formal notice to members of the class as contemplated by Fed. R. Civ. P. 23 shall issue at this time;

5. Leave is granted to plaintiffs to file a Second Amended Complaint which, inter alia, joins each of the County Prosecutors of the State of New Jersey as defendants;

6. The defendants, their officers, agents, servants, employees and attorneys, those persons under their general supervision, and all persons in active concert or [**27] participation with them who receive actual notice of this Order by personal service or otherwise, shall be restrained and enjoined from issuing or disseminating in any manner Tier II or Tier III notifications regarding members of the Class under N.J.S.A. 2C:7-1 et seq. (Megan's Law) during the pendency of this Preliminary Injunction;

7. Tier I notice may be given within seven days of the date of this Order for any member of the Class;

[*1199] 8. Defendants are not hereby restrained from proceeding with conferences and hearings before the Courts of the State of New Jersey, pursuant to Megan's Law, which may proceed to the point of final determination of the tier designation and manner of community notification for any member of the plaintiff Class;

9. Civil Action No. 95-98 (R.T. v. Christine Todd Whitman at al.) be and hereby is consolidated with the within action, the plaintiff therein is declared to be a member of the plaintiff Class, this Court's Orders of January 2, 1996 and February 26, 1996 in that action be and the same hereby are vacated, plaintiff R.T. is entitled to all the relief afforded to Class members in the present Order, and the $ 100 security posted in Civil Action [**28] No. 95-98 shall be treated hereafter as additional security in the case at bar;

10. The amount of $ 100 posted by the plaintiffs with the Clerk of the District Court, pursuant to Fed. R. Civ. P. 65(c), as security herein shall remain with the Clerk as security for this Preliminary Injunction;

11. This Preliminary Injunction shall expire 10 days from and after a decision by the United States Court of Appeals for the Third Circuit in the matter of Artway v. Attorney General of New Jersey, et al., 81 F.3d 1235 (3rd Cir. 1996).

12. Upon five business days notice, any party may move either to extend, modify, terminate or vacate any provision of this Order or to seek a dismissal of this action upon any ground, including any alleged absence of jurisdiction or power of this Court to grant relief to plaintiffs;

13. This Preliminary Injunction is immediately effective as of 4:00 p.m. on March 13, 1996;

14. This Order and the Opinion filed in conjunction therewith shall not be filed under seal; however all other papers heretofore and hereafter filed in this matter shall remain and be under seal until further Order of the Court;

15. The entry of this Preliminary Injunction is [**29] immediately appealable by any party;

16. The defendant's oral motion for a stay of this Order pending appeal is denied.

JOHN W. BISSELL

United States District Judge

--------------------------------------------------------------------------------


Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 04/12/1996)



[Editor's note: footnotes (if any) trail the opinion]

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

[2] NOS. 95-5157, 95-5194, 95-5195

[3] ALEXANDER A. ARTWAY

v.

[4] THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE

[5] Attorney General of New Jersey and Superintendent of the New Jersey State Police, Appellants in No. 95-5157

[6] ALEXANDER A. ARTWAY

v.

[7] THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE

[8] Chief of Police of Woodbridge Township, New Jersey Appellant in No. 95-5194

[9] ALEXANDER A. ARTWAY

v.

[10] THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE

[11] Alexander A. Artway, Appellant in No. 95-5195

[12] (Civ. No. 94-cv-06287)

[13] On Appeal From the United States District Court For the District of New Jersey

[14] Argued: October 17, 1995

[15] Present: BECKER, ROTH, Circuit Judges, and SHADUR, District Judge *fn*

[16] (Opinion Filed: April 12, l996)

[17] DEBORAH T. PORITZ, ESQUIRE (ARGUED)
Attorney General Of New Jersey [18] JOSEPH L. YANNOTTI, ESQUIRE
Assistant Attorney General [19] RHONDA S. BERLINER-GOLD, ESQUIRE [20] LARRY ETZWEILER, ESQUIRE [21] B. STEPHAN FINKEL, ESQUIRE
Deputy Attorneys General
Richard J. Hughes Justice Complex CN112
Trenton, NJ 08625

[22] Attorneys for Attorney General of New Jersey Appellant in No. 95-5157

[23] NEAL H. FLASTER, ESQUIRE (ARGUED) [24] RICHARD L. RUDIN, ESQUIRE [25] WEINER LESNIAK, ESQUIRE [26] JEREMY G. WEISS, ESQUIRE
299 Cherry Hill Road
Parsippany, NJ 07054

[27] Attorneys for the Chief of Police of Woodbridge Township, New Jersey, Appellant in No. 95-5194

[28] FAITH HOCHBERG, ESQUIRE (ARGUED)
United States Attorney [29] STUART RABNER, ESQUIRE [30] GEORGE S. LEONE, ESQUIRE
Assistant United States Attorneys
970 Broad Street, Room 502
Newark, NJ 07102

[31] FRANK W. HUNGER, ESQUIRE
Assistant Attorney General [32] LEONARD SCHAITMAN, ESQUIRE [33] WENDY M. KEATS, ESQUIRE
Attorneys, Appellate Staff
United States Department of Justice
Civil Division, Room 3127
10th & Pennsylvania Avenue, N.W.
Washington, DC 20530-0001

[34] Attorneys for United States of America, Amicus-Appellant in No. 95-5157

[35] GEOFFREY S. BERMAN, ESQUIRE [36] Mudge, Rose, Guthrie, Alexander & Ferdon
180 Maiden Lane
New York, New York 10038

[37] Attorney for Maureen Kanka, Richard Kanka, Dick Zimmer, Randall Cunningham, Nathan Deal, Jennifer Dunn, Tillie Fowler, Thomas Manton, Susan Molinari, Jim Saxton, Christopher Smith, Amicus-Appellants in No. 95-5157

[38] JOHN J. GIBBONS, ESQUIRE (ARGUED) [39] LAWRENCE S. LUSTBERG, ESQUIRE [40] JONATHAN ROMBERG, ESQUIRE [41] CHRISTOPHER WALSH, ESQUIRE [42] Crummy, Del Deo, Dolan, Griffinger & Vecchione
A Professional Corporation
One Riverfront Plaza
Newark, NJ 07102-5497

[43] Attorneys for Alexander A. Artway, Appellant in No. 95-5195

[44] RONALD K. CHEN, ESQUIRE (ARGUED)
Rutgers Constitutional Litigation Clinic
Rutgers University School of Law
15 Washington Street
Newark, NJ 07102

[45] Attorney for American Civil Liberties Union of New Jersey, Amicus-Appellant in No. 95-5195

[46] GLENN R. PAULSEN, ESQUIRE [47] Capehart & Scatchard, P.A.
A Professional Corporation
142 West State Street
Trenton, NJ 08608

[48] Attorney for the New Jersey Senate, Amicus-Appellant in No. 95-5157

[49] DENNIS C. VACCO, ESQUIRE
Attorney General of the State of New York [50] VICTORIA A. GRAFFEO, ESQUIRE
Solicitor General [51] PETER H. SCHIFF, ESQUIRE
Deputy Solicitor General [52] ANDREA OSER, ESQUIRE
Assistant Attorney General
New York State Department of Law
The Capitol
Albany, NY 12224

[53] Attorneys for the State of New York, Amicus-Appellant in No. 95-5157

[54] OPINION OF THE COURT

[55] BECKER, Circuit Judge.

[56] Alexander Artway thought that he had paid his debt to society by serving seventeen years in jail for a sex offense. After he was released, Artway settled in a community, secured employment, and married. Then, on October 31, 1994, New Jersey enacted Megan's Law. The Law requires certain sex offenders -- including those like Artway found at sentencing to be "repetitive and compulsive" -- to register with local law enforcement. It also requires community notification for registrants deemed a future risk. Artway sought an injunction against the enforcement of Megan's Law pursuant to 28 U.S.C. Section(s) 2201 and 42 U.S.C. Section(s) 1983, arguing that it punishes him, unconstitutionally, a second time. He also alleged that the Law provides insufficient procedural protections.

[57] After summary proceedings in which no evidence was heard and virtually no factual record developed, the District Court for the District of New Jersey held that the notification aspects of Megan's Law violated the Ex Post Facto Clause of the United States Constitution and enjoined their enforcement against Artway. The court upheld the constitutionality of the Law's registration component. Both sides appealed.

[58] These cross appeals present numerous questions (some of which are quite difficult): (1) Do the registration and notification provisions of Megan's Law constitute "punishment" within the meaning of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses of the U.S. Constitution? (2) Is Megan's Law unconstitutionally vague? (3) Does Megan's Law violate equal protection or due process? (4) Are any or all of Artway's claims unripe or moot? and (5) Was the district court's decision not to abstain under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941), proper? Timing is important not only to punishment, but also to proper judicial decisionmaking. Although we reject the State's contention that Artway's claims are moot because he has moved from New Jersey, ripeness problems preclude us from reaching the lion's share of Artway's claims. First, Artway's claims that Megan's Law's notification provisions violate the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses are unripe. Sex offenders are subject to notification only if the prosecutor finds a significant risk of recidivism -- a determination that, with respect to Artway, has not yet been made and cannot be easily forecasted. It is far from clear, therefore, that Artway will ever be subject to notification. Moreover, we cannot make the novel, difficult, and fact-sensitive determination whether the notification provisions constitute "punishment" -- the central question under all three clauses -- without a record of how notification will be implemented and what concrete effects it will have on Artway (or those similarly situated). Although Artway's contention that notification constitutes punishment is prima facie quite persuasive, the claim will be fit for judicial review only when Artway (or some other sex offender) submits to the notification process and the impact is chronicled in the record. Similarly, since Artway has not yet been classified under Megan's Law, his claim that he is due more process for receiving notice of and challenging a hypothetical determination regarding his dangerousness is unripe.

[59] With regard to Artway's claims that are currently justiciable, we hold first that Megan's Law's registration component does not violate the Ex Post Facto, Double Jeopardy, or Bill of Attainder Clauses as impermissible "punishment." As the following discussion will show, the law on "punishment" is complicated and in some disarray. We devote a significant portion of this opinion, therefore, to explaining and synthesizing caselaw on the "punishment" issue in order to formulate the correct legal test.

[60] We also hold that (1) the "repetitive and compulsive" classification of Megan's Law does not offend equal protection; (2) the alleged unreliability and unfairness of Artway's "repetitive and compulsive" determination does not violate due process; (3) Megan's Law is not unconstitutionally vague as applied to him; and (4) the district court did not err in refusing to abstain under Pullman.

[61] We therefore vacate the judgment of the district court insofar as it enjoins the enforcement of Tier 2 and Tier 3 notification under Megan's Law, and affirm that judgment insofar as it holds the registration provisions (including Tier 1 notification) of the Law constitutional.

[62] I. BACKGROUND FACTS

[63] In 1971, a New Jersey jury convicted Artway of sodomy. The statutory elements of Artway's crime did not require force, but the judge found that he had used violence and, as a result, sentenced him to an indefinite term in prison. See Artway v. Pallone, 672 F.2d 1168, 1170-71 & n.3 (3d Cir. 1982).*fn1 In addition, based in part on a prior statutory rape conviction, the judge made a finding for sentencing purposes that Artway's conduct was "characterized by a pattern of repetitive, compulsive behavior." See id. After serving seventeen years of the sentence, Artway was released in 1992 (he had been a fugitive from 1971 to 1975).

[64] In 1994, the New Jersey legislature enacted Megan's Law -- formally the New Jersey's Sexual Offender Registration Act, Pub. L. 1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11) -- in response to public outcry following the brutal rape and murder of a seven-year-old girl, Megan Kanka. Megan, her parents, and the community did not know that the murderer, who lived across the street from the Kankas, was a twice-convicted sex offender. The legislation was rushed to the floor as an emergency measure, skipping the committee process, and was debated only on the floor; no member voted against it.

[65] Megan's Law enacts a registration requirement and three tiers of notification. The registration provision requires all persons who complete a sentence for certain designated crimes involving sexual assault after Megan's Law was enacted to register with local law enforcement. N.J.S.A. 2C:7-2b(1). Those committing these offenses and completing all incarceration, probation, and parole before the Law's enactment must register only if, at the time of sentencing, their conduct was found to be "characterized by a pattern of repetitive and compulsive behavior." N.J.S.A. 2C:7-2b(1).

[66] The registrant must provide the following information to the chief law enforcement officer of the municipality in which he resides: name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary legal residence, and date and place of employment. N.J.S.A. 2C:7-4b(1). He must confirm his address every ninety days, notify the municipal law enforcement agency if he moves, and re-register with the law enforcement agency of any new municipality. N.J.S.A. 2C:7-2d to e.

[67] The registration agency then forwards the registrant's information, as well as any additional information it may have, to the prosecutor of the county that prosecuted the registrant. N.J.S.A. 2C:7-4c to d. The prosecutor, in turn, forwards the information to the Division of State Police, which incorporates it into a central registry and notifies the prosecutor of the county in which the registrant plans to reside. Id. This information is available to law enforcement agencies of New Jersey, other states, and the United States. N.J.S.A. 2C:7-5. The registration information is not open to public inspection. Law enforcement agencies are authorized to release "relevant and necessary information concerning registrants when . . . necessary for public protection," but only in accordance with the notification procedures we describe below. Failure of the sex offender to comply with registration is a fourth-degree crime. N.J.S.A. 2C:7-5.

[68] At this stage, the notification provisions are triggered. The prosecutor of the county in which the registrant plans to live must consider the information provided through registration and, in consultation with the prosecutor of the convicting county, determine whether the registrant poses a low, moderate, or high risk of reoffense. N.J.S.A. 2C:7-8d(1). In making that determination, the prosecutor must consider guidelines the Attorney General has promulgated pursuant to the Act. N.J.S.A. 2C:7-8a to b.

[69] The determination of risk as low, moderate, or high places the registrant in corresponding notification categories: Tier 1, Tier 2, or Tier 3. Under Tier 1 (low risk), the prosecutor must notify law enforcement agencies likely to encounter the registrant. N.J.S.A. 2C:7-8c(1). Under Tier 2 (moderate risk), the prosecutor, working with local law enforcement agencies, must notify schools, licensed day care centers, summer camps, and designated community organizations involved in the care of children or the support of battered women or rape victims. N.J.S.A. 2C:7-8c(2). Under Tier 3 (high risk), law enforcement agencies are required to notify members of the public likely to encounter the registrant. N.J.S.A. 2C:7-8c(3).

[70] The prosecutor makes this future risk determination using the "Registrant Risk Assessment Scale," promulgated by the Attorney General. See Registration and Community Notification Bench Manual 26. The Scale is a matrix of thirteen categories organized into four larger headings: (1) Seriousness of Offense; (2) Offense History; (3) Characteristics of the Offender; and (4) Community Support. Id.*fn2 The prosecutor scores each of these categories for different levels of risk -- low, moderate, or high. Id. In doing so, he or she is guided by commentary that includes factual examples. Id. at 17-25. This initial risk score is multiplied by coefficients that differ by category, and the data is tabulated for a final risk assessment score. Id. at 26. Finally, the prosecutor must consider whether two exceptions apply. "If an offender has indicated that he will reoffend if released into the community and the available record reveals credible evidence to support this finding, then the offender will be deemed a high risk . . . ." Id. at 16. Conversely, "if the offender demonstrates a physical condition that minimizes the risk of reoffense, then the offender will be deemed to be a low risk." Id.

[71] The form of notification under Tiers 2 and 3 includes the registrant's name, a recent photograph, his physical description, offense, address, place of employment or schooling, and a description and license plate number of the registrant's vehicle. Id. at 39. Those notified under Tier 2 are informed that the information is not to be shared with the general public, and every notification must contain a warning about the criminal consequences of vandalism, threats and assaults against the registrant or any of his associates. Id. at 40.

[72] The New Jersey Supreme Court, in upholding the constitutionality of Megan's Law in Doe v. Poritz, 142 N.J. 1 (1995), read the following additional procedural protections into the statute. First, Tier 2 notice must be confined to those likely to encounter the registrant. Id. at 29. Second, the prosecutor must give the registrant notice, unless "impossible as a practical matter," before any Tier 2 or 3 notification. Id. at 30-31. Third, a court must provide an opportunity for a judicial hearing, in camera, in which the registrant bears the burden of persuasion. Id. at 31-32.

[73] Because every registrant is classified at a minimum under Tier 1, this lowest level of notification accompanies every registration. Tier 1 requires notice only to law enforcement, whereas Tier 2 and Tier 3 both result in notice to the community. Consequently, for purposes of the subsequent discussion, "registration" will include registration and Tier 1 notification, while "notification" will refer to Tier 2 and Tier 3 notification.

[74] II. PROCEDURAL HISTORY

[75] Artway sought declaratory relief, pursuant to 28 U.S.C. Section(s) 2201 and 42 U.S.C. Section(s) 1983, alleging that enforcement of Megan's Law against him would violate his federal constitutional rights, including equal protection, due process, and the right not to be punished in violation of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses. The district court decided the case in the most summary fashion. After the State moved to dismiss Artway's motion for injunctive relief, Artway urged the district court to construe his original motion as one for summary judgment. The court obliged. It allowed no discovery, heard no testimony, and made no findings of fact. Instead, it ruled as a matter of law on all the complex issues pending before it.

[76] The court opened its opinion by brushing aside a ripeness challenge to Artway's claims. The court then held that the registration component of Megan's Law was constitutional, but that Tier 2 and Tier 3 notification violated the Ex Post Facto Clause. In doing so, it treated this case as an abstract issue of law. The court recited caselaw on the Ex Post Facto, Cruel and Unusual Punishment, Bill of Attainder, and Double Jeopardy Clauses. It also invoked state court cases, and, as might be expected, it discussed the Scarlet Letter.*fn3 The resulting record contains only one piece of information describing the indirect effects of Megan's Law on Artway: a copy of a Guardian Angel flier distributed in Artway's community warning people to "BEWARE."*fn4

[77] But even that evidence is not discussed in the district court's opinion. Instead, the court asserted that the registration component of Megan's Law is constitutional "for the reasons expressed in Arizona v. Noble, [829 P.2d 1217 (Ariz. 1992)]." Artway v. Attorney General, 876 F. Supp. 666, 688 (D.N.J. 1995). It then invalidated the notification provisions of Megan's Law using the seven-factor test for punishment of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). The court enjoined New Jersey, at first preliminarily and then permanently, from enforcing the notification provisions of Megan's Law. It did not reach Artway's other arguments, such as the Due Process and Equal Protection challenges he presses before this Court.

[78] Artway appeals the district court's ruling that registration and Tier 1 notification are constitutional, and presses his Due Process and Equal Protection arguments should this Court find Tier 2 and Tier 3 constitutional. The State appeals the district court's holding that Tier 2 and Tier 3 are unconstitutional. At this juncture, these issues all present legal questions, subject to plenary review.*fn5 See American Medical Imaging Corp. v. St. Paul Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir. 1991).

[79] III. MOOTNESS

[80] As a threshold matter, we reject the State's assertions that Artway's appeal is moot because he has moved out of New Jersey. Artway no longer has a live claim, the State argues, because his move from New Jersey voided his duty to register. The State points us to Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in which the Supreme Court held that environmentalists did not have injury in fact because they could not show any concrete evidence, such as a plane ticket, of their intent to return to the foreign country where the challenged environmental action would take place. Like the environmentalists in Lujan, New Jersey argues, Artway's "bald assertion that he intends to return to New Jersey . . . rests on conjecture and is entirely hypothetical." But if the record is clear on nothing else, it shows that Artway's obligation to register is keeping him from returning to New Jersey, and that situation presents a real controversy. The litigants in Lujan merely opined that they planned to visit the site, in a foreign country, "some day" in the future. 504 U.S. at 564 & n.2. Artway, in contrast, lived in New Jersey -- where he established a home, a family, and a job -- until March 3, 1995. He left shortly after Megan's Law was passed and has sworn that Megan's Law is keeping him from moving back. Indeed, he brought this litigation, originally pro se, in order to return there. Artway cannot live in New Jersey without either complying with Megan's Law, which undoubtedly burdens him, or facing prosecution. Especially given the constitutional right to move interstate, see Shapiro v. Thompson, 394 U.S. 618 (1969), this Hobson's choice constitutes sufficient injury in fact even under Lujan's standing analysis.

[81] In addition to being factually different from Lujan, the State's mootness claim is legally different from that case. Lujan addressed standing, which inquires whether someone is the proper party to bring a law suit at the beginning of the case. Doctrinally, to satisfy core Article III requirements, standing requires (1) that the plaintiff suffer injury in fact, (2) that the injury be fairly traceable to the challenged conduct, and (3) that a favorable ruling would redress the injury. See Lujan, 504 U.S. at 560-61. Mootness, on the other hand, asks whether a party who has established standing has now lost it because the facts of her case have changed over time. Thus, the threshold for satisfying the prohibition against mootness is somewhat lower than that for standing. "[T]he central question in mootness inquiries is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief." Huber v. Casablanca Indus., Inc., 916 F.2d 85, 107 (3d Cir. 1990) (internal quotations omitted), overruled on other grounds by Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co., 115 S. Ct. 981 (1995); accord Zellous v. Broadhead Associates, 906 F.2d 94, 100 (3d Cir. 1990) ("An action becomes moot when '(1) there is no reasonable expectation that the alleged events will recur . . . and (2) interim relief or events have completely eradicated the effects of the violation.'") (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).*fn6

[82] The opportunity for meaningful relief is still present here. Artway ceased the activity which unquestionably granted him standing -- living in New Jersey -- only upon threats of enforcement. And he has sworn to his desire to return if Megan's Law is invalidated. Cf. Begins v. Phillbrook, 513 F.2d 19, 24 (1975) (holding case not moot even though plaintiffs sold second automobile on threats of benefit termination when they demonstrated continuing desire to own two cars).

[83] IV. RIPENESS

[84] A. Introduction

[85] We next examine the State's assertions that Artway's ex post facto, double jeopardy, bill of attainder, and due process challenges are not ripe. Article III, as part of its "case or controversy" mandate, requires parties to suffer injury or come into immediate danger of suffering an injury before challenging a statute. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974). The basic rationale of the ripeness requirement is "to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Ripeness prevents courts from interference with legislative enactments until it is necessary to do so, and enhances the quality of judicial decisionmaking by ensuring that cases present courts an adequate record to permit effective review and decisionmaking. See id. Ripeness involves weighing two factors: (1) the hardship to the parties of withholding court consideration; and (2) the fitness of the issues for judicial review. See 387 U.S. at 149.*fn7

[86] B. The Ex Post Facto, Bill of Attainder, and Double Jeopardy
Challenges

[87] Artway contends that Megan's Law imposes unconstitutional punishment under the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses. Under the Ex Post Facto Clause, the government may not apply a law retroactively that "inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). Under the Bill of Attainder Clause, legislatures are forbidden to engage in "[l]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." United States v. Brown, 381 U.S. 437, 448-49 (1965). Finally, the Double Jeopardy Clause prohibits, inter alia, "a second prosecution for the same offense after conviction . . . and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440 (1989).

[88] The crux of Artway's argument is that Megan's Law imposes unconstitutional "punishment." In analyzing the ripeness of these challenges, we must carefully distinguish between the registration and notification provisions of Megan's Law. We shall not, however, distinguish among the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses; their differences with respect to the requisites of "punishment," if any, are not relevant here.

[89] 1. Hardship of Denying Review

[90] The first factor for determining ripeness is the hardship of denying review. Abbott Labs., 387 U.S. at 149. The district court considered this factor, but failed to distinguish between the registration and notification aspects of Megan's Law. The hardship factor inquires whether the threat of prosecution is "credible," and not merely "speculative," so as to be concrete for purposes of Article III. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Although preenforcement review is the exception rather than the rule, "[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Id. (internal quotations omitted); accord Steffel v. Thompson, 415 U.S. 452, 459 (1974) ("[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute he claims deters the exercise of his constitutional rights."); Abbott Labs., 387 U.S. at 154 (holding a business's challenge to a labeling statute ripe even though the company had not been threatened specifically with prosecution).

[91] This Court has afforded review even when the state has taken no active measures toward prosecution. For example, in Presbytery of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454 (3d Cir. 1994), we held that a church pastor's preenforcement challenge to New Jersey's anti-discrimination law was ripe for adjudication when the pastor had announced his intention to speak against homosexuality even though the government had not actually threatened to prosecute. That the state would not disavow the possibility of prosecution for activities outside the church was enough to make the threat "real and substantial." Id. at 1468.

[92] On the other hand, "[m]any cases deny ripeness on the straight-forward ground that the anticipated events and injury are simply too remote and uncertain to justify present adjudication." 13A Charles A. Wright et al., Federal Practice and Procedure Section(s) 3532.2, at 138 (1984). A substantial contingency is the classic impediment to a preenforcement challenge. For example, in New Hanover Tp. v. United States Army Corps of Engineers, 992 F.2d 470, 473 (3d Cir. 1993), we held that a challenge to construction of a municipal waste landfill was unripe because the state had not yet granted a necessary water quality certificate. Although the Army Corps of Engineers had granted another permit that the plaintiffs sought to challenge, we explained, construction of the landfill still could not commence: "[T]he effects of the Corps' deciding that [the project] may proceed . . . will not be felt in a concrete way unless and until the [state] grants [the project] a water quality certificate." Id.; see also Acierno v. Mitchell, 6 F.3d 970, 975-77 (3d Cir. 1993) (holding challenge to zoning decision unripe when review board had not yet made final decision); Wilmington Firefighters Local 1590, Int'l Ass'n of Firefighters v. City of Wilmington, Fire Dept., 824 F.2d 262, 266 (3d Cir. 1987) (holding challenge to yet uncreated promotion lists unripe because they were "purely a matter of conjecture").

[93] Artway urges that both the registration and notification components of Megan's Law constitute unconstitutional "punishment" under the Ex Post Facto, Double Jeopardy, and Bill of Attainder Clauses. Artway's challenge to the registration provisions of Megan's Law satisfies the hardship prong. Like the petitioners in Babbitt, Steffell, Abbott Labs. and Florio, he faces the decision of complying with a putatively invalid law or suffering prosecution. Registration presents no contingency for Artway. If he resides in New Jersey, he must provide certain information to local law enforcement. And the high profile of Megan's Law, and Artway's case in particular, virtually assures that Artway will be prosecuted if he engages in his allegedly protected conduct: returning to New Jersey without registering. In fact, the Attorney General assured the district court at oral argument that she would prosecute Artway if he failed to register. See Artway v. Attorney General, 876 F. Supp. 666, 670 n.4 (D.N.J. 1995). Under these circumstances, the threat of prosecution Artway faces satisfies any test of the Supreme Court and of this Court: these threats are credible, real, and substantial.

[94] In sharp contrast, Artway's challenge to the notification provisions of Megan's Law fails this prong. Unlike registration, notification involves a crucial contingency: only if, after registering, Artway is classified as a moderate or high risk of reoffense will he face notification. This classification hinges on a New Jersey prosecutor's future decision to be reached after applying the Attorney General's "Registrant Risk Assessment Scale." See supra pages 12-13. The State prosecutor, possessing the pertinent information not present in this record, scores these thirteen categories for different levels of risk, employing the corresponding eleven pages of guidelines. The prosecutor then multiplies by differing coefficients, tabulates the data for a risk assessment score, and considers whether exceptions apply.

[95] As in New Hanover Township, Acierno, and Wilmington Firefighters, whether this contingency will ever come to pass is a matter of speculation. We may not pass upon hypothetical matters. And Artway faces no hardship from denying review of his notification challenges at this point. If he registers, and if the State decides that his situation warrants community notification, he may seek to enjoin that action at that time. Thus, the "hardship" factor alone precludes review of Artway's notification claims.*fn8

[96] 2. Fitness of Issues for Judicial Review

[97] The second factor for evaluating ripeness, this one never mentioned by the district court, is whether the issues are fit for judicial review. Abbott Labs., 387 U.S. at 149. In making this determination, we must once again distinguish between the registration component of Megan's Law on the one hand, and the notification provisions on the other. The principal consideration is whether the record is factually adequate to enable the court to make the necessary legal determinations. The more that the question presented is purely one of law, and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa. Compare Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81-82 (1978) ("Although it is true that no nuclear accident has occurred and that such an occurrence would eliminate much of the existing scientific uncertainty surrounding this subject, it would not, in our view, significantly advance our ability to deal with the legal issues presented nor aid us in their resolution.") with Zemel v. Rusk, 381 U.S. 1, 20 (1965) ("[I]f we are to avoid rendering a series of advisory opinions, adjudication of the reach and constitutionality of [a statute under which the President prohibited travel to Cuba] must await a concrete fact situation.").

[98] Courts are particularly vigilant to ensure that cases are ripe when constitutional questions are at issue. See Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 81 (1961) (holding unripe an ex post facto challenge to Corrupt Practices Act especially in light of the rule to avoid unnecessary constitutional decisions). Indeed, the Supreme Court has held a constitutional challenge unripe because of the need for more detailed factual information in the record "[e]ven though the challenged statute is sure to work the injury alleged." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 300 (1979).

[99] Two Supreme Court cases illustrate the need for factual information particularly well. In Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972), the Court dismissed as unripe a challenge on First Amendment grounds to a state law that required candidates to swear not to attempt to overthrow the government by violence or force. The Court concluded that "the record . . . is extraordinarily skimpy in the sort of proved or admitted facts that would enable us to adjudicate this claim." Id. at 587. Even assuming the plaintiffs had standing to challenge the law, the Court continued, "their case has not given any particularity to the effect on them of Ohio's affidavit requirement." Id. at 588. In California Banker's Association v. Schultz, 416 U.S. 21 (1974), the Court similarly declared unripe a First Amendment challenge to bank record-keeping and reporting requirements because of an insufficient factual record. Id. at 56. "This Court, in the absence of a concrete fact situation in which competing associational and governmental interests can be weighed, is simply not in a position to determine whether an effort to compel disclosure of such records would or would not be barred . . . ." Id.

[100] Megan's Law's registration provisions require simply that Artway register and provide information to the local prosecutor, who in turn may provide the information only to local law enforcement agents. No private individuals or other organizations may receive this information. Registration, therefore, involves few variables in its operation. As in Duke Power, the issue is primarily one of law and further factual information will provide little assistance. Under these circumstances, we are confident that Artway's registration challenge is fit for judicial review.

[101] The notification procedures, on the other hand, involve dissemination of potentially devastating information to undetermined numbers of private citizens. Because these private citizens are not part of the trained state law enforcement mechanism, we are less certain how they will react. For instance, the one study in the record chronicles a number of incidents of harassment at the hands of private citizens as a result of the State of Washington's notification law, but records no incidents on the part of law enforcement. We also lack concrete record evidence about what Artway's future dangerousness classification will be, on what facts this classification will be determined, and who will be notified.*fn9

[102] Because Artway has not submitted to these procedures, and because the district court decided this case without admitting any appreciable evidence, we have almost no factual grounding on which to make an assessment about notification as applied to Artway. The record contains two pieces of data: a flier distributed by the Guardian Angels warning Woodbridge residents to "BEWARE" and the brief State of Washington report describing the effects of a different law in that jurisdiction.*fn10 While the tenor of the flier and the results of the study are worrisome indeed, they are but snippets compared to a developed record. Consistent with the basic principles of Gilligan, Schultz et alia, we cannot make complex and important determinations in a factual vacuum.

[103] Moreover, the constitutionality of the notification provisions of Megan's Law may well turn on the most careful parsing of the Supreme Court's rulings on "punishment." Not only must we decide whether a multifaceted and novel*fn11 regulatory scheme violates constitutional safeguards, we must also discern the parameters of these safeguards themselves. As the discussion in Part V infra reveals, the law in this area, like an adolescent's room, needs tidying. We may not undertake this task without factual tools.

[104] Thus, Artway's challenge to the notification provisions of Megan's Law fails both prongs of the ripeness test. The district court erred because, in analyzing the hardship of denying review, it did not distinguish between registration and notification; it also omitted the fitness for judicial review prong entirely. Whether Artway will ever be subject to Megan's Law's notification requirements remains a matter of speculation, and the record lacks the factual information necessary for this Court to decide Artway's notification claims consistent with its Article III obligations.

[105] C. Due Process Claims

[106] Two of Artway's due process claims are also unripe. Artway argues that Megan's Law denies him due process because, to avoid notification, he bears the burden of persuasion to demonstrate that he is not a risk of future danger. He also claims that Megan's Law does not provide adequate notice of the State's intention to initiate notification. The district court did not reach these issues because it held the notification provisions of Megan's Law unconstitutional under the Ex Post Facto Clause. Since we have already discussed ripeness extensively, we analyze these claims more briefly.

[107] 1. Burden of Persuasion

[108] The Fourteenth Amendment forbids states from denying "life, liberty, or property, without due process of law." U.S. Const. amend. XIV. For purposes of this analysis, we will assume that notification under Megan's Law implicates a liberty interest under state law sufficient to invoke federal due process protections. Doe found such an interest. See 142 N.J. at 104; accord Hewitt v. Helms, 459 U.S. 460, 466 (1983) (holding that Due Process Clause protects state created liberty interests as well as federal). But cf. Sandin v. Connor, 115 S. Ct. 2293, 2297-2300 (1995) (rejecting Hewitt's methodology of examining state regulations rather than nature of deprivation in determining existence of liberty interest and suggesting limits on scope of state-created liberty interests that trigger federal due process safeguards).

[109] Due process is a flexible concept determined by application of a three-part balancing test: (1) the private interests affected by the proceeding; (2) the risk of error imposed by the procedure created by the State; and (3) the countervailing interest in using the procedures it adopted. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). This test applies to burdens of proof. See Heller v. Doe, 113 S. Ct. 2637, 2644 n.1 (1993).

[110] Artway argues that all three factors of the Mathews test counsel rejection of the State's procedure, which places the burden of persuasion on the sex offender to prove that he is not dangerous in order to avoid notification. Rather, Artway contends, the State should bear the burden of persuasion and that burden should be by clear and convincing evidence. Artway submits that (1) his private interest in not being branded a dangerous sex offender is very great; (2) the fact that the State possesses greater resources counsels that it should bear a greater share of the burden (especially when Artway is called on to "prove the negative," i.e., that he is not dangerous); and (3) the State's interest is in getting the determination right, not in notifying in all cases. Cf. Santosky v. Kramer, 455 U.S. 745 (1982) (state bears burden of persuasion by clear and convincing evidence for parental-rights termination); Addington v. Texas, 441 U.S. 418 (1979) (same for civil commitment proceedings).

[111] Artway also asserts that judicial deference to the prosecutor's findings violates due process by establishing a constitutionally excessive presumption against him. Cf. Virgin Islands v. Parrilla, 7 F.3d 1097 (3d Cir. 1993) (striking down statute creating rebuttable mandatory presumption). Under Megan's Law, the judge "shall affirm the prosecutor's determination unless . . . persuaded by a preponderance of the evidence that it does not conform to the laws and the Guidelines." Doe, 142 N.J. at 32.

[112] Although Artway's challenges on these issues are forceful, his claims are not ripe. That he will ever confront the process he challenges is entirely speculative at this point. This process is available to contest notification decisions, and Artway would be the subject of notification (as opposed to merely registration) only if he is classified as a Tier 2 (moderate risk) or Tier 3 (high risk) offender. While we know that Artway will be prosecuted if he does not register, we do not know whether, even if he does register, he will ever need to utilize the process he challenges.

[113] 2. Notice

[114] Due process requires "notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314 (1950). Artway argues that Megan's Law does not provide for adequate notice of the commencement of notification proceedings. The Law requires notice to registered sex offenders classified as Tier 2 or Tier 3 before the corresponding notification occurs. However the Act, as interpreted by Doe, dispenses with notice when "impossible as a practical matter." 142 N.J. at 30-31. An erroneous notification would inflict an irreparable deprivation of his liberty interest, Artway argues, so that the State can never dispense with notice (and his corresponding right to a hearing). See United States v. Raffoul, 826 F.2d 218, 224 (3d Cir. 1987) ("[A] likelihood of irreparable harm resulting from the lack of a pre-deprivation hearing is a private interest which countervails any public interest in streamlined administration.").

[115] But Artway's notice claim is unripe for the same two reasons as his "punishment" and burden of persuasion challenges. First, his need for notice about proposed notification is speculative. Artway will need notice only if he is classified as a Tier 2 or Tier 3 risk. Second, the record in this case is insufficient to make this determination. The question is whether the notice requirement of Megan's Law satisfies the strictures of due process. Mullane makes clear that the right to notice is not absolute; rather, Artway has a right to "reasonably calculated" notice. 339 U.S. at 314. And Raffoul demonstrates that the State cannot dispense with notice when that notice is possible and irreparable harm could result. 826 F.2d at 224. Against this legal backdrop, we must evaluate Megan's Law's "impossible as a practical matter" standard, but we have no factual matrix against which to evaluate this standard because Artway has not submitted to Megan's Law.*fn12

[116] D. Summary of Unripe Claims

[117] In summary, we conclude that Artway's ex post facto, double jeopardy, bill of attainder, and due process challenges to Megan's Law's notification provisions are not ripe.*fn13 We therefore vacate the judgment of the district court insofar as it holds Tier 2 and Tier 3 notification unconstitutional, and direct it to dismiss Artway's due process claims to the extent they concern notification.

[118] V. REGISTRATION

[119] A. "Punishment" Under the Ex Post Facto, Bill of Attainder, and
Double Jeopardy Clauses

[120] We turn now to the merits of Artway's ripe challenge: that the registration provisions of Megan's Law violate the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses. We begin by recapping the nature of those protections. The Constitution provides that "[n]o state shall . . . pass any . . . ex post facto Law." U.S. Const. art. I, Section(s) 10. Under the Ex Post Facto Clause, the government may not apply a law retroactively that "inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

[121] The Constitution also forbids states to "pass any Bill of Attainder." U.S. Const. art. I, Section(s) 10.*fn14 Under the Bill of Attainder Clause, legislatures are forbidden to enact "[l]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." United States v. Brown, 381 U.S. 437, 448-49 (1965).

[122] Finally, the Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "[T]he Double Jeopardy Clause prohibits, inter alia, "a second prosecution for the same offense after conviction . . . and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440 (1989). The threshold question under each clause, therefore, is whether the registration provisions of Megan's Law impose "punishment." If registration does not impose punishment, our inquiry with respect to the registration issue is at an end.*fn15

[123] We must sort through several key cases involving these various provisions to derive (or, perhaps more appropriately given the confused state of the law, "divine") the test for punishment. In the end, we develop a multi-part test that looks to the legislature's subjective purpose in enacting the challenged measure, its "objective" purpose in terms of proportionality and history, and the measure's effects.

[124] 1. De Veau v. Braisted: Subjective Purpose

[125] We start with De Veau v. Braisted, 363 U.S. 144 (1960), in which the Supreme Court announced a subjective (or actual) legislative purpose test. In that case, the Court upheld, against bill of attainder and ex post facto challenges, a law forbidding certain unions employing former felons from collecting dues. In effect, the law barred convicted felons from working on the New York and New Jersey waterfront. The Court explained that "[t]he question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the qualifications of a profession." Id. at 160 (emphasis added).

[126] "The proof is overwhelming," the Court continued, "that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony." Id. This early case, emphasized by New Jersey, suggests that actual legislative purpose is the only inquiry. But subsequent cases make clear that this is no longer true.

[127] 2. United States v. Halper: Objective Purpose through
Proportionality

[128] Almost thirty years later, in United States v. Halper, 490 U.S. 435 (1989), the Court articulated an "objective" legislative intent test -- the test central to the arguments of both Artway and the State. Halper held that a sizeable fine, imposed in a civil proceeding after the defendant's conviction for Medicare fraud, violated the Double Jeopardy Clause. The Court analyzed the issue by determining whether the fine served the purposes of punishment, including retribution and deterrence, or instead satisfied a remedial purpose. "Simply put, a civil as well as a criminal sanction constitutes punishment," the Court said, "when the sanction as applied in the individual case serves the goals of punishment." Id.

[129] We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. Furthermore, retribution and deterrence are not legitimate non-punitive governmental objectives. From these premises, it follows that a civil sanction that cannot be fairly said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand that term.

[130] Id. at 448 (citations and internal quotations omitted) (emphasis added).

[131] The Court found that the fine in that case -- $130,000 -- bore "no rational relation" to the legitimate remedial purpose -- compensating the government for its $16,000 in costs. Id. at 449. Therefore, the Court held that the Double Jeopardy Clause barred the additional civil sanction after criminal punishment "to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at 448-49.*fn16

[132] Because Halper occupies such a central role in the punishment inquiry, a number of explanatory observations are in order. The first is a matter of semantics: a clear understanding of the terms "retributive," "deterrent," and "remedial" is critical to applying the Halper test. We therefore explain how we think the Supreme Court is using the terms; at least the reader will know how we are using them. Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing "justice." Deterrent measures serve as a threat of negative repercussions to discourage people from engaging in certain behavior. Remedial measures, on the other hand, seek to solve a problem, for instance by removing the likely perpetrators of future corruption instead of threatening them (De Veau), or compensating the government for costs incurred (Halper).

[133] Of course, as the cases point out, a measure could serve all three functions. For instance, putting someone in jail for a sex offense serves the retributive function of hurting that person, the deterrent purposes of convincing him and others not to engage in that behavior to avoid the adverse consequences, and the remedial purpose of keeping him away from others (at least outside the prison). Another complication is that measures can have one or more of these effects without having that purpose.

[134] With this lexicon in mind, we turn to an explication of the Halper calculus, which evaluates the proportionality of ends to means. To recapitulate, the Halper test is whether "a civil sanction that cannot be fairly said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment." Id. at 448. (emphasis added). The threshold question is thus whether a remedial purpose can explain the sanction. Only if the remedial purpose is insufficient to justify the measure, and one must resort also to retributive or deterrent justifications, does the measure become punitive. Only then can the measure "only be explained as also serving either retributive or deterrent purposes." To illustrate with a venerable statutory interpretation hypothetical, assume that someone is sent to the store in the snow for soupmeat. The trip can be explained solely by the remedial purpose of obtaining food, even though the trip through the cold could also serve retributive purposes. See id. at 447 n.7 ("[O]ur cases have acknowledged that for the defendant even remedial sanctions carry the sting of punishment."). It therefore qualifies as non-punishment under Halper. On the other hand, assume now that, without additional justification, the agent is sent without clothes. This additional aspect of the trip cannot be explained by the remedial purpose of obtaining food; this excursion can only be explained as partly serving retributive purposes. It therefore constitutes "punishment" under the Halper test.*fn17

[135] Halper thus contributes an important element to our analysis: it adds an objective inquiry to supplement the actual legislative purpose test of De Veau. "This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state." Id. at 447; see also id. at 453 (Kennedy, J., concurring) ("Today's holding, I would stress, constitutes an objective rule that is grounded in the nature of the sanction and the facts of the particular case.").*fn18

[136] By acknowledging that "civil" penalties may constitute punishment, Halper departs from the practice of placing talismanic significance on the legislative labels affixed to the disputed provision and searching for the frequently unknowable and nondispositive subjective intent of the legislative body: "[T]he labels 'criminal' and 'civil' are not of paramount importance. . . . The notion of punishment . . . cuts across the division between the civil and the criminal law." Id. at 447-48.*fn19

[137] The Halper objective ends-means test is a step down the road to limiting especially harsh effects, but still any "sting" could be permissible with a sufficient post hoc remedial "purpose." For example, the need for supper could explain the trip through the snow even if the temperature were below zero.

[138] 3. Austin v. United States: Objective Purpose through History

[139] Four years after Halper, in Austin v. United States, 113 S. Ct. 2801 (1993), the Court added yet another dimension to the punishment question: a focus on history. The Court held that civil forfeiture is "punishment" subject to the Excessive Fines Clause of the Eighth Amendment. The government had argued that forfeiture of a mobile home and body shop after the owner was convicted of a drug offense served the remedial purpose of compensating the government for its costs in investigating and prosecuting these offenses. In setting out the appropriate analysis, the Austin Court rescribed the key passage in Halper.

[140] We said in Halper that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term."

[141] Id. at 2806 (quoting Halper, 490 U.S. at 448).

[142] The Austin Court then took a different tack than the Halper Court: it applied the Halper test primarily by examining history, rather than proportionality. "We turn, then, to consider whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under [the statute in question] should be so understood today." Id. Examining history, it concluded that forfeiture has traditionally been regarded as punishment. Looking to the language and legislative history of the statute as a whole, the Court determined that these factors confirmed that the forfeiture statute served a punitive purpose, regardless of the proportionality of the particular forfeiture to the government's costs.*fn20 Id. at 2810-12. It therefore remanded for a determination whether the forfeiture, by being "excessive," violated the Eighth Amendment. Id.

[143] According to Austin, a measure that has historically served punitive purposes is punishment unless the text or legislative history shows a contrary purpose. Id. at 2810 ("We find nothing in these provisions or their legislative history to contradict the historical understanding of forfeiture as punishment."). Thus, even if a remedial purpose could fully explain a measure, thereby satisfying Halper, it will not pass Austin muster if it has historically been considered punishment and neither the text nor the legislative history contradicts this purpose. To draw again on our soupmeat hypothetical, sending someone out into the snow would be punishment if doing so was traditionally regarded as punitive and the sender did not make his plausible remedial purposes clear. This would be the case even though a remedial purpose -- fetching soupmeat -- could fully explain the action. Without a convincing counterrationale, something understood as punishment for so long simply "cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving retributive or deterrent purposes." Id. at 2806.

[144] The Austin objective purpose analysis also represents a move toward analyzing the effect of a provision in ascertaining whether it inflicts "punishment."*fn21 Though it speaks of legislative "purpose," the more likely and appropriate concern in a historical inquiry is the nature of the measure itself. Even the text and legislative history inquiry of Austin can be understood as going more to the nature of the provision itself rather than the subjective intent of the legislators.

[145] In concluding our discussion of Austin, we must question whether, as some courts have assumed, that case establishes that "punishment" for purposes of one constitutional protection is necessarily "punishment" for another. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219 (9th Cir. 1994) ("We believe that the only fair reading of Austin is that it resolves the 'punishment' issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause."), amended on denial of rehearing, 56 F.3d 41 (1995), cert. granted, 116 S. Ct. 763 (1996). This Court, noting the tension between Halper and Austin, has rejected the Ninth Circuit's reading of Austin as resolving all forfeitures under Section(s) 881 as presumptively punishment for purposes of the Double Jeopardy Clause. See United States v. $184,505.01 in U.S. Currency, 72 F.3d 1160 (3d Cir. 1995) (rejecting holding and reasoning of United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994)).*fn22

[146] Nevertheless, we believe that the historical methodology of Austin, as opposed to its broad language and holding, must be applicable to other punishment determinations: historical analysis is a staple of constitutional interpretation, including those guarantees dealing with "punishment." Cf. Nixon v. Administrator of General Services, 433 U.S. 425, 475 (1977) (examining history to determine whether access restrictions on presidential papers constituted "punishment" for Bill of Attainder Clause); Bell v. Wolfish, 441 U.S. 520, 590 n.23 (1979) (Stevens, J., dissenting) (The Supreme Court "has probably relied upon historical analysis more often than on any of the other objective factors . . . [to] determin[e] whether some government sanction is punitive.") (citing cases).

[147] 4. Department of Revenue v. Kurth Ranch: Objective Purpose
and Deterrence

[148] One year after deciding Austin, the Court added another wrinkle in Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994), announcing that the "no deterrent purpose" rule of Halper and Austin does not apply in all situations. Kurth Ranch held that Montana's Dangerous Drug Tax violated the Double Jeopardy Clause. The Montana law, which taxed illegal drugs and equipment at rates up to 400 percent, constituted "punishment" because it was "a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis." Id. at 1948. Because Montana levied this tax in a separate proceeding, after the defendants were tried and sentenced, this punishment violated the Double Jeopardy Clause. Id.

[149] Kurth Ranch further expanded on the historical inquiry begun in Austin. It distinguished the rule of Halper -- that any deterrent purpose makes a law punishment -- on the ground that fines and forfeitures "are readily characterized as sanctions" whereas taxes have typically served the salutary*fn23 purpose of raising revenue. Id. at 1946. Thus, the Court explained, a high tax rate and even a deterrent purpose would not automatically render a tax punitive. Id. at 1947.

[150] The Court then examined whether the particular tax at issue operated in the usual manner of most taxes. It differentiated among taxes with a pure revenue raising purpose, mixed-motive taxes imposed both to deter a disfavored activity and to raise revenue, and taxes imposed upon illegal activities. Pure revenue raising taxes are not "punishment," the Court said, because they are imposed despite their negative effect on the taxed activity. Id. Even mixed-motive taxes, such as those imposed on cigarette sales, are not "punishment" because the government wishes the activity to continue to the extent that its benefits -- including tax revenues -- outweigh its harms. However, the Court found that these salutary justifications "vanish when the taxed activity is completely forbidden, for the legitimate revenue-raising purpose that might support such a tax could be equally well served by increasing the fine imposed upon conviction." Id. The Court held that because a tax on illegal drugs did not operate in the usual manner, the historically non-punitive purposes of taxes could not insulate this tax from being considered "punishment." Id. at 1948.

[151] The main significance of the Kurth Ranch limitation is that, at least for measures that have historically served salutary functions, even some deterrent purpose will not render a measure "punishment": "We begin by noting that neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment." Id. at 1946 (emphasis added). In these cases, courts must examine whether the particular measure at issue operates in a "usual" manner consistent with its historically salutary or mixed purposes.*fn24

[152] Kurth Ranch also reemphasizes that at least some negative effect on the defendant does not convert a measure into "punishment." "We note[], however, that whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the 'sting of punishment.'" Id. at 1945 n.14 (citations omitted).

[153] 5. California Department of Corrections v. Morales: Effect

[154] Most recently, California Department of Corrections v. Morales, 115 S. Ct. 1597 (1995), contributed two additional elements to the "punishment" analysis: it further shifts the focus from a law's purpose to its effect, and it establishes that the appropriate "punishment" analysis is flexible and context-dependent. In Morales, the Court rejected an ex post facto challenge to a California statute that decreased a prisoner's entitlement to parole eligibility hearings. Under the law in effect at the time of the defendant's crime, he was entitled to parole suitability hearings every year after his initial parole determination. Id. at 1600. The California legislature subsequently amended the law to allow the review board to defer subsequent suitability hearings if (1) the prisoner has been convicted of "more than one offense which involves the taking of a life," and (2) the board "finds that it is not reasonable to expect that parole would be granted." Id. (citing Cal. Penal Code Ann. Section(s) 3041.5(b)(2) (West 1982)). After finding the defendant unsuitable for parole, the review board invoked this new provision to delay his next suitability hearing for three years. Id.

[155] As with the other cases discussed so far, the Court framed the question as whether the measure "increased the 'punishment' attached to respondent's crime." Id. at 1601. Rejecting the defendant's claim that this change constituted "punishment," the Court distinguished cases holding that legislative changes effectively increasing jail terms violated the Ex Post Facto Clause. Id. Unlike the measures in those cases, the Court said, the statute at issue "creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes." Id. at 1605. The likelihood of parole for those covered -- double murderers -- is "quite remote." Id. at 1603. Moreover, the "carefully tailored" authority of the board directs it to delay hearings only when it concludes that the hearings would be of no avail to the prisoner. Id. at 1604.

[156] Morales makes clear that a law can constitute unconstitutional "punishment" because of its effects. The Court leads off its discussion with the declaration that "[t]he legislation at issue here effects no change in the definition of respondent's crime." Id. at 1601. The opinion then spends the bulk of its analysis examining the effect of the legislative change on Morales. See id. at 1601-04. In doing so, it concedes that a measure effectively extending a sentence of imprisonment constitutes punishment, presumably regardless of the legislature's motivation. See id. at 1601 (citing and distinguishing Lindsey v. Washington, 301 U.S. 397 (1937); Miller v. Florida, 482 U.S. 423 (1987); Weaver v. Graham, 450 U.S. 24 (1981)). Morales concludes that the impact on the prisoner was not great enough to warrant finding an ex post facto violation. "We have long held," the Court said, "that the question of what legislative adjustments will be held to be of sufficient moment to transgress the constitutional prohibition must be a matter of degree." Id. at 1603 (internal quotations omitted) (emphasis added).*fn25

[157] Morales also highlights the flexibility of the punishment inquiry. It makes no reference or citation to De Veau, Halper, Austin, or Kurth Ranch at all. This could be read as a rejection of those standards in the ex post facto context, but we think that the better reading of this mere omission in Morales is that the appropriate "punishment" analysis depends on the context. The Court said as much: "[W]e have previously declined to articulate a single 'formula' for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition, and we have no occasion to do so here." Id. (citation omitted). Morales did not need to discuss Austin and its progeny because the facts in Morales involved imprisonment; the Court needed only to discuss and distinguish the most on-point cases of Lindsey, Weaver, and Miller, supra. And in doing so it looked at negative effects on Morales as "a matter of degree." Id.

[158] This examination of effects, like the Austin inquiry into history, is necessary to limit what would otherwise be the untenable results of the De Veau subjective purpose inquiry and the Halper means-end calculus. While even a substantial "sting" will not render a measure "punishment," see Halper, 490 U.S. at 447 n.7; Kurth Ranch, 114 S. Ct. at 1945 n.14, at some level the "sting" will be so sharp that it can only be considered punishment regardless of the legislators' subjective thoughts. For example, the legislature, with the purest heart(s), could extend the prison sentences of all previously convicted sex offenders for the sole reason of protecting potential future victims. It was simply not understood how dangerous they would be when released, the legislators could truthfully explain, and society would be safe only if sex offenders were kept behind bars. This remedial purpose would thus fully explain the continued incarceration; in the other terms of Halper, the continued imprisonment would be "rationally related" to the goal of protecting vulnerable citizens. But no Justice has ever voted to uphold a statute that retroactively increased the term of imprisonment for a past offense. See Miller v. Florida, 482 U.S. 423 (1987); Weaver v. Graham, 450 U.S. 24 (1981).

[159] 6. Kennedy v. Mendoza-Martinez: The Inquiry for the Nature of
Proceedings

[160] Finally, before attempting a synthesis, we must briefly discuss the test employed by the district court -- which was based on Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) -- and explain why we find its approach inappropriate. In that case, the Court held that divesting American citizenship for draft evasion or military desertion was "punishment" requiring the procedural protections of the Fifth and Sixth Amendments: "[T]he Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses." Id. at 167 (emphasis added).

[161] Mendoza-Martinez set forth a multi-factor analysis to determine whether a measure constitutes "punishment" triggering criminal process guarantees:

[162] [1] whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punitive, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment -- retribution and deterrence, [5] whether the burden to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, [7] whether it appears excessive in relation to the alternative purpose.

[163] Id. at 168-69. The district court applied this test in holding that notification under Megan's Law was unconstitutional.

[164] However, Supreme Court has made clear that the Mendoza-Martinez test is not controlling for the issues in this case. See Austin, 113 S. Ct. at 2806 n.6. Although Mendoza-Martinez used the word "punishment," Austin explains that the seven factors are properly used to determine whether a proceeding is "so punitive that the proceeding must reasonably be considered criminal" for purposes of Sixth Amendment trial protections. Id. "In addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in Mendoza-Martinez and Ward." Id.

[165] Amicus American Civil Liberties Union (ACLU) makes a clever argument on this point. The Supreme Court has said that Mendoza-Martinez does not control for determinations of whether a civil measure is "punishment." The ACLU contends that this is because the Mendoza-Martinez "test" -- which analyzes whether something is "so punitive" as to invoke criminal trial protections -- is harder to prove than the test for mere "punishment." Logically, if a measure is "so punitive" to satisfy the higher Mendoza-Martinez threshold, amicus argues, it should also be "punishment" for purposes of the challenges Artway brings, even if the reverse is not true.

[166] Nevertheless, like the New Jersey Supreme Court in Doe, 142 N.J. at 63-73, we think it wise to heed the Supreme Court's advice: Mendoza-Martinez is inapplicable outside the context of determining whether a proceeding is sufficiently criminal in nature to warrant criminal procedural protections of the Fifth and Sixth Amendments.*fn26 See Austin, 113 S. Ct. at 2806 n.6. Even when the Court has recited the Mendoza-Martinez factors, including in Mendoza-Martinez itself, it has played them down. See Mendoza-Martinez, 372 U.S. at 167 (declining to apply its own factors). It has consistently insisted that these factors, really a grab-bag of many individual tests, are neither controlling nor dispositive. See United States v. Ward, 448 U.S. 242, 249 (1980) ("[T]his list of considerations, while certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of similar questions and provides some guidance.") (emphasis added). Finally, we think that a seven factor balancing test -- with factors of unknown weight that "may often point in differing directions," Mendoza-Martinez, 372 U.S. at 169 -- is too indeterminate and unwieldy to provide much assistance to us here.*fn27

[167] B. Synthesizing the Jurisprudence: The Test(s)

[168] Synthesizing these cases, we derive the following analytical framework for this case. A measure must pass a three-prong analysis -- (1) actual purpose, (2) objective purpose, and (3) effect -- to constitute non-punishment. We must look at actual purpose to see "whether the legislative aim was to punish." See De Veau, 363 U.S. at 160. If the legislature intended Megan's Law to be "punishment," i.e., retribution was one of its actual purposes, then it must fail constitutional scrutiny. If, on the other hand, "the restriction of the individual comes about as a relevant incident to a regulation," the measure will pass this first prong. Id.

[169] If the legislature's actual purpose does not appear to be to punish, we look next to its "objective" purpose. This prong, in turn, has three subparts. First, can the law be explained solely by a remedial purpose? See Halper, 490 U.S. at 448. If not, it is "punishment." Second, even if some remedial purpose can fully explain the measure, does a historical analysis show that the measure has traditionally been regarded as punishment? See Austin, 113 S. Ct. at 2806. If so, and if the text or legislative history does not demonstrate that this measure is not punitive, it must be considered "punishment." Third, if the legislature did not intend a law to be retributive but did intend it to serve some mixture of deterrent and salutary purposes, we must determine (1) whether historically the deterrent purpose of such a law is a necessary complement to its salutary operation and (2) whether the measure under consideration operates in its "usual" manner, consistent with its historically mixed purposes. See Kurth Ranch, 114 S. Ct. at 1946-48. Unless the partially deterrent measure meets both of these criteria, it is "punishment." If the measure meets both of these criteria and the deterrent purpose does not overwhelm the salutary purpose, it is permissible under Kurth Ranch.

[170] Finally, if the purpose tests are satisfied, we must then turn to the effects of the measure. If the negative repercussions -- regardless of how they are justified -- are great enough, the measure must be considered punishment. See Morales, 115 S. Ct. at 1603. This inquiry, guided by the facts of decided cases, is necessarily one "of degree." See id.

[171] We have thus attempted to harmonize a body of doctrine that has caused much disagreement in the federal and state courts. We realize, however, that our synthesis is by no means perfect. Only the Supreme Court knows where all the pieces belong. The Court will, we hope, provide more guidance with its decision in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), amended on denial of rehearing, 56 F.3d 41 (1995), cert. granted, 116 S. Ct. 763 (1996), or some other case in the near future. With this qualification in mind, we turn to the application of this test to Megan's Law.

[172] C. The Registration Provisions of Megan's Law Evaluated

[173] The registration provisions of Megan's Law are relatively simple. They require "repetitive and compulsive" sex offenders who have completed a sentence for designated crimes to register with local law enforcement. Because Artway meets these requirements, he must register if he returns to New Jersey. In registering, Artway must provide information including descriptions of his appearance, his genetic markers, and his residence and work place to the chief law enforcement officer of the municipality in which he chooses to reside. He must periodically confirm his residence and notify law enforcement if he moves. Unlike the notification provisions of Megan's Law -- which would require notice of Artway's crime, his description, his whereabouts, and, critically, the State's assessment of his future dangerousness to members of Artway's community -- registration provides this information only to law enforcement agencies. The information is not open to public inspection.

[174] 1. Actual Purpose

[175] The first prong of our test asks whether the legislature's actual purpose was to punish. See De Veau, 363 U.S. at 160. The only indication of actual legislative intent regarding the enacted version of Megan's Law is the following statement of purpose in the legislation itself:

[176] 1. The Legislature finds and declares:

[177] 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.

[178] 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.

[179] N.J.S.A. 2C:7-1. This passage suggests that the legislature's actual purpose was not punishment. It speaks of "identify[ing] and alert[ing] the public" to enhance safety and "preventing and promptly resolving incidents." Protecting the public and preventing crimes are the types of purposes De Veau found "regulatory" and not punitive. 363 U.S. at 160.

[180] The only other legislative history, a statement in the bill as introduced in the New Jersey Senate, buttresses the conclusion that the legislature's intent was not to punish. "The danger posed by the presence of a sex offender who has committed violent acts against children requires a system of notification to protect the public safety and welfare of the community." Senate Bill No. 14 (introduced September 12, 1994). The section literally speaks of "notification," but if the legislature's actual purpose in notification was remedial, it is hard to imagine that its purpose in the predicate and less harsh step of registration was punitive.

[181] The circumstances of this enactment, which generated such sparse legislative history, gives us pause. Megan's Law was rushed to the floor as an extraordinary measure, skipping committee consideration and debate entirely. It is just these "sudden and strong passions to which men are exposed" that the Framers designed the Ex Post Facto and Bill of Attainder Clauses to protect against. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38 (1810). Nevertheless, the evidence we do have of actual legislative intent points to a non-punitive purpose.

[182] 2. Objective Purpose

[183] The objective purpose prong asks three related questions. First, we must discern whether the law can be explained solely by a remedial purpose. See Halper, 490 U.S. at 448. Registration is a common and long-standing regulatory technique with a remedial purpose. See, e.g., New York v. Zimmerman, 278 U.S. 63 (1928) (registration of membership corporations and associations permissible); United States v. Kahriger, 345 U.S. 22 (1953) (registration of professional gamblers permissible); United States v. Harriss, 347 U.S. 612 (1954) (registration of lobbyists permissible).*fn28 One need look no further than the Selective Service to find a non-punitive registration system for individuals. See Gillette v. United States, 401 U.S. 437 (1971) (sustaining selective service system against claim that it violated free exercise).

[184] Here, the solely remedial purpose of helping law enforcement agencies keep tabs on these offenders fully explains requiring certain sex offenders to register. Registration may allow officers to prevent future crimes by intervening in dangerous situations. Like the agent who must endure the snow to fetch the soupmeat, the registrant may face some unpleasantness from having to register and update his registration. But the remedial purpose of knowing the whereabouts of sex offenders fully explains the registration provision just as the need for dinner fully explains the trip out into the night. And the means chosen -- registration and law enforcement notification only -- is not excessive in any way. Registration, therefore, is certainly "reasonably related" to a legitimate goal: allowing law enforcement to stay vigilant against possible re-abuse.

[185] Second, we must consider history, and registration does not resemble punishment through a historical analysis. Artway spends much of his brief chronicling the historical understanding of public shame as punishment. "Early forms of punishment contained strong elements of gross public humiliation. . . . Physical punishments . . . were carried out publicly in ceremonial fashion [because it was] intended that the victim should be humiliated, for degradation figured largely in all contemporary theories of punishment." Jon A. Brilliant, Note, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357, 1360-61 (internal quotations omitted); see also Ex Parte Wilson, 114 U.S. 417, 428 (1885) (cataloguing "punishments that consist principally in their ignominy" as set forth in Blackstone's Commentaries); Crime and Punishment in American History 40 (explaining that humiliating punishments were historically intended to serve as deterrents).

[186] In particular, Artway argues that Megan's Law is analogous to that most famous badge of punishment: the Scarlet Letter. "There can be no outrage . . . against our common nature,--whatever be the delinquencies of the individual,--no outrage more flagrant than to forbid the culprit to hide his face for shame; as it was the essence of this punishment to do." Nathaniel Hawthorne, The Scarlet Letter 63-64 (Random House 1950) (1850). Like the Scarlet Letter, Artway contends, Megan's Law results in public ostracism and opprobrium: it would subject him to potential vigilantism, impair his opportunities to work, and damage his abilities to develop and maintain stable relationships. In his submission, its "remedial" purpose -- to protect the public from him -- seeks to brand him as an outcast. Such a shunning by one's community is the essence of historical punishment, Artway contends.

[187] Artway's argument has considerable force, but the notification issue is not before us. We evaluate only registration, and that provision bears little resemblance to the Scarlet Letter. Registration simply requires Artway to provide a package of information to local law enforcement; registration does not involve public notification. Without this public element, Artway's analogy fails. The Scarlet Letter and other punishments of "shame" and "ignominy" rely on the disgrace of an individual before his community. The act of registering with a discrete government entity, which is not authorized to release that information to the community at large (except in emergencies), cannot be compared to public humiliation. The officers who constitute local law enforcement, even if they are from Artway's area, would constitute only a de minimis portion of that community. And their ready access to criminal history information is an integral part of their jobs, rather than an extraordinary event likely to trigger opprobrium.

[188] Artway relies on Weems v. United States, 217 U.S. 349 (1910), to establish that even registration is "punishment." It does not aid his case. Weems struck down as cruel and unusual punishment a Philippine law that imposed horrible punishments for falsification of public documents. Id. at 363. Any false entry, even if unintentional and with no ill effect, triggered the "cadenza temporal." Id. This punishment imposed hard and painful labor for a period from twelve years and a day to twenty years, shackled at the wrist and the ankle, with no access to family or loved ones, the extinguishment of civil rights while serving the sentence, perpetual disqualification from political rights, such as holding office, and "surveillance." Id. at 363-64.

[189] The Weems Court confronted a different issue from the one in this case. The Court held that this harsh punishment as a whole was cruel and unusual for the relatively minor offense involved. Id. at 382. And the "surveillance" statute that made up a minor part of the total punishment differed from Megan's Law in at least one significant respect: the unfortunate offender in Weems was required to obtain written permission before he could move. See id. at 363. Given this larger context, the Court's dictum about the harshness of "surveillance" hardly establishes that registration is "punishment." Finally, because registration historically is a regulatory technique with a salutary purpose, any incidental purpose to deter future offenses by past sex offenders will not invalidate it under Kurth Ranch.

[190] 3. Effects

[191] The final prong examines whether the effects -- or "sting" -- of a measure is so harsh "as a matter of degree" that it constitutes "punishment." See Morales, 115 S. Ct. at 1603. The caselaw does not tell us where the line falls that divides permissible from impermissible effects, but we know the "matter of degree" is somewhere between imprisonment and revocation of citizenship on the one hand, and loss of a profession or benefits on the other. Compare Miller v. Florida, 482 U.S. 423 (1987) (increased incarceration is "punishment") and Trop v. Dulles, 356 U.S. 86 (1958) (revoking citizenship is "punishment") with De Veau v. Braisted, 363 U.S. 144 (1960) (forbidding work as union official not "punishment"); Hawker v. New York, 170 U.S. 189 (1898) (revoking medical license is not "punishment") and Flemming v. Nestor, 363 U.S. 603 (1960) (terminating social security benefits not "punishment").*fn29

[192] Artway marshals strong reasons that notification would have devastating effects. In addition to the ostracism that is part of its very design, notification subjects him to possible vigilante reprisals and loss of employment. And unlike the mere fact of his past conviction, which might be learned from an employment questionnaire or public records, notification under Megan's Law features the State's determination -- based overwhelmingly on past conduct -- that the prior offender is a future danger to the community.*fn30 We reemphasize, however, that as forceful as Artway's arguments seem to be, the issue of notification is not ripe at this time.

[193] On the other hand, registration, the only phase of Megan's Law upon which we may pass judgment, has little impact. Most of the information is already available in the public record. It is disclosed only to law enforcement, which has ready access to this criminal history. And, unlike notification, the information contains no assessment by the State that Artway is a future danger. Therefore, this impact, even coupled with the registrant's inevitable kowtow to law enforcement officials, cannot be said to have an effect so draconian that it constitutes "punishment" in any way approaching incarceration. It is less harsh than losing a profession or benefits.

[194] While there doubtless are some unpleasant consequences of registration -- it is possible that police will leak information or engage in official harassment -- we must presume that law enforcement will obey the law. Moreover, Artway, who of course bears the burden of proof to invalidate a statute on constitutional grounds, presents no evidence in this record of dire consequences flowing from registration.

[195] D. Summary of Registration Claims

[196] Analyzing the registration provisions of Megan's Law under the (1) actual purpose, (2) objective purpose, and (3) effects prongs of our "punishment" test, we conclude that registration under Megan's Law does not constitute "punishment" under any measure of the term. Hence, it does not offend the Ex Post Facto, Double Jeopardy, or Bill of Attainder Clauses. Therefore, although our analysis differs from that employed by the district court and the Supreme Court of New Jersey, we agree with their conclusion regarding registration.

[197] VI. EQUAL PROTECTION

[198] Turning to the remainder of Artway's claims, we begin by rejecting his argument that Megan's Law violates equal protection. Artway contends that Megan's Law's distinction between "compulsive and repetitive" sex offenders and other sex offenders is "arbitrary and discriminatory." However, the Equal Protection Clause does not forbid all discrimination, and the distinctions made by Megan's Law are not arbitrary.

[199] The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV Section(s) 1. This is not a command that all persons be treated alike but, rather, "a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (emphasis added). The level of scrutiny applied to ensure that classifications comply with this guarantee differs depending on the nature of the classification. Classifications involving suspect or quasi-suspect class, or impacting certain fundamental constitutional rights, are subject to heightened scrutiny. Id. Other classifications, however, need only be rationally related to a legitimate government goal. See Chapman v. United States, 500 U.S. 453, 465 (1991) (applying rational basis test to classification based on nature of offense).

[200] Megan's Law requires persons who have committed their offense and completed all incarceration, probation and parole by the date the Law was enacted to register only if they were found to be "repetitive and compulsive" at sentencing. The challenged category -- "repetitive and compulsive sex offenders" -- is not a suspect or quasi-suspect class. See Cleburne, 473 U.S. at 439 (listing classes receiving heightened scrutiny as race, alienage, national origin, and sex). It also does not implicate a fundamental constitutional right for which the Supreme Court has granted heightened equal protection scrutiny. See Chapman v. United States, 500 U.S. at 465 (applying rational basis test to classification based on nature of offense). This classification, therefore, "is subject to the general rule that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne, 473 U.S. at 440 (citing cases).

[201] Registration easily satisfies this requirement. Protecting vulnerable individuals from sexual offenses is certainly a legitimate state interest. Requiring registration of convicted sex offenders found to be "repetitive and compulsive," as opposed to other sex offenders or the rest of the population, is rationally related to that goal. See, e.g., State v. Wingler, 25 N.J. 161, 176 (1957) (holding that classification of repetitive and compulsive sex offenders "has a rational basis"); Mahfouz v. Lockhart, 826 F.2d 791, 794 (8th Cir. 1987) (applying rational basis test to hold that Arkansas statute excluding sex offenders from work/study release program for inmates did not violate equal protection). The legislature could have rationally concluded that sex offenders who had completed all incarceration, probation and parole had a good chance of reintegrating into their communities and therefore posed a lower risk. Also, realizing that people who had rejoined society had the most to lose, the legislature could have rationally decided to require only "repetitive and compulsive" offenders in this category to register. Thus, this classification does not offend equal protection.

[202] Artway's reliance on Foucha v. Illinois, 504 U.S. 71 (1992), as establishing heightened scrutiny in this case is misplaced. Foucha held that a state statute allowing continued confinement of an individual acquitted by reason of insanity, even when that person had ceased to be mentally ill, violated due process. Id. at 78-83. A plurality indicated that doing so was also an equal protection violation. Id. at 84-85. But, unlike Megan's Law, the statute in Foucha denied those subject to it of their physical liberty, which the Court has recognized as a fundamental constitutional right triggering heightened scrutiny. See United States v. Salerno, 481 U.S. 739, 750 (1987).*fn31

[203] VII. DUE PROCESS

[204] We also reject Artway's contention that Megan's Law denies due process by classifying former offenders on the basis of "repetitive and compulsive behavior." This argument has two subparts. First, Artway argues that requiring him to register on the basis of the "repetitive and compulsive" finding violates due process because the finding was unreliable when made. The supposed unreliability stems from an alleged lack of training of the State employees making these determinations. Second, he contends, holding him accountable for this determination violates due process because he did not have notice at the time of sentencing of the negative implications of this finding. Artway admits that he was advised of his right to contest the "repetitive and compulsive" finding, but contends that such a finding was in his interest because it was his only hope for obtaining treatment and being placed in a treatment center, safe from the general prison population.

[205] Although he does not spell out why using the "repetitive and compulsive" finding against him would amount to a due process deprivation, we will assume he means that such actions would be "fundamentally unfair." Cf. Daniel v. Williams, 474 U.S. 327, 341 (1986) (Stevens, J., concurring) ("Petitioners must show that [the state procedures] contain a defect so serious that we can characterize the procedures as fundamentally unfair, a defect so basic that we are forced to conclude that the deprivation occurred without due process.").

[206] But even this argument has no merit. We need not reach the issue of the fairness -- whether because of unreliability or lack of incentive to oppose -- of the "repetitive and compulsive" finding. One must have an interest in life, liberty, or property before due process protections are triggered. U.S. Const. amend. IV, Section(s) 1; see also Goldberg v. Kelly, 397 U.S. 254 (1970). Artway has no such interest in the reputational damage, if any, that accompanies registration. See Doe, 142 N.J. at 103-06; Paul v. Davis, 424 U.S. 693, 701 (holding mere damage to reputation insufficient to trigger due process); Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987) (holding harm to reputation and financial interests insufficient to confer liberty interest). And at this stage, the "repetitive and compulsive" finding subjects him to no more than registration.*fn32

[207] Artway may have a liberty interest in notification under state law triggering federal due process protections. See Doe, 142 N.J. at 103-106. But, as explained supra Part IV, his challenges to notification are not yet ripe.

[208] VIII. UNCONSTITUTIONAL VAGUENESS

[209] Artway next argues that Megan's Law is unconstitutionally vague because it forces him to "guess" whether he is covered by the Act. We disagree. Due process requires only that a penal statute give persons of "common intelligence" fair notice about "what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). While Artway appears to style his complaint as a facial challenge, he has standing only to raise the vagueness of the Act as it applies to him unless he can prove that the Act is vague in substantially all its applications. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982); United States v. Powell, 423 U.S. 87, 92 (1975). Because Artway does not, and cannot, establish that Megan's Law is vague in substantially all its applications, we deal only with the provisions of Megan's Law as they apply to him.*fn33

[210] Under the relevant section of Megan's Law, a person who has been convicted of a "sex offense" must register. Paragraph (1) of that section defines "sex offense" to include "aggravated sexual assault, sexual assault . . . if the court found that the offender's conduct was characterized by a pattern of repetitive and compulsive behavior." Paragraph (3) of that section further defines "sex offense" to include "a sentence on the basis of criteria similar to the criteria set forth in paragraph (1) . . . entered or imposed under the laws of the United States, this state or another state." N.J. Stat. Ann. 2c:7-1b. (emphasis added).

[211] The crux of Artway's argument is that the "sentenced on the basis of criteria similar to" language violates due process by not specifying the predicate crimes more clearly. But Artway's duty to register is patent under the Act. Megan's Law requires registration for those sentenced under "similar criteria" to "aggravated sexual assault, sexual assault . . . if the court found that the offender's conduct was characterized by a pattern of repetitive and compulsive behavior." N.J. Stat. Ann. 2c:7-1b. Thus, Artway must register if he was sentenced for engaging in (1) "sexual assault" and (2) "repetitive and compulsive" behavior.

[212] Artway argues (in so many words) that, because the crime of sodomy did not require an element of violence at the time he was convicted, it is unclear whether he falls under the "sexual assault" requirement. The statutory elements of the crime, however, are a red herring. Artway was sentenced under New Jersey's prior sex offender law, which required a finding of both "violence" and "repetitive and compulsive behavior." In particular, the sentencing judge made a finding at sentencing that Artway used violence to perpetrate a sexual act. See Artway v. Pallone, 672 F.2d 1168, 1170-71 & n.3 (3d Cir. 1982) (describing crime). This is plainly sexual assault. The sentencing judge also found that Artway had engaged in "repetitive and compulsive" behavior. See id. Thus, Artway received "a sentence on the basis of criteria" similar to both elements of paragraph (1). Because the statute facially applies to Artway, he could reasonably know of his duty to register.

[213] Artway's citation to Hluchan v. Fauver, 482 F. Supp. 1155 (D.N.J. 1980), is of no avail. Even if we found the reasoning of Fauver persuasive, it is inapposite. That case involved an equal protection challenge to regulations that classified prisoners for purpose of minimum custody eligibility. Id. at 1156. The rationality of the open-ended regulations was at issue, not the fair notice question of this vagueness claim (a due process challenge). Moreover, the regulation in Fauver was objectionable for three reasons not present in this case. First, unlike Megan's Law, the Fauver regulations initially left "sex offense" completely undefined (thus undermining its rationality). Id. at 1157. Second, the regulations contained a provision not present in Megan's Law for which the court was unable to "determine the meaning." Id. Finally, the incorporation of "sex offenses" from other states presented an equal protection problem, the court thought, because "the danger exists that individuals convicted of the same criminal conduct in different jurisdictions will be treated differently." Id. We doubt the soundness of finding equal protection violations on the basis of "dangers" that have not come to pass but, in any event, Artway was convicted under the laws of the State of New Jersey and faces no problem with the applicability of laws of other states.

[214] IX. PULLMAN ABSTENTION

[215] Finally, we conclude that the district court did not err in refusing to abstain under Railroad Commission v. Pullman, 312 U.S. 496 (1941). Pullman abstention allows federal courts, in rare cases, to abstain from deciding a case if a state court's resolution of a state law issue would obviate the need for the federal court to reach a federal constitutional issue. The doctrine attempts to avoid constitutional questions and promote principles of federalism. However, Pullman abstention "is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it [which] can be justified . . . only in exceptional circumstances." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (quoting Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)).

[216] Under our jurisprudence, a district court must make three findings in order to justify the Pullman exception to the general rule that federal courts must hear cases properly brought within their jurisdiction. The Court must find (1) that uncertain issues of state law underlie the federal constitutional claims brought in the district court; (2) that the state law issues are amenable to a state court interpretation that would obviate the need for, or substantially narrow, adjudication of the federal claim; and (3) that important state policies would be disrupted through a federal court's erroneous construction of state law. See Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631 (3d Cir. 1991). If all three factors are present, the federal court must then consider whether abstention is appropriate by weighing such factors as the availability of an adequate state remedy, the length of time the litigation has been pending, and the impact of delay on the litigants. Id. at 633.

[217] Abstention is not warranted here. First, although a state law issue -- whether Megan's Law applies to him -- underlies the federal constitutional claim, this issue is not "uncertain" because Megan's Law clearly applies to him. See Part VIII supra. Second, because the applicability of Megan's Law to Artway is patent, this issue is not "amenable" to a state law determination that would obviate the need for a federal constitutional determination. The Supreme Court has used various formulations to describe "amenability,"*fn34 but no matter which we adopt, the lack of uncertainty about the state law issue precludes satisfaction of this prong: a certain issue is not "amenable" to a contrary interpretation. The third factor -- whether an improper interpretation of state law would disrupt important state policies -- favors the state because the scope of Megan's Law is an important state issue.*fn35 Nevertheless, two of the three essential factors for abstention are lacking even before we come to the weighing factors; hence, Pullman abstention is inappropriate.

[218] X. CONCLUSION

[219] For the foregoing reasons, we hold that the lion's share of Artway's claims are unripe. In particular, we will dismiss as unripe Artway's claims (1) that the notification provisions of Megan's Law violate the Ex Post Facto, Bill of Attainder, or Double Jeopardy Clauses of the U.S. Constitution; and (2) that the State must provide Artway more process for receiving notice of and challenging the notification determination. We also hold unripe the claim of the Chief of Police of Woodbridge Township that state immunity bars his "potential liability" for a hypothetical Section(s) 1983 action seeking damages.

[220] With regard to Artway's claims that are currently justiciable, we hold that (1) the registration component of Megan's Law does not violate the Ex Post Facto, Double Jeopardy or Bill of Attainder Clauses as impermissible "punishment"; (2) the "repetitive and compulsive" classification of Megan's Law does not offend equal protection; (3) the alleged unreliability and unfairness of Artway's "repetitive and compulsive" determination does not violate due process; and (4) Megan's Law is not unconstitutionally vague as applied to him. Finally, we hold that the district court did not err in refusing to abstain under Pullman.

[221] The judgment of the district court will be vacated insofar as it enjoins the enforcement of Tier 2 and Tier 3 notification under Megan's Law, and affirmed insofar as it holds the registration provisions (including Tier 1) of the Law constitutional. The parties shall bear their own costs.

[222] SHADUR, Senior District Judge, concurring:

[223] At the outset I should emphasize that this brief concurrence reflects no disagreement with the results that have been announced in Judge Becker's detailed and masterful treatment of the enormously complex subject matter that we have been called upon to deal with here. To the contrary, both the ultimate resolution of each substantive issue posed by the record before us and (with the limited exception set out here) the reasoning by which those results have been reached are the subject of our panel's unanimous agreement. Instead I write only to express the view (which is dealt with in somewhat different form in n.16 of the majority opinion) that United States v. Halper does not play the precise role that the majority's exposition suggests in analyzing the concept of "punishment." This is not at all a matter of "[c]abining Halper to monetary penalties," as n.24 of the majority opinion describes the First Circuit's recent opinion in United States v. Stoller. Any efforts of the lower courts in the federal system to interpret the sometimes Delphic pronouncements from the Supreme Court can on occasion resemble (to mix metaphors) the divination of entrails. When two such able and respected judges as Judge Becker and the First Circuit's Judge Bruce Selya come to such differing conclusions as to the meaning and significance of a single Supreme Court opinion in the type of synthesis that each of them has attempted in the course of defining "punishment" for double jeopardy purposes, that very difference creates a strong implication that the oracular message from the ultimate authority ranks high in the scale of obscurity. With some trepidation, I should like to add a few comments in a further effort to explicate Halper.

[224] It is worth repeating the two consecutive sentences in Halper, 490 U.S. at 448-49 (citation omitted) that have the puzzling appearance of looking in opposite directions, based on their seemingly odd usage and placement of the word "only" in each of the sentences: From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

[225] In surface terms that usage appears to leave a gap, a no-man's land, with the first of the sentences saying that a civil sanction is punitive (and is hence outlawed on double jeopardy principles) unless it serves only a remedial purpose, and the second saying that a civil sanction is impermissible for double jeopardy purposes solely to the extent that it serves only deterrent or retributive functions rather than being remedial. But I agree with the majority's n.16 that those sentences can be reconciled--though to me the critical element of that reconciliation is in the phrase "to the extent that," which I have therefore also underscored for emphasis. Although the difference may be subtle, it is I believe significant. Let me amplify.

[226] In the process of synthesizing Halper and Kurth Ranch (which I agree represents the proper approach), it seems to me to be critical to recognize the context in which the Halper court spoke. As already stated, Halper did deal with a monetary penalty. Although that is not of course a basis for restricting the case's significance solely to such monetary types of "punishment" or non-"punishment," it does help to explain the significance of the "to the extent" language in the earlier-quoted excerpt from Halper. If for example a $100,000 forfeiture of property of a previously-convicted defendant is imposed, one "that does not remotely approximate the Government's damages and actual costs, [so that] rough justice becomes clear injustice" (Halper, 490 US. at 446), it runs afoul of the Double Jeopardy Clause precisely because of that excessiveness. That is, such excessiveness triggers the Halper language that double jeopardy is involved "to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution" (id. at 449).

[227] Just so with Judge Becker's soupmeat analogy. If a previously-convicted defendant is sent out for soupmeat armed with appropriate protection against the elements (snow and cold), no double jeopardy concerns are implicated. But the answer is different when the circumstances are changed to include the unjustified deprivation of warm clothing and boots. Why? Because the previously-convicted person "may not be subjected to [that] additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution" (id.).

[228] Where I believe the majority analysis presents difficulties is not in the area of monetary sanctions or in the hypothetical situation in which a sanction may be carved up (like soupmeat?) into discrete elements, but in extending that approach to situations in which the second sanction does not lend itself to such a convenient parsing out or splitting (in the manner that is true both of a monetary penalty, part of which can be labeled as remedial and part of which may exceed what is needed for remedial purposes, and of the soupmeat example, which can also readily be separated into different components of the sanction). It is in that respect that I respectfully suggest that the first quoted sentence from Halper cannot be isolated from the next one--that Halper should not be perceived as a pronouncement that as to every type of sanction, "punishment" (with its potential effect for double jeopardy purposes) is involved unless the sanction can be explained entirely without ascribing to it some retributive or deterrent component.

[229] As the majority opinion correctly says at page 65: Here, the solely remedial purpose of helping law enforcement agencies keep tabs on these offenders fully explains requiring certain sex offenders to register.

[230] And it is equally correct to say that this "solely remedial" characterization is not altered by the fact that Artway may legitimately perceive registration as imposing deterrent or retributive consequences on him (as Halper itself states, 490 U.S. at 447 n.7, "On the contrary, our cases have acknowledged that for the defendant even remedial sanctions carry the sting of punishment").

[231] But having said all of this, I again stress that it is unnecessary to our unanimous conclusion about the validity of the registration provisions of Megan's Law--a conclusion that follows from the just-stated determination that those provisions are purely remedial--to go on to decide what our conclusion would have been if we had determined that they were partially retributive or deterrent as well. It is worth remembering that Halper itself contained a caveat against universalizing the rule that it announced. Here is what it said later down the page from the language quoted both by the majority opinion and in this concurrence (490 U.S. at 449-50): What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment.

[232] On the other hand, I certainly agree with the majority that Halper contributes importantly to the total analysis, both by its acknowledgement that "civil" penalties may constitute punishment (id. at 447-48) and by adding the concept of objective inquiry to that analysis (id. at 447). So this concurrence concludes as it began, with a total joinder in the conclusions reached in Judge Becker's fine opinion for the majority, and with a departure from that opinion's reasoning only in terms of voicing a suggested caveat--a caution against ascribing an excessive degree of importance to one portion of the language quoted from Halper in the effort to forge a total synthesis of the Supreme Court's jurisprudence for all future double jeopardy analyses.

***** BEGIN FOOTNOTE(S) HERE *****

[233] *fn* Hon. Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.

[234] *fn1 The victim testified that Artway and two friends took her to a wooded area, stripped her, tied her to a tree, urinated on her, forced her to pose nude for photographs, and sodomized her for over an hour. See id.

[235] *fn2 The complete list of categories is as follows: (1) Degree of Force; (2) Degree of Contact; (3) Age of Victim; (4) Victim Selection; (5) Number of Offenses/Victims; (6) Duration of Offensive Behavior; (7) Length of Time Since Last Offense; (8) History of Anti-Social Acts; (9) Response to Treatment; (10) Substance Abuse; (11) Therapeutic Support; (12) Residential Support; and (13) Employment/Educational Stability. Id.

[236] *fn3 It also included To Kill a Mockingbird and Plato's Dialogues in its discussion of what constitutes "punishment."

[237] *fn4 Because Artway has never submitted to even the registration provisions of Megan's Law, the flier is not the result of notification. Rather, Artway's notoriety seems to have flowed from this litigation.

[238] *fn5 One aspect of the propriety of Pullman abstention -- i.e., as to the question of disruption of important state policies -- is reviewed for abuse of discretion. See Biegenwald v. Fauver, 882 F.2d 748, 750-51 (3d Cir. 1989). However, this distinction plays no part in our analysis. See infra note 34 and accompanying text.

[239] *fn6 Mootness also contains four major exceptions: (1) wrongs that have collateral consequences, see Sibron v. New York, 392 U.S. 40, 53 (1968); (2) wrongs that are capable of repetition yet evading review, see Roe v. Wade, 410 U.S. 113 (1973); (3) wrongs that are voluntarily ceased but could resume, see United States v. W.T. Grant Co., 345 U.S. 629 (1953); and (4) wrongs to a class that continue though those to the named plaintiffs do not, see Sosna v. Iowa, 419 U.S. 393 (1975). These exceptions are not directly applicable here, but they further demonstrate how mootness doctrine has diverged from standing doctrine to allow courts to decide real controversies in the face of changing circumstances.

[240] *fn7 We have sometimes employed a three-part test for ripeness in the declaratory judgment context: (1) adversity of interest; (2) conclusivity; (3) utility. See Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990). However, the Supreme Court's two-part test is of course still good law, and we continue to use that formulation as well. See, e.g., New Hanover Tp. v. United States Army Corps of Engineers, 992 F.2d 470 (3d Cir. 1993). We deem the two-part analysis more apt for this case.

[241] *fn8 Similarly, we cannot rule on the claim of the Chief of Police of Woodbridge Township that state immunity bars his "potential liability" for a hypothetical Section(s) 1983 action seeking damages. Artway has filed no such suit. To the extent the Police Chief's defense relates to the attorney's fees Artway is seeking, the Eleventh Amendment has no application to the award of attorneys fees under 42 U.S.C. Section(s) 1988. See Missouri v. Jenkins, 491 U.S. 274 (1989).

[242] *fn9 We recognize that some of the critical factual information, especially the effects of the proposed notification on the registrant, will be difficult to chronicle. In most cases, we assume that registrants slated for notification will seek to enjoin the notification before it happens. The actual consequences of notification on that person, of course, cannot be known at that point. Therefore, we wish to emphasize that our holding that this case is not ripe does not mean that all pre-notification challenges will be unripe. Where the fact of notification is not speculative (because the state has expressed its intent to notify), the district court enjoys flexibility to collect appropriate evidence so that the issue may be fit for judicial review. District courts may see fit to admit a broad array of evidence, including but not limited to (1) threats or actions against the registrant triggered by notice from channels other than Megan's Law, (2) threats or actions against similarly situated registrants, especially those undergoing notification, and (3) studies of the effects of Megan's Law or similar notification laws. We do not suggest, however, that evidence of community reaction is mandatory before a notification challenge will be fit for judicial review.

[243] *fn10 In addition to telling Woodbridge residents to "BEWARE," the flier suggests that anti-registrant leafletting will be a regular result of notification:

[244] ATTENTION: Two time convicted rapist Artway, a 49 year old resident of the Avenel section of Woodbridge has successfully challenged Megan's Law. After serving an 18 year sentence for sodomy. [sic] He cannot be made the subject of community notification. Mr. Artway said "ya-hoo, I jump up in the air and click my heels. I can now move to another area -- in other words I can retreat -- and no fliers will follow me."

[245] (A247). The flier concludes by urging Woodbridge residents to "keep an eye on Alexander Artway (track his movements)" and requests anonymous "information about his whereabouts." Id.

[246] The State of Washington study reports that, of the 176 sex offenders who were subject to notification in that state between 1990 and 1993, 14 have suffered acts of harassment. These incidents include the following: rock and egg throwing, threats of arson, picketing, posting warning fliers throughout the community, and spray painting slogans like "Die, baby raper" and "Move or die" on the notification subject's home and personal property. (A178). In half of the 14 cases, the harassment also extended to members of the offender's family, or to people living with the offender.

[247] *fn11 Although forty states have sex offender registration statutes, twenty-nine of these laws have been passed since 1990. See Simeon Schopf, "Megan's Law": Community Notification and the Constitution, 29 Colum. J.L. & Soc. Probs. 117, 120 (1995). Moreover, of the minority of states whose laws permit community notification, New Jersey's is the most far-reaching. See id.; Doe, 142 N.J. at 41 n.9.

[248] *fn12 Furthermore, the state court has not yet interpreted this standard. To the extent state court interpretation would make the standard comport with due process, abstention would probably be appropriate even if the issue were ripe. See Railroad Commission v. Pullman, 312 U.S. 496 (1941). We assume that Artway will be entitled to notice, since his whereabouts seem to be known, so long as he does not pose an immediate danger.

[249] *fn13 Artway's contention at oral argument that his challenge is both facial and as-applied does nothing to overcome his ripeness problem. In the limited context of the First Amendment, a facial challenge allows a litigant to argue that a law is unconstitutional -- in a set of circumstances not necessarily present in his own case -- on the basis of its "overbreadth." See United States v. Salerno, 481 U.S. 739, 745 (1987). Artway's challenge obviously does not rely on the First Amendment. To make a successful facial challenge in a non-First Amendment context, a litigant "must establish that no set of circumstances exists under which the Act would be valid." Id. Artway has made no contention, let alone proved it, that notification under Megan's Law would be unconstitutional under all circumstances. For example, his "punishment" claims, which all rely on some notion of retroactivity, would fail if the sex offender committed his crime after Megan's Law was enacted. In any event, a facial challenge does not -- and cannot -- excuse basic Article III case or controversy requirements, such as that the plaintiff actually be aggrieved by the challenged statute.

[250] *fn14 Underlining the importance of these clauses in the eyes of the Framers, the Bill of Attainder and Ex Post Facto Clauses apply to both the federal government and the states by the original terms of the Constitution. See U.S. Const. art. I, Section(s) 9, cl. 3 ("No Bill of Attainder or ex post facto law shall be passed."); U.S. Const. art. I, Section(s) 10 ("No State shall . . . pass any Bill of Attainder [or] ex post facto Law . . . .").

[251] *fn15 While even Artway's ex post facto claim fails, we think that it is probably his best challenge. Bills of attainder inflict punishment "without a judicial trial." Brown, 381 U.S. at 448-49. Artway, of course, has had a trial, at which he was convicted of the crime triggering registration. The real complaint is not that the legislature has circumvented the judicial process, but that it has changed the results of that process. This is the essence of an ex post facto challenge.

[252] Double jeopardy is probably a stronger challenge than the bill of attainder claim, but it too has its drawbacks. Ex post facto laws are particularly objectionable because they deprive their object of all notice. See, e.g., Miller v. Florida, 482 U.S. 423, 429 (1987); Weaver v. Graham, 450 U.S. 24, 30 (1981). In contrast, the Double Jeopardy Clause bars the imposition of a second "punishment" in a separate proceeding even though the punishment was authorized at the time of the crime but just not sought at the same time as the first punishment. In addition, seven judges of the Ninth Circuit have recently pointed out the practical problem with broadly interpreting forfeitures as constituting "punishment" for double jeopardy purposes: those who forfeit illegal proceeds at the time of their arrest cannot be criminally prosecuted. See United States v. $405,089.23 U.S. Currency, 56 F.3d 41, 42 (9th Cir. 1995) (Rymer, J., with whom Hall, Wiggins, Kozinski, O'Scannlain, Trott, and Nelson, J.J., join, dissenting from denial of rehearing). Given these equitable and practical factors, courts may be more reluctant to deem measures "punishment" in a double jeopardy challenge, especially to the extent they must make difficult judgment calls under the test described infra.

[253] Indeed, at least one Justice has noted the equitable factor in arguing that double jeopardy does not bar punishing twice. See United States v. Hess, 317 U.S. 537, 555 (1943) (Frankfurter, J., concurring) ("The short of it is that where two such proceedings merely carry out the remedies which Congress has prescribed in advance for a wrong, they do not twice put a man in jeopardy for the same offense."). Of course, Justice Frankfurter's position has not carried the day. But two current Justices have recently expressed their view that the Double Jeopardy Clause does not apply to multiple punishments. See Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1955-59 (1994) (Scalia, J., with whom Thomas, J., joins, dissenting) ("'To be put in jeopardy' does not remotely mean 'to be punished,' so by its terms this provision prohibits, not multiple punishments, but only multiple prosecutions.").

[254] *fn16 Seemingly inconsistent language in Halper has perplexed some courts. Therefore, we explain in the margin how we think all the parts fit together. Halper declared:

[255] From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

[256] 490 U.S. at 448-49 (citations and internal quotations omitted) (emphasis added).

[257] On an initial reading, the first "solely" clause of the first sentence and the second "only" sentence seem to point in a different direction than the "only be explained as also serving either retributive or deterrent purposes" language on which we base our analysis.

[258] But the various parts of this excerpt can be reconciled; indeed they must since the majority in Halper certainly thought its declarations in this passage were consistent. As we illustrate with our subsequent soupmeat hypothetical, a measure is "punishment" if it can "only be explained as also serving either retributive or deterrent purposes." In other words, if the measure is excessive in relation to its proffered remedial purpose, it will be "punishment." The second sentence says the same thing if one focuses on the "fairly be characterized" language. A measure may not "fairly be characterized as remedial," but rather may fairly be characterized "only as a deterrent or retribution" if it can "only be explained as also serving either retributive or deterrent purposes." And the first "solely" part of the first sentence, like the second sentence, can be reconciled with the rest of the paragraph by focusing on the words "fairly be said" (as opposed to just "be said") and "serve that purpose" (as opposed to have that effect).

[259] This reading of the paragraph is consistent with the other language in the opinion (such as its "rational relation" discussion), the analysis of the case, and its holding: that the fine in question was punishment to the extent it vastly exceeded the government's remedial purpose -- recouping its costs of prosecution -- because such an excessive fine can only be explained as also serving either deterrent or retributive purposes.

[260] *fn17 In his concurrence, Judge Shadur intimates that we may have overresolved Halper. See [slip op. at 5]. We disagree. Our task, we believe, is to derive a general rule from the Supreme Court's precedents and apply it to the facts of this case, not tailor a specific rule to the facts. We also disagree with Judge Shadur's view that the "rule for a rare case" language of Halper limits the general ends-means test of that case. Id. As the words Judge Shadur quotes make clear, the "rule" is not the general Halper calculus, but the holding of that case: that only under the extreme factual circumstances of Halper does a fixed-penalty provision constitute "punishment" under the general means-ends test. In any event, we agree with Judge Shadur that our differences in this complex case are small indeed.

[261] *fn18 Even though Halper was a double jeopardy case, its move away from subjective purpose should apply to ex post facto and bill of attainder claims as well. The Court explained that the subjective approach was appropriate in "identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings." 490 U.S. at 447; see also infra pages 56-59 and accompanying notes (discussing cases interpreting this different protection under the Fifth and Sixth Amendments). However, the Court continued, "the approach is not well suited to the 'humane interests' safeguarded by the Double Jeopardy Clause's proscription of multiple punishments." Id. The Ex Post Facto and Bill of Attainder Clauses, of course, implicate the same "humane interests" as double jeopardy protections. The move to a more objective analysis, therefore, is better understood as a change of approach than as resting on any fundamental difference in the nature of double jeopardy, ex post facto, and bill of attainder protections.

[262] *fn19 In moving past exclusive reliance on subjective legislative intent, the Court partly heeded the admonition of Justice Frankfurter, expressed almost half a century earlier, that such "dialectical subtleties" were an unworkable approach to "punishment" jurisprudence. See United States v. Hess, 317 U.S. 537, 554 (1943).

[263] *fn20 Thus, Halper and Austin are somewhat in tension. Halper, examining the proportionality of the fine in question to the government's costs, held that a fine was "punishment" only to the extent it was disproportionate to the government's costs. 490 U.S. 448-49. Austin, relying primarily on history and looking at the statute as a whole (rather than the particular forfeiture in question), holds that forfeiture is "punishment" regardless of its proportionality to the government's costs. 113 S. Ct. at 2811-12 & n.14.

[264] After a cursory attempt to distinguish Halper in a footnote, Austin explains that it makes "little practical difference whether the Excessive Fines Clause applies to all forfeitures under [the relevant statute] or only to those that cannot be characterized as purely remedial." Id. "The Clause prohibits only the imposition of 'excessive' fines," the Court explained, "and a fine that serves purely remedial purposes cannot be considered 'excessive' in any event." Id. This may be so, but it collapses Austin's Eighth Amendment analysis into Halper's double jeopardy inquiry: "punishment" is not excessive if it is not "punishment."

[265] *fn21 This transition was presaged in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984). In that case, the Court held that double jeopardy did not bar a civil proceeding seeking forfeiture of firearms after the owner was acquitted in a separate criminal proceeding. Though the Court still placed decisive weight on actual legislative purpose, it also inquired "whether the statutory scheme was so punitive in purpose or effect as to negate that intention." Id. at 362-63 (emphasis added).

[266] *fn22 While this Court has rejected $405,089.23, we do not agree entirely with the reasoning of the Ninth Circuit dissenters from the denial of rehearing. The dissent criticizes the opinion as merging "the inquiry for excessive fines cases -- whether the amount forfeited is partly punishment -- into double jeopardy cases, where the issue is whether the amount forfeited is entirely punishment." 56 F.3d at 43.

[267] This is incorrect. Austin adds a historical analysis (and examines the statute as a whole rather than the specific measure in question), but it does not change the underlying nature of the Halper calculus. In fact, Austin follows its statement that it must determine whether this forfeiture serves "in part to punish" by quoting the standard from Halper and citing that case. If this were not clear enough, the Court explains the "relevant question" again later in the opinion as being the Halper analysis: "Under United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 1901, 1104 L. Ed. 2d 487 (1989), the question is whether the forfeiture serves in part to punish, and one need not exclude the possibility that forfeiture serves other purposes to reach that conclusion." 113 S. Ct. at 2810 n.12. The question is not whether the measure is "partly punishment" or "entirely punishment"; the question is whether it is "punishment." And a measure that serves in part to punish (as opposed to merely having some negative effect) is "punishment." The Halper calculus is admittedly somewhat confusing, but we have done our best to explicate it above. See supra pages 38-44 and accompanying notes.

[268] *fn23 We use the term "salutary" to include both remedial and otherwise beneficial goals.

[269] *fn24 Thus, we disagree with the First Circuit's understanding of Kurth Ranch and Halper in situations involving neither fines nor taxes. See United States v. Stoller, No. 95-2175, 1996 WL 77883 (1st Cir. Feb. 29, 1996). Stoller argues that Kurth Ranch supplies the general rule -- which Stoller dubs the "totality of circumstances" test -- while Halper is an "exception" for "monetary" penalties.

[270] We are unpersuaded by Stoller's limitation of Halper. Cabining Halper to "monetary" penalties is not supported by the broad language of that case. Reading nothing in Halper so strictly limiting it, we are loath to read it so narrowly without instruction from the Supreme Court. Stoller claims that the Supreme Court gave such an instruction in Kurth Ranch. But we read nothing in Kurth Ranch indicating that it supplies the general rule and Halper provides the exception. The majority opinion in Kurth Ranch, quoting Chief Justice Rehnquist's dissent therein, explains that because "tax statutes serve a purpose quite different from civil penalties, . . . Halper's method of determining whether the exaction was remedial or punitive 'simply does not work in the case of a tax statute.'" 114 S. Ct. at 1948. If so, then why not read Kurth Ranch as an "exception" for tax cases? What makes Kurth Ranch the general rule and Halper the exception in cases involving neither fines nor taxes? We believe that the better course when evaluating a measure that is neither a "civil penalty" nor a "tax" is to synthesize both Halper and Kurth Ranch and generalize them to the extent their language will support.

[271] We think that Stoller's limited reading of Halper may stem from a misunderstanding of the Halper calculus. Stoller states that, unlike monetary sanctions, many non-monetary sanctions "cannot fairly be characterized as serving only punitive purposes." 1996 WL 77883, at *6 (emphasis added). It thus suggests, incorrectly, that this is what Halper requires. As footnote 16 of our opinion describes in detail, a measure constitutes "punishment" under Halper if it may "fairly be characterized only as a deterrent or retribution." 490 U.S. at 449. The accurate placement of the "only" -- modifying "characterized" instead of "punitive" -- changes the meaning of that phrase entirely, making the test much less strict than the First Circuit reads it.

[272] We also disagree with Stoller's rationale that Halper is limited to "monetary" penalties because only "fines, forfeitures, and other monetary penalties . . . are quantifiable in actual or approximate monetary terms." 1996 WL 77883, at *5. While judging the proportionality of ends to means may be slightly more difficult in a non-monetary setting, courts compare qualitative means to qualitative ends all the time. Courts regularly use ends-means analysis in equal protection and due process cases to evaluate difficult-to-quantify rights (liberty, free speech, free exercise) like the one at issue here. The feasibility of applying Halper generally is demonstrated by our soupmeat hypothetical, as well as the many cases that have used the calculus to determine the constitutionality of revoking drivers' licenses for drunk driving. See, e.g., Maryland v. Jones, 666 A.2d 128 (Md. Ct. App. 1995), cert. denied, 1996 WL 26460 (Mar. 18, 1996).

[273] Furthermore, we think that Stoller's strict limitation of Halper is inconsistent with Stoller's own approach. Indeed, after arguing for Halper's inapplicability to its own case, Stoller itself proceeds to apply Halper. See 1996 WL 77883, at *12 ("Halper expressly recognizes that civil sanctions need not be precisely calibrated in order to survive scrutiny under the Double Jeopardy Clause as long as they work 'rough remedial justice.' We think this principle is fully transferable to the debarment context.") (citation omitted).

[274] Stoller's attack on Halper is also unnecessary to its result. Even under our approach, which uses Halper to analyze proportionality as part of a larger test, the limited debarment order challenged in Stoller would not constitute "punishment." We would be hard pressed to conclude otherwise in view of the Supreme Court's decision in the factually similar cases of De Veau and Hawker v. New York, 170 U.S. 189 (1898).

[275] Nevertheless, our approach differs from the First Circuit's in our application of Halper to this situation. Given our broader test incorporating DeVeau, Austin, Kurth Ranch, and Morales, we do not think that exclusive reliance on Halper is proper. But Halper is not inapplicable, "dysfunctional," or particularly strict in non-monetary settings such as this. And Stoller's "totality of the circumstances" test, which it purports to extract from Kurth Ranch, is neither described as such by that opinion nor sufficiently determinate to be helpful (like the similar Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), test rejected by the Supreme Court for Double Jeopardy analysis).

[276] *fn25 We discuss the benchmarks for evaluating the "matter of degree" infra page 69.

[277] *fn26 Although the New Jersey Supreme Court recognized in Doe that Mendoza-Martinez does not apply to this analysis, we disagree with that court's approach insofar as it failed to take this recognition to its logical conclusion (in addition to its neglect of history under Austin and its total disregard of effects). The Doe Court notes that Mendoza-Martinez does not apply to the relevant "punishment" analysis, but continues to rely on other authorities that, like Mendoza-Martinez, pertain to the question of whether a proceeding is sufficiently criminal in nature to warrant protection under the Fifth and Sixth Amendments.

[278] For example, although the Doe Court nominally applies the Halper and Austin tests, it loads its analysis with the assertion that "[w]here the stated legislative intent is remedial, the burden on those claiming there is a hidden punitive intent is the 'clearest proof' of that intent." Doe, 142 N.J. at 162 (citing United States v. Ward, 448 U.S. 242, 248-49 (1980); Flemming v. Nestor, 363 U.S. 603, 617 (1960)). Ward, like Mendoza-Martinez, involves the different question whether a proceeding is effectively criminal so that the procedural protections of the Fifth and Sixth Amendments must apply. Ward, therefore, is as inapplicable to this analysis as Mendoza-Martinez itself. And Flemming was decided in the "actual purpose" era of De Veau v. Braisted, 363 U.S. 144 (1960) (decided the same year). Halper has since made clear that "the labels 'criminal and 'civil' are not of paramount importance." 490 U.S. at 447. Austin, Kurth Ranch, and Morales have further changed the analysis, sensibly we think, to include an increasing focus on objective, effect-oriented aspects of the measure in question.

[279] The inapplicability of Mendoza-Martinez also refutes New Jersey's argument concerning United States v. Salerno, 481 U.S. 739 (1987). New Jersey argues that Salerno establishes that even preventive detention does not offend the Ex Post Facto Clause. Salerno held that preventive detention, before a trial, was not pre-trial "punishment" in violation of the Due Process Clause. Id. at 755. The Court reached this conclusion through application of the Mendoza-Martinez test. Id. at 747. Salerno, therefore, sheds little light on the test that we must apply in the context of an ex post facto inquiry.

[280] *fn27 Even if we were to apply the Kennedy v. Mendoza-Martinez factors, they do not support a determination that registration constitutes punishment. Only one factor points toward punishment: whether the burden applies to conduct that is already criminal. The other six point toward non-punishment. Even factor (3) -- whether the burden is imposed only after proof of scienter (criminal intent) -- militates against a finding of "punishment" for registration because Megan's Law also applies to those judged not guilty by reason of insanity. See N.J.S.A. 2C:7-2a.

[281] *fn28 Lambert v. California, 355 U.S. 225 (1958), invalidated a registration statute, but for the different reason that it gave no notice. The registrant in that case did not bring the punishment-oriented claims that Artway makes, apparently because her facts would not support the other predicates of those challenges (e.g., she committed her offense after the enactment of that act).

[282] *fn29 Of course, insofar as De Veau, Hawker, and Flemming undertook only an actual purpose test, they are methodologically incomplete compared with current law on "punishment." Nevertheless, because these cases have not been overruled, we must try to read them consistently with current law. To do so, the measures challenged in these cases must survive the subsequent objective purpose and effect tests. We presume, therefore, that these cases must provide benchmarks for permissible effect.

[283] *fn30 Past criminal conduct is the basis of 90 of the possible 111 points in the Registrant Risk Assessment Scale.

[284] *fn31 Moreover, the heightened scrutiny the plurality hints at -- "the State must have a particularly convincing reason," id. at 85 -- was probably unnecessary to decide the equal protection issue: The classification of insanity acquittees was so underinclusive that it was not even rational.

[285] *fn32 We express no opinion regarding whether Artway may be able to challenge his "repetitive and compulsive" finding at a notification hearing if, in fact, he is ever slated for notification. We also express no opinion about whether Artway may be able to avoid registration, on a basis other than due process, if he can prove that the "repetitive and compulsive" finding was never valid. Finally, we do not opine on the related question -- which is not now posed by Artway in these terms -- whether he may on some theory be able to avoid (or to terminate the need for) registration if he can prove that the original "repetitive and compulsive" finding no longer has any current validity.

[286] *fn33 We also decline to address Artway's argument, made in his brief to this Court, that Megan's Law does not apply to him as a matter of New Jersey law. We almost certainly cannot grant Artway's requested relief -- an injunction against state officials from enforcing this law -- on this basis. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89 (1984) (holding that the Eleventh Amendment bars federal courts from enjoining state officials from violating state law). Moreover, confronted with the Pennhurst problem, Artway has disclaimed this claim for relief, going so far as to insist at oral argument and in a subsequent letter memorandum that it was never his intention to seek such relief from this Court.

[287] *fn34 See Biegenwald v. Fauver, 882 F.2d 748, 752 n.3 (quoting 17A Charles A. Wright et al., Federal Practice and Procedure Section(s) 4242, at 42-44 (1988)). A leading commentator has interpreted the Supreme Court's typical formulation of amenability -- that the law be "fairly subject" to a state court interpretation eliminating the constitutional issues -- as establishing a fairly high threshold requiring a "substantial possibility" that a state interpretation would obviate the need for a federal constitutional decision. Erwin Chemerinsky, Federal Jurisdiction 692-93 (1994).

[288] *fn35 This Court reviews district court decisions on this factor under an abuse of discretion standard if they are "adequately explained." See Hughes v. Lipscher, 906 F.2d 961, 965 (3d Cir. 1990). Here, the district court provided no explanation about why significant state policies would not be interfered with by an erroneous decision about the scope of Megan's Law. See Artway v. Attorney General, 876 F. Supp. 666, 670 n.4 (D.N.J. 1995). It concluded simply that because Artway "is facing a criminal penalty if he does not register today . . . [,] any argument for abstention obviously fails." Id. Thus, the district court appears to have skipped straight to the discretionary balancing of hardships. We agree that the equities favor Artway, but this weighing is necessary -- and appropriate -- only if the three requirements for abstention are met.

***** END FOOTNOTE(S) HERE *****


19960412

W.P. et al., Individually and as Representatives of a Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Plaintiffs, v. DEBORAH PORITZ, Attorney General of New Jersey; JEFFREY S. BLITZ, Atlantic County Prosecutor; CHARLES R. BUCKLEY, Acting Bergen County Prosecutor; STEPHEN G. RAYMOND, Burlington County Prosecutor; JOSEPH P. AUDINO, Acting Camden County Prosecutor; STEPHEN D. MOORE, Cape May County Prosecutor; NEIL S. COOPER, Acting Cumberland County Prosecutor; CLIFFORD J. MINOR, Essex County Prosecutor; HARRIS Y. COTTON, Gloucester County Prosecutor; CARMEN MESSANO, Hudson County Prosecutor; SHARON B. RANSAVAGE, Hunterdon County Prosecutor; MARRYANN K. BIELAMOWICZ, Mercer County Prosecutor; ROBERT W. GLUCK, Middlesex County Prosecutor; JOHN KAYE, Monmouth County Prosecutor, W. MICHAEL MURPHY, JR., Morris County Prosecutor; DANIEL J. CARLUCCIO, Ocean County Prosecutor; RONALD S. FAVA, Passaic County Prosecutor; RONALD A. EPSTEIN, Salem County Prosecutor; MELAINE B. CAMPBELL, Acting Somerset County Prosecutor, DENNIS O'LEARY, Sussex County Prosecutor; EDWARD NEAFSEY, Acting Union County Prosecutor; and JOHN J. O'REILLY, Warren County Prosecutor, Defendants.



Civil Action No. 96-97



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY



931 F. Supp. 1199; 1996 U.S. Dist. LEXIS 9398



July 1, 1996, Decided







DISPOSITION: [**1] Defendants' motion for summary judgment upon each Count of plaintiffs' Second Amended Complaint granted. Plaintiffs' Second Amended Complaint dismissed, with prejudice. Plaintiffs' motions for summary judgment denied. Matter dismissed without imposition of taxable costs; all parties are to bear their own. Plaintiffs' application for a stay of this decision denied.



COUNSEL: APPEARANCES:


SUSAN L. REISNER, Public Defender, By: Michael Buncher, Chief Counsel, Edward Barocas, Special Counsel, Special Hearings Unit, Office of the Public Defender, CN 850, Trenton, New Jersey 08625 (Attorney for Plaintiffs).


DEBORAH T. PORITZ, Attorney General, By: Jane Grall, Joseph L. Yannotti, Assistant Attorneys General, Rhonda S. Berliner-Gold, B. Stephan Finkel, Deputy Attorneys General, Hughes Justice Complex, 25 Market Street, CN 112, Trenton, New Jersey 08625 (Attorney for Defendant Deborah Poritz).


CLIFFORD J. MINOR, Essex County Prosecutor, By: Jane Deaterly Plaisted, Assistant Prosecutor, Essex County Courts Building, Newark, New Jersey 07102 (Attorney for Defendant County Prosecutors).


DENNIS O'LEARY, Sussex County Prosecutor, By: Thomas E. Bracken, Assistant Prosecutor, 19-21 High [**2] Street, Newton, New Jersey 07860 (Attorney for Defendant Sussex County Prosecutor).


RONALD K. CHEN, ESQUIRE, Rutgers Law School, Constitutional Litigation Clinic, 15 Washington Street, Newark, New Jersey 07102-3192 (Attorney for Amicus ACLU).


FAITH S. HOCHBERG, United States Attorney, By: George S. Leone, Assistant United States Attorney, Federal Building, 970 Broad Street, Newark, New Jersey 07102 (Attorney for Amicus United States of America).



JUDGES: JOHN W. BISSELL, United States District Judge



OPINIONBY: John W. Bissell



OPINION:

[*1203] OPINION


BISSELL, District Judge

In their Second Amended Complaint the plaintiffs in this class action assert that the New Jersey Registration and Community Notification Laws (hereinafter "Megan's Law") is unconstitutional as applied retroactively to the plaintiff class because it violates the ex post facto clause of the United States Constitution (Count II), its double jeopardy clause (Count III) and the procedural due process protections of the fourteenth amendment (Count IV). Count I sought a temporary restraining order and a preliminary injunction pendente lite. That relief has previously been granted as reflected in prior [**3] Opinions and Orders of this Court. Shortly after the filing of the Second Amended Complaint, this Court certified the following plaintiff class, constituting:


All persons required to register as a sex offender pursuant to N.J.S.A. 2C:7-1 et seq. and whose offenses were committed prior to October 31, 1994, the effective date of the New Jersey Registration and Community Notification Laws, and who have been or will be classified as tier II or tier III offenders.


(Order, March 15, 1996).

Presently before the Court are plaintiffs' motion for summary judgment and defendant Deborah Poritz's motion for summary judgment on all Counts seeking final relief: Counts II, III and IV. All additional defendants, the county prosecutors, have joined in Attorney General Poritz's motion. Plaintiffs bring this action under 42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. § § 1331 and 1343(3). For the reasons set forth below, plaintiffs' motion is denied and defendants' motion is granted.

INTRODUCTION

Society's concern about sex offenders is an issue which is extremely important in modern society. The many efforts to address this issue have failed as often [**4] as they have succeeded. There is still much to be learned about the cause of these acts and how best to combat them.

The lack of societal success in this area is demonstrated nowhere more poignantly than in the death of seven-year-old Megan Kanka. The shock that the community would normally feel at the brutal death of a child was magnified tenfold by the fact that the alleged perpetrator was a twice-convicted sex offender. Thus, it is natural and appropriate that this incident would spur the public to demand quick and decisive actions on the part of its government to curtail such tragedies in the future.

However, government is at all times constrained by the limitations placed on it by the United States Constitution and the balancing of political and societal values contained on its pages. The rights which this Court examines today "are towering constitutional provisions of great importance to individual dignity, freedom, and liberty." Doe v. Poritz, 142 N.J. 1, 43, 662 A.2d 367 (1995).

It must be clearly and emphatically stated that what the Court here undertakes is not a balancing of the rights of sex offenders against the rights of their victims. Rather, it is an analysis [**5] of the breadth of the rights which every American holds, and the constitutional limitations on a government's power to infringe them. When the government violates an individual's constitutional rights, regardless of the propriety of its motivation, it is this Court's duty, if requested, to identify and redress such a violation.


I. Megan's Law

In order to evaluate the statutes involved in this case it is necessary to review the [*1204] circumstances that surrounded their passage. In the summer of 1994, seven-year-old Megan Kanka was abducted, molested and strangled near her home. (Cert. of Jane Grall, P 2). The man accused of this reprehensible act, Jesse Timmendequas, was previously convicted of sex offenses involving young girls. (Id.) The Kankas and many of the other neighborhood residents were unaware of the criminal history of Timmendequas and the other two convicted sex offenders with whom he lived. (Id.) Public reaction to this crime was intense and Governor Whitman and the State Legislature quickly responded to the clamor. Within one week of the discovery of Megan's body, both political branches had proposed extensive legislative and regulatory packages [**6] to address the issue. ( Id., PP 4-6).

Within a month, the first versions of the Community Registration and Notification laws passed the General Assembly and the Senate. ( Id., PP 13-15). In the General Assembly, the bills were declared "emergency" and therefore bypassed committee and were put to a vote the same day as the second reading. ( Id., P 13). The bills were conferenced and amended, and ultimately were signed into law on October 31, 1994. ( Id., PP 13-19). The Registration and Notification statutes are two of ten statutes signed the same day which are collectively referred to as "Megan's Law" in memory of Megan Kanka. (Defendant's Br. at 3).

Megan's Law requires a system of registration for sex offenders and other offenders who have committed crimes against children. n1 (Id.) Once the individual has registered, he is then placed into one of three Tiers based upon the risk of re-offense, Tier I (low risk), Tier II (moderate risk), and Tier III (high risk). N.J.S.A. 2C:7-8. These classifications are made by the county prosecutors utilizing a "Registrant Risk Assessment Scale" developed by the Attorney General. ( Id. at 3). Based upon the Tier Classification, [**7] segments of the public are provided with information about the registrant: law enforcement for Tier I; law enforcement and certain community organizations for Tier II; law enforcement, community organizations, and individuals likely to encounter the registrant for Tier III. (Id.)



n1 The individuals required to register are defined as those persons with:

(2) A conviction, adjudication of delinquency, or acquittal by reason of insanity for aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to paragraph (2) of subsection c. of N.J.S. 2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S. 2C:24-4; endangering the welfare of a child pursuant to paragraph (4) of subsection b. of N.J.S. 2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c. 291 (C. 2C:13-6); criminal sexual contact pursuant to N.J.S. 2C:14-3b. If the victim is a minor; kidnapping pursuant to N.J.S. 2C:13-1, criminal restraint pursuant to N.J.S. 2C:13-2, or false imprisonment pursuant to N.J.S. 2C:13-3 if the victim is a minor and the offender is not the parent of the victim; or an attempt to commit any of these enumerated offenses if the conviction, adjudication of delinquency or acquittal by reason of insanity is entered on or after the effective date of this act or the offender is serving a sentence of incarceration, probation, parole or other form of community supervision as a result of the offense or is confined following acquittal by reason of insanity or as a result of civil commitment on the effective date of this act;

N.J.S.A. 2C:7-2(b)(2).

If the individual was not incarcerated, on probation, parole or other form of community supervision on the effective date of the statute, then registration is triggered by a finding by the original court of a pattern of repetitive, compulsive behavior. N.J.S.A 2C:7-2(b)(1).


[**8]

Shortly after its passage, Megan's Law was challenged in both the federal and state courts. The Supreme Court of New Jersey addressed the issue in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995). The Doe Court upheld the statute against ex post facto, double jeopardy, equal protection, administrative procedure act, privacy and due process challenges. See Doe, 142 N.J. at 12. That Court, however, found the statute to be lacking in its original form, and crafted a procedure of judicial review which it felt would adequately protect the liberty interests involved. Doe, 142 N.J. at 28-40. This holding was later augmented by that Court through a judicial order of October 23, 1995 specifically outlining the procedure to be followed in such review. [*1205] (Appendix to Brief in Support of Plaintiffs' Motion for Summary Judgment (hereinafter "Plaintiffs' App.") at A-306-28). The Doe v. Poritz Court also limited the scope of notification under Tier II and Tier III to those organizations and persons "likely to encounter" the registrant. Doe, 142 N.J. at 35-38.


II. Artway v. Attorney General

A. History

Prior to the Supreme Court of New Jersey's decision [**9] in Doe, the constitutionality of Megan's Law was addressed in this District in Artway v. Attorney General, 876 F. Supp. 666 (D.N.J. 1995). Alexander Artway was found guilty of a sex offense and sentenced prior to the effective date of the statute. ( Id. at 668). The trial judge found his conduct to be "characterized by a pattern of repetitive, compulsive behavior." (Id.) Prior to registration, Artway filed an action for a Declaratory Judgment to invalidate Megan's Law on the same grounds asserted by plaintiffs in the case at bar.

Judge Politan found the law to be violative of the ex post facto clause of Article I of the United States Constitution. In doing so, he applied the multifactor test enumerated by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). ( Artway, 876 F. Supp. at 688-92). Specifically, the court upheld registration and Tier I notification, and struck down notification at Tiers II and III. Id. That decision was appealed.

While the Artway case was pending on appeal, and after the Doe v. Poritz decision, the Attorney General and the county prosecutors began to implement the revised [**10] procedures for registration and notification. As registrants began to receive notice, several of them, including the plaintiffs in the instant action, sought preliminary injunctive relief from several judges in this district. That relief was granted in all instances, in part due to the pendency of the Artway appeal which could have been dispositive of this litigation.

Each of these actions was filed on an emergent basis, straining the court's resources. Therefore, on March 15, 1996, pursuant to the allegations of the Second Amended Complaint herein, a class action was certified describing the class as set forth above.

The preliminary injunction was scheduled to terminate "10 days after the Third Circuit has issued its opinion on the appeal of Artway v. Attorney General et al., Docket Nos. 95-5195, 95-5157, 95-5194." The Artway decision was expected to be dispositive of he due process, double jeopardy, and ex post facto issues raised in connection with Megan's Law. However, the Third Circuit found that those claims as addressed to Tier II and Tier III designees were not ripe for review in that case. Artway v. Attorney General, 81 F.3d 1235, 1246-52 (3d Cir. 1996). [**11] As a result, this Court extended its injunctive relief to allow the parties to address those issues through motion practice, for summary judgment or otherwise, if the claims of any of the present plaintiffs had ripened. (See Order of April 22, 1996). This Court now directly addresses the merits of plaintiffs' Constitutional claims. n2



n2 It is very important that one understands what this case is not about. Aside from their due process argument, plaintiffs do not seek to have Megan's Law declared unconstitutional ad infinitum, no matter to whom it might be applied. Nor could they; for the plaintiff class members are only those who committed enumerated offenses before that law's enactment. Obviously, only plaintiffs so situated could attack Megan's Law on ex post facto and double jeopardy grounds, the very issues in the case at bar. This suit, therefore, does not contest the application of Megan's Law to persons who committed the enumerated sex offenses after the effective date of that law. A ruling in favor of the plaintiffs would limit significantly the number of persons subject to Tier II and Tier III notifications for much of this decade. However, by the turn of the next century, such notifications will increase as newly-convicted offenders are released, no matter what this Court's ruling in the present suit.


[**12]

In considering its role in evaluating a statute such as Megan's Law, this Court draws upon the analysis of Justice Stein at the conclusion of his dissenting Opinion in Doe v. Poritz.


"The Legislature's value judgment about these laws is entitled to great respect, but that judgment comprises only one part of [*1206] the constitutional equation. The judiciary's task is to complete the equation by evaluating the legislative determination in the context of settled Constitutional principles. Those principles are neither negotiable nor flexible, their importance having been conclusively determined more than two hundred years ago by the founding fathers. In applying those principles, we must bear in mind their origins: "The constitutional prohibitions against the enactment of ex post facto laws and [double jeopardy] reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 513, 109 S. Ct. 706, 732, 102 L. Ed. 2d 854, 895 (1989) (Stevens, J., concurring). In addition, we are reminded that retroactive statutes raise particular concerns. The Legislature's unmatched [**13] powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1982), the Ex Post Facto Clause not only ensures that individuals have "fair warning" about the effect of criminal statutes, but also "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id., at 28-29, 101 S. Ct. 1483, 1497-98, 128 L. Ed. 2d 229, 253 (1994).


The Constitution's prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age. Today, our concern is with prior sex offenders; in the 1950's the legislative concern focused on Communists; and in the 1860's Congress was determined to punish legislatively those who had supported the Confederacy. Future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent [**14] threat to the public safety.

* * *

Despite the Legislature's understandable concern about the danger presented by prior sex offenders, the judicial role, mindful of the compelling pressures that led to the statute's enactment, is to test the statute on the basis of the Constitution's fundamental protection against punitive retroactive legislation."


Doe v. Poritz, 142 N.J. 1, 145-47, 662 A.2d 367 (1995).

However, this Court's analysis should not overlook present reality. Despite what "original intent" theorists would say, the United States Constitution is not mired in the life and times of the 1790's and earlier. The beauty of the Constitution is that it is a living document as applicable and vital in the 1990's as it was more than 200 years ago. The very exceptional men who drafted, debated and ratified the Constitution had the foresight to craft a rather brief document enunciating general principles; a document which they hoped would endure for several centuries as our forebears set the course of this country upon the noble experiment of representative government for and by a free people. Accordingly, while this Court must consider history in reaching its current [**15] decision, it does not do so bottled up in the era of the 17th and 18th centuries. This Court agrees with Justice Stein that constitutional prohibitions against ex post facto laws and double jeopardy serve as an appropriate check upon legislative excesses. However, when evaluating the New Jersey Legislature's response to bona fide societal concerns of the 1990's, the Court will consider this reality and will afford to that legislature the "respect" to which its "value judgment[s]" are entitled. Doe v. Poritz, 142 N.J. at 145.

B. The Third Circuit Opinion

On appeal, the Third Circuit found that many of Mr. Artway's claims were not ripe because he had neither registered nor been classified by the appropriate county prosecutor's office. Artway, 81 F.3d at 1250. The court held that an individual must be more fully involved with the statutory scheme through registration and initial classification. (Id.) However, it was not deemed necessary [*1207] for an individual to have undergone actual notification before the challenge could be levied. Artway, 81 F.3d at 1250 n.9.

The Third Circuit did find that Artway's challenges to registration and Tier I notification were ripe, [**16] and affirmed the district court's decision holding them to be constitutional. ( Id. at 1271). The Third Circuit also conducted an exhaustive review of Supreme Court precedent and then articulated a "synthesis" of those decisions applicable to ex post facto and double jeopardy, upon which it formulated a test for determining when an act constitutes "punishment" under those provisions. ( Id. at 1253-63). Although the issues regarding Tiers II and III were not ripe, the Court applied this test to both registration and Tier I. This highly structured formula was stated as follows:

A measure must pass a three-prong analysis -- (1) actual purpose, (2) objective purpose, and (3) effect -- to constitute non-punishment. We must look at actual purpose to see "whether the legislative aim was to punish." See De Veau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 1155, 4 L. Ed. 2d 1109 (1960). If the legislature intended Megan's Law to be "punishment," i.e., retribution was one of its actual purposes, then it must fail constitutional scrutiny. If, on the other hand, "the restriction of the individual comes about as a relevant incident to a regulation," the measure will pass this first prong. Id.

If the legislature's [**17] actual purpose does not appear to be to punish, we look next to its "objective" purpose. This prong, in turn, has three subparts. First, can the law be explained solely by a remedial purpose? United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 1901-02, 104 L. Ed. 2d 487. If not, it is "punishment." Second, even if some remedial purpose can fully explain the measure, does a historical analysis show that the measure has traditionally been regarded as punishment? See Austin, 509 U.S. 602, 113 S. Ct. 2801, 2806, 125 L. Ed. 2d 488. If so, and if the text or legislative history does not demonstrate that this measure is not punitive, it must be considered "punishment." Third, if the legislature did not intend a law to be retributive but did intend it to serve some mixture of deterrent and salutary purposes, we must determine (1) whether historically the deterrent purpose of such a law is a necessary complement to its salutary operation and (2) whether the measure under consideration operates in its "usual" manner, consistent with its historically mixed purposes. See Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 1946-48, 128 L. Ed. 2d 767. Unless the partially deterrent measure meets both of these criteria, it is "punishment." [**18] If the measure meets both of these criteria and the deterrent purpose does not overwhelm the salutary purpose, it is permissible under Kurth Ranch.

Finally, if the purpose tests are satisfied, we must then turn to the effects of the measure. If the negative repercussions----regardless of how they are justified----are great enough, the measure must be considered punishment. See Morales, U.S. at , 131 L. Ed. 2d 588, 115 S. Ct. 1597, 1603. This inquiry, guided by the facts of decided cases, is necessarily one "of degree." See id.


Artway, 81 F.3d at 1263.


III. United States v. Ursery

Poised to apply the Artway formula, this Court on June 24, 1996 received the United States Supreme Court's opinion in United States v. Ursery, 116 S. Ct. 2135, 135 L. Ed. 2d 549, 1996 WL 340815 (June 24, 1996), which alters the analysis to be employed in the case at bar.

Ursery involved two separate double jeopardy challenges to civil forfeiture statutes, 21 U.S.C. § 881(a)(6) and 21 U.S.C. 881(a)(7). (Ursery at *3-4). In a case coming from the Sixth Circuit, civil forfeiture proceedings were instituted against Guy Ursery's home, and following the resolution of that action he was indicted [**19] for manufacturing marijuana. (Id. at *3). In a companion case from the Ninth Circuit [U.S. v. $ 405,089.23, 33 F.3d 1210 (9th Cir. 1994)], the civil forfeiture action was instituted following the criminal conviction of petitioners Alt and Wren. (Id.) Both the Sixth and Ninth Circuits found the second proceeding to be unconstitutional and violative of the Double Jeopardy [*1208] Clause. (Id.) The Supreme Court reversed. (Id.)

The Courts of Appeals based their decisions largely on the holding in Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), which they believed stood for the proposition that all in rem civil forfeitures under 21 U.S.C. § 881 were "punishment" for the purposes of Double Jeopardy. See United States v. Ursery, 59 F.3d 568, 572-73 (6th Cir. 1995); United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210, 1219-22 (9th Cir. 1994).

The Supreme Court rejected this contention, stating the "holding of Austin was limited to the Excessive Fines Clause of the eighth amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence." (Ursery at *13). Furthermore, in footnote [**20] 2 of the majority Opinion, the Supreme Court limits the applicability of Halper, confining it to a much narrower scope than that suggested by Justice Stevens' dissent in Ursery and employed by the Third Circuit in Artway. (Ursery at *11). The Court went on to say that "nothing in Halper, n3 Kurth Ranch, n4 or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause... None of those cases dealt with the subject of this case: in rem civil forfeitures for the purposes of the Double Jeopardy Clause." (Ursery at *12). Instead, the Supreme Court based its analysis on a line of cases dealing with civil forfeiture, Various Items of Personal Property v. United States, 282 U.S. 577, 75 L. Ed. 558, 51 S. Ct. 282 (1931); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489 (1972); and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984). (Ursery, at *12-16).



n3 United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). [**21]




n4 Department of Internal Revenue v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994).


This Court recognizes that it is bound by whatever Third Circuit precedent governs its inquiry. It may neither ignore nor reject such precedent. In the case at bar, however, the particular, compartmentalized approach of Artway need not and should not be followed, because it is not binding precedent for the issues and claims presented in the cross-motions for summary judgment.

First, and least significant to the analysis of Artway's precedential value, is the fact that the claims in Artway attacking Tiers II and III were specifically found to be not ripe for adjudication. If this were all, the Court would apply the structured Artway pattern because it was both enunciated and then applied to the registration and Tier I notification features of Megan's Law; but there is more.

Secondly, Artway itself recognized the limitations of its own conclusions:

We have thus attempted to harmonize a body of doctrine that has caused much disagreement in the federal [**22] and state courts. We realize, however, that our synthesis is by no means perfect. Only the Supreme Court knows where all the pieces belong. The Court will, we hope, provide more guidance with its decision in United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), amended on denial of rehearing, 56 F.3d 41 (1995), cert. granted, U.S. , 116 S. Ct. 763, 133 L. Ed. 2d 707 (1996), or some other case in the near future. With this qualification in mind, we turn to the application of this test to Megan's Law.


81 F.3d at 1263.

Through Ursery (the same case noted above by the Third Circuit), the U.S. Supreme Court has now spoken, and has presented a different approach to the issues which were then before Artway and are now before this Court.

Thirdly, Ursery expressly rejects the philosophical foundation of Artway: that a universal rule for the definition of "punishment" can and should be derived through a "synthesis" achieved from analyzing the Supreme [*1209] Court's recent decisions in Halper, Austin, Kurth Ranch and Morales n5. Not only is that evident from Justice Rehnquist's Opinion itself, it is highlighted by a comparison [**23] of that Opinion with the global (Artway) approach advocated by Justice Stevens in his dissent. Artway's synthesis does not survive Ursery, a ruling by the highest court of the land, which this Court must follow. n6



n5 California Dept. of Corrections v. Morales, U.S. , 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995).

n6 Plaintiffs argue that this Court must apply Artway's analytical pattern and wait for the Third Circuit to decide the impact of Ursery upon it. For the reasons set forth above, this Court disagrees. Relatedly, plaintiffs assert that this Court should not speculate how the Third Circuit would treat Ursery and then proceed to rule based on such speculation. However, that is not what this Court is doing; it is making its own determination of the significance of the Ursery decision and applying that determination here.


The Supreme Court has now stated that Halper, Austin, Kurth Ranch, (by implication Morales), and now Ursery cannot be [**24] employed to establish a "synthesis" that generates a universal analytical framework for defining "punishment" in all cases. n7 That determination does not, however, require this Court to relegate each of those cases to a narrow context and thereafter decline to consult them for guidance in deciding the case at bar. Certain considerations common to those cases counsel this Court to employ them in deciding whether the Tier II and/or Tier III notification provisions of Megan's Law impose "punishment." These common considerations are the expressed intent of the legislature as reflected in the legislation itself and the legislative history; the "purpose" of that legislation, viewed objectively, particularly if that demonstrates a potential for a more punitive objective; a balancing of remedial and punitive goals; an analysis of how such laws have been considered historically, if there is any clear historical analogue; and a review of the "effect" of such legislation, if that effect is extreme or severe. Not surprisingly, each of those considerations was recognized in Artway. What Ursery teaches us, however, is that such considerations may not be transformed into a rigid series of [**25] hurdles which must be surmounted, one after the other, before the legislation can survive an ex post facto or double jeopardy challenge. Rather this Court, in an analysis similar to that in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) (although the factors considered are not identical), must weigh these considerations in a less structured fashion to reach its decision. Ursery also instructs this Court to focus primarily upon precedent most closely resembling the facts, issues and constitutional provisions involved in the case at bar.



n7 As to Halper, this result was foreshadowed by Judge Shadur's concurring Opinion in Artway. 81 F.3d at 1271-73.


Employing the analysis set forth above, this Court holds that Tier II and Tier III notifications applied to members of the plaintiff class do not violate their rights under the ex post facto and double jeopardy clauses.


IV. Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that [**26] summary judgment should be granted "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." Fed. R. Civ. P. 56(c); see also Chipol1ini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). In deciding a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and must resolve any reasonable doubt as to the existence of a genuine issue of fact against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of establishing that there exists no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

The Supreme Court has stated that, in applying the criteria for granting summary judgment,


the judge must ask ... not whether ... the evidence unmistakably favors one side [*1210] or the other but whether a fair-minded jury could return a verdict for the [**27] [nonmoving party] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict...


Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it will affect the outcome of a lawsuit under the applicable law, and a dispute over a material fact is "genuine" if the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. (Id.)

In order to survive a motion for summary judgment, a plaintiff must present "more than a mere scintilla of evidence" in his favor. He "cannot simply reallege factually unsupported allegations contained in his pleadings." Anderson v. Liberty Lobby, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990). Only evidence that [**28] would be admissible at trial may be used to test a summary judgment motion. Evidence with a deficient foundation must be excluded from consideration. Williams v. Borough of West Chester, PA, 891 F.2d 458, 466 (3d Cir. 1989); see also Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890-91 (3d Cir. 1992).

There is no dispute as to the material facts in this case. Any factual disagreement lies in the area of which facts are relevant to the Court's analysis. The case is therefore amenable to summary judgment.


V. Ripeness

Article III's case or controversy mandate requires that a party suffer actual injury or be in imminent danger of doing so, before a statute may be challenged. Artway, 81 F.3d at 1246. This ripeness requirement prevents a court from becoming entangled in abstract disagreements. (Id.) In determining whether an issue is ripe for adjudication, two factors must be considered: "(1) the hardship to the parties of withholding court consideration; and (2) the fitness of the issues for judicial review." Artway, 81 F.3d at 1247 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 [**29] (1967)).

The hardship prong dictates that the threat be "'credible' and not merely 'speculative.'" (Id.) "When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973)). n8



n8 The present classification and notification hearings are not criminal proceedings; however, the standard for ripeness enunciated in Babbit is equally applicable to non-criminal proceedings.


The threat of the application of Megan's Law to the class members is certainly credible under this standard. Artway's claims were unripe because he had neither registered nor been classified [**30] in a given Tier. Artway, 81 F.3d at 1248. By contrast, individuals do not become members of the class until they have registered and county prosecutors have made and noticed an initial Tier II or III designation. At this point, unless the registrant takes affirmative action for review, notification at a specified level is a foregone conclusion.

The second prong of the test is whether the issues have been sufficiently explicated to provide for judicial review. ( Id. at 1249). The voluminous submissions to the Court by all parties, including copies of the Registrant Risk Assessment Scale forms, Superior Court orders, legislative history, affidavits, newspaper articles, and expert reports provide more than adequate factual underpinning [*1211] for this Court's analysis. Furthermore, the "district court enjoys flexibility to collect appropriate evidence so that the issue may be fit for judicial review." ( Id. at 1250 n.9). n9 The plaintiffs' claims are ripe for this Court's review.



n9 The Third Circuit panel was aware of the instant action when it provided this guidance in footnote 9 of its Opinion.


[**31]


VI. Ex Post Facto and Double Jeopardy

Article I, § 10 of the United States Constitution prohibits the passage of ex post facto laws. n10 U.S. Const. art. I, § 10. This limitation on the power of the legislature was forged out of the experiences of the Constitution's drafters under the Parliament of Great Britain which had the authority to pass such laws. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 389, 1 L. Ed. 648 (1798). The ex post facto clause was adopted because "the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, ... the people of the United States in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed." Cummings v. Missouri, 71 U.S. (4 Wall) 277, 322, 18 L. Ed. 356 (1867); see also Calder, 3 U.S. at 389 ("With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice.")



n10 An ex post facto law is defined as "a law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed." Blacks Law Dictionary, 580 (West Sixth Ed. 1990) (citations omitted).


[**32]

As the Supreme Court so aptly stated in Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925):


It is settled, by decisions of this court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.


It is without dispute that Megan's Law applies to acts committed prior to its effective date, therefore this Court must address the "more burdensome ... punishment" prong to determine if there is an ex post facto violation. See, e.g. N.J.S.A. 2C:7-2(b)(1).

Similarly, the double jeopardy clause "prohibits governments from punishing citizens a second time for the same offense for which they had previously been punished." Artway, 876 F. Supp. at 685. Specifically, it states: "nor shall any person be subject for the same offense to be twice put to jeopardy of life or limb." U.S. Const. amend. V. This prohibition [**33] applies equally to "a second prosecution for the same offense after conviction ... and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). Each of the class plaintiffs has been previously convicted of a sex related or other offense which makes him subject to Megan's Law, and triggers this secondary requirement.

Thus under both the ex post facto and Double Jeopardy Clauses, "the threshold question ... is whether the [notification] provisions of Megan's Law impose 'punishment.'" Artway, 81 F.3d at 1253. If Tier II and Tier III notification does not constitute punishment, then there can be no violation of either clause; if it does, then both would be violated in the case at bar. (Id.)


VII. Punishment

A. Scope of Impact

Central to the analysis of Megan's Law is the scope of the impact that can be attributed to the legislation. There have been a few highly publicized incidents of vigilantism involving assault, arson, and death threats against sex offenders following notification. n11 [*1212] However these criminal acts cannot be included within the statutory bounds of Megan's Law. [**34] The state and county prosecutors make it clear that such actions will be prosecuted, and appear to be doing so. Indeed the notifications to organizations and the community address that prospect specifically. For example, the notifications sent out in Union, Warren, Cape May, Hunterdon, Mercer, Morris and Ocean Counties state:


Any action taken by you against this individual, including vandalism of property, verbal or written threats of harm or physical assault against this person, his family or employer will result in your arrest and prosecution for criminal acts.


Middlesex County uses that language for Tier III notifications. Some other counties have drafted similar language themselves, such as Sussex County:


... law enforcement will carefully investigate all allegations of harassment and other criminal or disorderly conduct taken by a person against a registrant, the registrant's family, or the registrant's employer and that law enforcement will vigorously prosecute where appropriate.





n11 In Washington, the home of Joseph Gallardo was burned down following community notification. See Jim Hooker, Megan's Law Has a Harsh Prototype, The Record, Northern New Jersey, Oct. 10, 1994. In New Jersey, Thomas Vicari was attacked and beaten by two men who mistakenly believed him to be the sex offender who resided at that address. See "Sex Offender Targeted in Home Attack," The Express-Times, January 10, 1995.


[**35]

On the other hand, the impact of Megan's Law cannot be limited to the act of notification itself. Defendants argue that the purpose of the statute is "'to enable the public to protect itself from the danger posed by sex offenders'" (Defendant's Br. at 12 (quoting Doe, 142 N.J. at 73)). Therefore, members of the public must take some action to protect themselves from this identified threat if this goal of the statute is to be achieved. It cannot seriously be argued that the legislature intended or expected that people would continue their behavior unmodified after receiving notification.

The acts which members of the public might take following notification include all legal actions, such as warning their children, limiting or eliminating contact with the registrant, refusing to do business with the registrant's employer, refusing to work with a registrant, legal eviction, and others. It would also include direct actions against the registrant that do not rise to the level of criminality such as picketing or boycotting businesses, name calling, ostracism of family members, discussion in the community, newspaper articles, discussion on radio talk shows, further dissemination [**36] of notice to the community, refusal to hire, and refusal to purchase property from registrant. Such actions are presented in the record developed for the cross-motions. They must, to some degree, be considered the natural and anticipated outgrowth of the legislation and implementing regulations.

Defendants further argue that the notification at Tier II should be distinguished due to its limited scope and distribution. However, as a practical matter, this Court does not find an appreciable difference between the two Tiers. Tier II notice is available to many organizations in a community, and to many people in those organizations. Although the initial distribution is limited in scope, "Tier Two notification can easily amount to the same notification as required for Tier Three" without appropriate safeguards. Doe, 142 N.J. at 35.

At present the organizations that are eligible to receive Tier II notification include those "that conduct activities involving the care and/or supervision of children such as community CrimeWatch programs, Big Brothers and Big Sisters, Girl and Boy Scouts, ... parent-teacher organizations ..., battered women's organizations, rape victim support groups [**37] and women's advocacy groups" if they request it. (Megan's Law A Guide for Community Organizations, Schools and Day Care Centers, at A-333) Schools, licensed day care centers and summer camps will automatically receive notification. (Id.)

Once the information has been received, it is intended to be distributed to the staff with instructions to maintain confidentiality. While the Court will not assume that conscientious persons would willfully violate instructions regarding confidentiality, human nature being what it is, it is doubtful that Tier II confidentiality will always be preserved. n12 [*1213] That is not to equate such breaches with "punishment," however. That consideration will be addressed hereafter. The case of E.B. provides a concrete example of what can occur when the confines of the dissemination of notice are breached. The plaintiff in that case was identified using fictitious initials; however, utilizing information about the registrant which was disclosed in open court and in newspaper accounts, the Guardian Angels organized a manhunt for the identity of E.B. Ultimately, Mr. Harold Turner discovered E.B.'s identity and disclosed it on a local radio talk show. (A-114-26). [**38] n13



n12 However, violations of the realm to which notification should be confined are neither promoted nor ordered by state authorities and courts. One jurist, the Honorable Peter Ciolino, AJSC, Bergen County, has included in his Orders a warning of contempt sanctions against those who improperly disseminate Tier II information. Because Judge Ciolino is the state-wide coordinator for classification/notification proceedings in the Superior Court, Law Division, one can properly infer that the judges assigned in other counties are aware of and would soon follow his example when the present preliminary injunction is lifted.

n13 Defendants argue, somewhat persuasively, that such actions will diminish significantly when Megan's Law is implemented, particularly as time passes and the police forces and community organizations receiving notification become more knowledgeable about their obligations. One would hope so. Private witch hunts and self-promotional demagoguery at another's expense have no place in the administration of Megan's Law.


[**39]

B. Expressed Legislative Purpose or Intent

The first factor which this Court addresses in its "punishment" inquiry is the subjective or actual intent of the legislature in passing the statute. ( Artway, 81 F.3d at 1254-56; see also De Veau v. Braisted, 363 U.S. 144, 4 L. Ed. 2d 1109, 80 S. Ct. 1146 (1960)). There is little evidence of the legislative intent, but that which does exist supports a remedial purpose for the statute. The statement of purpose in the statute reads:


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 of fenders 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. Similar sentiments [**40] were also part of the bill as introduced to the Senate. See Artway, 81 F.3d at 1264. The Court also determines that such actual legislative intent prompted the law's provisions on notification as well as registration.

The general dearth of legislative history is due to the manner in which the legislation was rushed to the floor without committee referral or debate. (Id.; see also Grall Cert., P 13). However, at this stage of the analysis, the stated purpose is sufficient to establish the subjective intent of the New Jersey Legislature. n14



n14 Although it may be appropriate to look beyond the stated legislative intent in determining the actual purpose of the statute, to do so in this instance would merely serve to duplicate the objective purpose inquiry, infra.


C. Objective Purpose

The next stage in the analysis is to examine the objective purpose of the statute to see if it arose out of the "sudden and strong passions" which the ex post facto clause is designed to combat. Fletcher v. [**41] Peck, 10 U.S. (6 Cranch) 87, 137-38, 3 L. Ed. 162 (1810). The Court will here examine the remedial purposes presented, any punitive goals necessarily implicated and whether, if the statute has mixed objectives, the deterrent purpose is a usual and necessary complement to the salutary one. Artway, 81 F.3d at 1263.

[*1214] 1. Remedial Purpose

Artway is helpful here, even though its rigid format, with successive hurdles to sustain the law, is inconsistent with Ursery. In the words of Artway,


The threshold question is thus whether a remedial purpose can explain the sanction. Only if the remedial purpose is insufficient to justify the measure, and one must resort also to retributive or deterrent justifications, does the measure become punitive. Only then can the measure "only be explained as also serving either retributive or deterrent purposes."


( Id. at 1255) (emphasis in original). The Artway court defined some of the significant terms in this part of the analysis as follows:

Because Halper occupies such a central role in the punishment inquiry, a number of explanatory observations are in order. The first is a matter of semantics: [**42] a clear understanding of the terms "retributive," "deterrent," and "remedial" is critical to applying the Halper test. We therefore explain how we think the Supreme Court is using them. Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing "justice." Deterrent measures serve as a threat of negative repercussions to discourage people from engaging in certain behavior. Remedial measures, on the other hand, seek to solve a problem, for instance by removing the likely perpetrators of future corruption instead of threatening them (De Veau), or compensating the government for costs incurred (Halper). n15


( Id. at 1255). Under Ursery, deterrence is not synonymous with punishment:


Third, though both statutes may fairly be said to serve the purpose of deterrence, we long have held that this purpose may serve civil as well as criminal goals... We recently reaffirmed this conclusion in Bennis v. Michigan, supra, at , 116 S. Ct. 994, 134 L. Ed. 2d 68 (slip op. at 10), where we held that "forfeiture serves a deterrent purpose distinct from any punitive purpose."


116 S. Ct. 2135, 135 L. Ed. 2d 549, 1996 WL 340815 *15.



n15 Ursery's limitations on the use of Halper do not affect the validity of these definitions.


[**43]

Viewed objectively, there are significant remedial goals intended and served by Megan's Law. Its primary focus is the protection of children and others from previously-convicted sex offenders, near them in the community, who have been found to have a moderate or high risk of re-offense. The tailored notification for each Tier II and Tier III offender is designed to serve that remedial goal. An objective deterrent purpose also emerges from the statutory scheme. Aware that he is registered with local authorities and that his identity has been revealed to certain segments of the community, the Tier II or III offender should be deterred from recidivism, at least in the areas where he lives and works. This "deterrent purpose of ... the law is a necessary complement to its salutary [remedial] operation." ( Artway, 81 F.3d at 1263). Accordingly, its deterrent function is best classified as predominantly civil not criminal. The "mixture of deterrent and salutary purposes" (ibid.) driving Megan's Law does not make its notification features "punishment."

No persuasive argument can be made that, even viewed objectively, the legislative purpose behind Megan's Law was retributive. It [**44] is not an instrument of "vengeance for its own sake", rather it "seek[s] to affect [a broad range] of future conduct" by registrants and the public alike. ( Id. at 1255). It has goals of preventing or at least decreasing the opportunity and incentive for a societal problem: sexual molestation and similar enumerated offenses. The means employed (Tier II and III notifications) are directly proportional to the ends which Megan's Law is designed to serve. Viewed objectively, there are no punitive, penal purposes motivating Megan's Law; it is a remedial statute.

2. Historical Analysis

Although this Court is wary of applying Austin in the case at bar, due to the Ursery decision, and although the latter also teaches that the rigid format resulting from Artway's efforts at "synthesis" was [*1215] ill-conceived, nevertheless, all informative precedent, including Ursery, instructs that in determining whether particular conduct constitutes "punishment," one should search for and examine any historical antecedents. In some cases, such as Ursery, this is a rather easy task. Citing a line of statutes and cases spanning more than 200 years, including three more recent decisions [**45] directly on point, n16 the Court in Ursery held that, historically, civil in rem forfeitures had never been considered punishment. However, the classification and notification provisions of Megan's Law measured against the Constitution's ex post facto and double jeopardy clauses have no such identical historical antecedents. While it is tempting to end the inquiry at that, declaring this factor inapplicable to the case at bar, the Court will resist that temptation, particularly in light of the considerable emphasis placed upon this issue by all parties.



n16 Various Items of Personal Property v. United States, 282 U.S. 577, 581, 75 L. Ed. 558, 51 S. Ct. 282 (1931); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235-36, 34 L. Ed. 2d 438, 93 S. Ct. 489 (1972); and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984).


The "appropriate concern in a historical inquiry is the nature of the measure itself." Artway, 81 F.3d at 1257. If the impact of the law is one [**46] that was historically regarded as punitive then it "is punishment unless the text or legislative history shows a contrary purpose." (Id.) (emphasis added).

This does not require that the same provisions existed in the law at the time of the drafting of the Constitution. Rather, the evaluation must be done through the prism of modern life and technology to determine if the measures are "sufficiently analogous to the early forms of punishment ... to label them punishment in their own right." Michelle Pia Jerusalem, A Framework for Post-Sentence Sex Offender Legislation: Perspectives on Prevention, Registration, and the Public's Right to Know, 48 Vand. L. Rev. 219, 230 (1995).

Although incarceration and fines are the primary method of punishment in modern American society, this is a relatively recent development. "Generally not until the nineteenth century were prisons used for anything but detention of prisoners awaiting trial or execution after conviction." Wolfgang, Criminology: Crime and Punishment in Renaissance Florence, 81 J. Crim. L. 567, 576 (1990). In fact, New Jersey's first state prison was not opened until 1797. Frankel, Crime Treatment in New Jersey: [**47] 1668-1934, 28 J. Crim. L. & Criminology 90, 96 (1937). Instead, many punishments relied on shaming and public humiliation to achieve their desired effect. Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357, 1360. Colonial "magistrates ... loved to enlist the community, the bystanders; their scorn, and the sinners' humiliation were part of the process." Lawrence M. Friedman, Crime and Punishment in American History 37 (1993); see also Brilliant, supra, at 1360-61 ("degradation figured largely in all contemporary [colonial] theories of punishment"). The shaming component was of such import that "authorities often dispensed with the punishment's physical component entirely: Many humiliated offenders were required simply to stand in public with signs cataloguing their offenses, a punishment that relied solely on mental anguish for its rehabilitative and deterrent effect n17." Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1225-26 (1982).



n17 "In Maine, in 1761, "Sarah Morgan, who had the effrontery to strike her husband, was ordered 'to stand with a gagg in her Mouth halfe an houre at Kittery at a Publique Town meeting & the cause of her offence writt upon her forehead, or pay 50 shillings to the County.'" Doe, 142 N.J. at 140 (Stein J., dissenting) (citations omitted).


[**48]

The example of this type of punishment which is most familiar today is the literary "Scarlet Letter" from Nathaniel Hawthorne's novel of the same name. The protagonist, Hester Pryne, was forced to wear a scarlet "A" on her clothing to display her conviction for adultery. Hawthorne described the impact the punishment had on the wearer:


" [*1216] But the point which drew all eyes, and, as it were, transfigured the wearer ... was that Scarlet Letter, so fantastically embroidered and illuminated upon her bosom. It had the effect of a spell, taking her out of the ordinary relations with humanity, and enclosing her in a sphere by herself."


Nathaniel Hawthorne, The Scarlet Letter 51 (Bantam Classic ed. 1986) (1850). This literary scarlet letter was mirrored by those of real women in colonial America "humbler in its fashioning, worn less nobly, endured more despairingly, it shone a scarlet brand on the breasts of those real Hesters n18." A. Earle, Curious Punishments of Bygone Days 86 (1896).



n18 Persons convicted of theft, robbery and forgery were also required to wear scarlet letters as evidence of their crimes. Friedman, supra, at 75.


[**49]

Certainly the notification provisions do not actually require registrants to wear a "Scarlet S," but the question before the Court is whether, by analogy, the provisions are the same. The purpose of requiring the offender to wear the brand or letter was to make his crime known to all citizens that he might encounter. Similarly, Megan's Law informs those likely to encounter the offender, assisted by the technological advances of photography and xerographic reproduction. Once the citizenry has been made aware of the offender's crimes, it may well be anticipated that they will greet him with ostracism and opprobrium. These colonial punishments were not without a remedial function, as they could warn individuals about dealing with a person of poor moral character. "The message was that this offender was not likely to mend his ways ...." Friedman, supra, at 40.

These historical punishments typically involved the physical participation of the offender. Megan's Law notification provisions, as distinguished from registration, require no such participation by the registrant. It could be argued that this is simply a function of modern technology rather than a practical difference [**50] in effect, which is the present focus of inquiry. Colonial magistrates had no other means to identify the individual other than through public display or marking. Today, a photocopied notice can serve the same purpose with greater efficiency.

Nor should the secularization of modern society lead one to underestimate the gravity of the offenses for which the shaming punishments were meted out. In colonial society, adultery and other moral offenses were significant infractions. Shaming was also part of the punishment for offenses covered under Megan's Law such as rape n19.



n19 One rapist in colonial New Jersey was sentenced to be publicly flogged in various places throughout the community.


thou shalt be whipt this day betwixt the howers of two and three in the afternoon upon thy naked body at a Carts tayle, from the house of John Butcher in this Towne, to the house where Abraham Senior inhabitteth and from hence on the River side to the High Street, and from thence downe to the Markett house ...


This sentence was repeated "every third Seventh day" for three months. For the next nineteen months thereafter, the offender was to be "brought (when thou canst be found within this Province) to each and every Quarterly Sessions at Burlington within said tyme, and then and there to be whipt in manner and forme as afore is mentioned." H. Weiss & G. Weiss, An Introduction to Crime and Punishment in Colonial New Jersey 58 (Past Times Press 1960).


[**51]

The resulting impact of Megan's Law may also be analogous to another form of colonial punishment: banishment. In order a avoid the censure of the law, some registrants have left the state. (E.g. Alexander Artway and Carlos Diaz). This was also a function of the punishment for colonial rapists who could avoid future whippings by leaving the Province.

Due to the nature of the notice provided to the public, attention also focuses on the registrant's employer. There have been numerous instances where registrants have lost their jobs following notification. (See, e.g. Plaintiffs' App. at A-6-10, A-82-90, A-150) This was also a function of branding, which"... would preclude those who were branded from finding employment and thus "'render[] them desperate.'" Brilliant, supra, 1989 Duke L.J. at 1361 (quoting G. Ives, A History of Penal Methods 53 (1914)).

It is well documented that ostracism and opprobrium are consistently among the effects of community notification. (See Plaintiffs' [*1217] App. at A-1-156). They are not unanticipated results of community reaction to a known sex offender.

There are, however, critical, dispositive differences between Megan's Law and the [**52] historical shaming punishments set forth above. First, the potential ostracism and opprobrium that may result from a classification at Tier II or Tier III is not inevitable, as was with the person whipped, pilloried or branded in public. Secondly, whether viewed subjectively or objectively, Megan's Law is not punitive in purpose. Its text (particularly as amplified by the requirements implemented under Doe v. Poritz) and its legislative history (though meager) contradict any alleged historical punitive purpose. Artway at 1257. Megan's Law is not the product of a lust for retribution; it is a measured attempt to achieve remedial with attendant deterrent goals. The shaming punishments of colonial times were intended to and did visit society's wrath directly upon the offender; Megan's Law has different, protective purposes. Third, the shaming punishments employed contemporaneous societal reaction as an integral part of the sentence for the crime committed. Whether the impact of Megan's Law is or is not punishment, no party to the case at bar has argued (even under double jeopardy principles) that an offender is being sentenced or resentenced in classification proceedings. Those [**53] are separate proceedings involving a separate risk assessment. Even if this latter argument emphasizes form over substance, nevertheless it demonstrates a distinction between the public shaming sentences of the past and the operation of Megan's Law. Finally, the historical punishments tendered by the plaintiffs have no counterpart in the due process procedures established to tailor carefully the resulting classification and scope of notification for each Tier II or III designee. Those procedures are now part of the "text" of the law which can and does demonstrate a nonpunitive "purpose" even if shaming punishments comprise a valid historical analogue. Artway at 1257.

Moreover, there are other historical remedial measures more comparable to Megan's Law than the stocks, public whippings and scarlet letters.

A government has always had the authority to warn the community about the presence of dangerous persons, and such warnings have never been understood as imposing unconstitutional "punishment." For example, authorities have used "wanted" posters since the earliest days of the republic, not to penalize the person depicted, but to protect the public and help apprehend that person. [**54] In addition to providing identifying information concerning fugitives from justice, the FBI's wanted posters also warn, if appropriate, that the fugitives are "extremely dangerous." See FBI Wanted Posters, Exh. 20. Cf. PA388-90 (sample of community notices). n20



n20 The analogy is not perfect, of course, since the whereabouts of a fugitive is usually unknown and that of a Tier II or III designee is disclosed in the notice; however, the protective remedial purposes are similar.


The FBI also uses television to attract attention to its Ten Most Wanted list, however, notification under Megan's Law is much more limited. The state is not permitted to use press releases or radio announcements in conducting community notification. (Guidelines, Exh. 19 at 15).

The law enforcement community's longstanding tradition of community notification for remedial purposes continues to this day. The Bureau of Prisons warns members of the community when prisoners escape into their midst, not only to aid in their apprehension, [**55] but also to allow citizens to protect themselves. Further, federal statutes enacted within the last 10 years require law enforcement officials to warn federal crime victims of an offender's possible parole, escape, furlough, or any other form of release. See 42 U.S.C. § § 10606(b)(7), 10607(c)(3)(E) and (G), (c)(5)(A) and (B).

The State of New Jersey has similar procedures. When an offender is paroled, the public is given notice about an offender and his crime. Since 1979, the Parole Board has been required to give public notice prior to considering the release of any inmate. N.J.S.A. 30:4-123.48, 30:4-123.45. This information is provided not only to criminal justice agencies but also to "news organizations." [*1218] (Ibid.) In addition, it has been New Jersey policy since 1989 to provide additional notice to county prosecutors and crime victims at the time of release from prison. See N.J.S.A. 52:4B-44 (statute authorizing notice to ensure the rights of crime victims).

Neither in the case at bar, nor elsewhere to this Court's knowledge, has it been argued that any of the above forms of notification impose punishment as contemplated by the double jeopardy and ex post facto clauses. [**56] The community notification provisions of Megan's Law resemble the above forms of notification, because it too is designed to help protect the public from persons who present a substantial risk of violence or similar dangerous behavior.

Finally, before turning to an analysis of the effects of notification and its predictable community reaction, the Court notes that Kurth Ranch has little relevance in the case at bar. That case, involving the alleged misuse of a tax statute for actual penal purposes, is best confined either to its specific setting or, at least, to a situation where a statute is significantly diverted from its ostensible purpose. Also, because, as developed earlier, Megan's Law is a remedial statute with at most a deterrent objective "incidental" to its "salutary purpose", it would pass muster under Kurth Ranch. Artway, 81 F.3d at 1266.

3. Effects

Although, once again, Ursery casts considerable doubt upon whether a separate "effects" hurdle must be scaled in order for Megan's Law to withstand the present constitutional attack, Ursery itself suggests that both purpose and effect are considerations in an ex post facto or double jeopardy analysis. [**57] It is also not entirely clear whether the borrowing of Morales to establish an effects test for Megan's Law is consistent with Ursery. See also Artway v. Attorney General of the State of New Jersey, 83 F.3d 594, 595-98 (3d Cir. 1996) (Opinion Sur Denial of Rehearing In Banc, Alito, J. dissenting). Nevertheless, because application of Artway's effects test demonstrates that the classification and notification provisions of Megan's Law are constitutional, this Court does not hesitate to apply it.

A statute may also constitute punishment if the effects have a powerful enough "sting." California Department of Corrections v. Morales, U.S. , 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995). "If the negative repercussions -- regardless of how they are justified -- are great enough, the measure must be considered punishment." Artway, 81 F.3d at 1263. Whether the sting is great enough "is a matter of degree." ( Id. at 1261 (quoting Morales, U.S. , 115 S. Ct. at 1603)).

While the "effects" test may be implicit in the Supreme Court's Opinion in Morales, it arose in a context in which a definition of punishment was not directly at issue. [**58] The sanction in Morales was incarceration, and the Court focused on whether the "effect" of new legislation delaying parole hearings was to increase or extend the acknowledged punishment of incarceration. 131 L. Ed. 2d 490 at 497 n.7. The Court held that such an alleged effect was "speculative and attenuated" where the legislation was carefully tailored and the amendment applied "only to a class of prisoners for whom the likelihood of release on parole is quite remote." 131 L. Ed. 2d at 597. In fact the Morales Court did not find it necessary "to discuss Austin and its progeny because the facts of Morales involved imprisonment." Artway, 81 F.3d at 1261.

Under such circumstances, at the very least, this Court should apply the effects test only in circumstances where, although all other considerations do not support ex post facto or double jeopardy arguments, the effects of subsequent legislation, if applied retroactively, would be predictably severe.

As discussed above, the only effects which should be considered under the Court's analysis are those flowing out of the legal actions of notice recipients. Specific instances of such community reaction are a matter [**59] of record in this case and have been referred to previously. As such, it is unlikely that those effects would be appreciably greater than those measures which have been found not to be punishment. See, e.g., De Veau v. Braisted, 363 U.S. 144, 4 L. Ed. 2d [*1219] 1109, 80 S. Ct. 1146 (1960) (forbidding work as a union official to former convicts); Hawker v. New York, 170 U.S. 189, 42 L. Ed. 1002, 18 S. Ct. 573 (1898) (revocation of a medical license); Mahler v. Eby, 264 U.S. 32, 68 L. Ed. 549, 44 S. Ct. 283 (1924) (deportation); Flemming v. Nestor, 363 U.S. 603, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960) (termination of Social Security benefits). Even if some of the effects described in the case at bar might be considered slightly more severe than those examples, they do not demonstrate such uniform severe effects which as a matter "of degree" would constitute punishment inflicted on the plaintiffs either as a class or individually. Artway, 81 F.3d at 1263.


VIII. Due Process

Plaintiffs also challenge Megan's Law on the grounds that the classification process fails to comport with procedural due process. No state shall "deprive any person of life, liberty, or [**60] property, without due process of law." U.S. Const. amend. XIV, § 1. The initial question is whether there is a liberty interest under federal or state law which is implicated.

The Supreme Court of New Jersey found there to be a liberty interest under state law in Doe. Doe, 142 N.J. at 104-106. Limitations on state-created interest alone is sufficient to trigger due process. Hewitt v. Helms, 459 U.S. 460, 469-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).

The Doe Court also recognized a federally-protected liberty interest implicated by Megan's Law and this Court agrees. Doe, 142 N.J. at 100-104. "Reputation alone, apart from some more tangible interests such as employment, is [not] either 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause." Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). Instead, the action must alter "'a right or status previously recognized by state law,' for it is that 'alteration, officially removing the interest from the recognition previously afforded by the State, which [the Court has] found sufficient to invoke the procedural guarantees contained in the [**61] Due Process clause of the Fourteenth Amendment.'" Doe, 142 N.J. at 102 (quoting Paul, 424 U.S. at 711).

Paul has been interpreted to require "stigma plus" some other impediment to involve a liberty interest. Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994); see also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987); Borucki v. Ryan, 827 F.2d 836, 842-43 (1st Cir. 1987). The Doe Court found the "harm to plaintiff's reputation, when coupled with the incursion on his right to privacy ... constitutes a protectible interest." Doe, 142 N.J. at 103. Such a result may also be reached by coupling the reputational damage with the loss of employment opportunities n21 or, more directly, the continuing legal status as a registrant and the duties imposed as a result.



n21 See, e.g. Fitzgerald v., Mountain Laurel Racing, Inc., 607 F.2d 589, 602 (3d Cir. 1979), cert. denied, 446 U.S. 956, 64 L. Ed. 2d 814, 100 S. Ct. 2927 (1980) (loss of clients was cognizable under the Due Process Clause).


[**62]

Once a liberty interest has been discerned, the degree of process required is flexible and dependent upon the circumstances of a given case. Zinermon v. Burch, 494 U.S. 113, 127, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990); Mathews v. Eldridge, 424 U.S. 319, 334, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). There must be sufficient notice and a meaningful opportunity to be heard. U.S. v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987); Kahn v. U.S., 753 F.2d 1208, 1218 (3d Cir. 1985).

A. Notice

In fashioning its modifications to Megan's Law, the Doe court stated that "in some cases it may be impossible as a practical matter to give such notice, or to give it timely, and in those cases it may be dispensed with." Under the Attorney General's Guidelines, notice may be dispensed with when the "Prosecutor's Office does not receive notification of the release of a person determined to be a Tier III offender until after the date of release ... for example, when an offender who has been civilly committed [*1220] is released on short notice by a judge." (Guidelines For Law Enforcement for Notification to Local Officials and/or the Community of the Entry of a Sex Offender Into the Community [**63] A-327). The prosecutor must still seek judicial approval of notification without notice prior to its dissemination. (Id.)

Although the exigency presented in some cases may be questionable, this guideline, as a general proposition, does not offend the notice requirement. In the vast majority of cases, timely notice is provided to the registrant prior to notification. (Id.; see also, e.g. Plaintiffs' App. at A-158, A-162, A-188, A-194).

B. Hearing

The judicial hearing itself will now be evaluated. Four factors must be considered in analyzing the procedure: (1) the importance of the private interest; (2) the length or finality of the deprivation; (3) the risk of government error; and (4) the magnitude of the government interest involved. Mathews, 424 U.S. at 334-35. As has already been discussed above, there is an important private interest implicated here. The deprivation is for a minimum of 15 years to life. There is also a public interest of great magnitude, the threat posed by sex offenders in the community. It is the application of the third prong of Mathews which requires greater scrutiny. Upon a complete review of this issue, the Court determines that [**64] the risk of government error under the current statutory and regulatory scheme is not so high that it denies due process to a sex offender subject to classification/notification proceedings.

The Supreme Court of New Jersey has laid out a comprehensive scheme for judicial review of Tier level determinations and method of notification. The Court determined that any person covered by the law can seek judicial review of a Tier II or Tier III classification and the manner of notification prior to actual notification. Under Megan's Law, pursuant to the court's decision:


(1) except in exigent circumstances, offenders subject to notification will receive written notice at least two weeks in advance, detailing the proposed Tier level and the specific manner proposed for notification;


(2) the offender has the right to object to notification by filing a simple application with the court in his own county;


(3) the offender is entitled to an automatic stay of notification if he files a timely objection;


(4) the offender has the right to be represented by retained counsel, or, if he cannot afford it, to have free counsel appointed by the court;


(5) the court must immediately [**65] set a date for a pre-notification court hearing;


(6) the offender must receive extensive prehearing discovery of "all papers, documents, and other materials, including the prosecutor's findings and statement of reasons for the level and manner of the proposed notification;"


(7) the offender must receive a hearing before a neutral fact-finder, a state trial court judge;


(8) the offender's privacy is protected because the hearing must be in camera;


(9) at the hearing, the State must present evidence establishing a prima facie case justifying the proposed Tier level and manner of notification;


(10) the offender then has the opportunity to rebut the State's prima facie case, which he must do by a preponderance of the evidence;


(11) the rules of evidence do not apply at the court hearing;


(12) notification cannot occur unless it is approved or meets the requirements set by the court; and


(13) if the court allows notification, the offender may seek to stay notification "to allow time for application to an appellate court."


Doe v. Poritz, 142 N.J. at 30-35.

1. Registrant Risk Assessment Scale

The Attorney General has designed [**66] a Registrant Risk Assessment Scale ("RRAS") to be utilized by the county prosecutors in determining [*1221] the appropriate Tier level for a given registrant. A blank copy of the RRAS is annexed hereto as Exhibit A. The RRAS has four categories: seriousness of offense, offense history, characteristics of offender and community support, with 13 individual indices within them. Due to the weighting of factors, past conduct can result in 90 of the maximum 111 points in the scale. Artway, 81 F.3d at 1266 n.30. The prosecutor enters the information about the offender in the scale and generates a numerical score. Based upon the score, the registrant will fall into one of the Tier ranges.

The Supreme Court of New Jersey has described the central inquiry of "risk of re-offense" in Doe.


The only issue for the court on the Tier level of notification is the risk of reoffense. In that sense the factors of the Guidelines noting the characteristics of the prior offenses or the offender are relevant only to the risk of reoffense, i.e., the likelihood of its occurrence. That is the clear intent of the statute."


Doe 142 N.J. at 32-33. Plaintiffs argue that the RRAS, through its [**67] weighting of the indices, compels the "risk" to be defined by the severity of the registrant's past acts; therefore, if the nature of the acts previously committed is extensive enough, the RRAS may tier the registrant beyond his actual risk of reoffense. Plaintiffs, however, misconceive the "risk of re-offense" inquiry. The New Jersey Legislature has determined that all sex offenders have a likelihood of recidivism sufficiently significant to warrant the enactment of Megan's Law. n22 The inquiry is not directed to the actual probability of re-offense but rather to a calculation of relative or comparative risk of re-offense from which results a determination of either "low" (Tier I), "moderate" (Tier II), or "high" (Tier III) risk for a particular offender. Doe makes this clear distinction.


All offenders required to register are, by statute, subject to at least Tier One notification, meaning that no matter how low the risk of reoffense, the Legislature has concluded Tier One notification is required.

* * *

We note further that quite obviously none of these standards or classes suggests the court must make a finding of likelihood of reoffense, for the [**68] Legislature did not impose either Tier Two or Tier Three notification only when it was probable that reoffense would occur, but rather only when the risk -- however quantified -- was sufficient to warrant such notification. The quality of the offense -- a sex offense -- undoubtedly led to this legislative conclusion that notification was warranted even when reoffense was not probable, and that legislative conclusion is unassailable in any proceedings before the court. Therefore the probability of reoffense on the part of moderate or high-risk offenders is not the issue before the court, but rather the relatively greater risk of reoffense compared either to the low-risk offender class or the moderate-risk offender class.


( Id. at 34). With this understanding of the nature of classification proceedings and the role therein played by the RRAS, it cannot be said that there is such a "risk of error" in determining an offender's relative risk of re-offense as to deprive him of procedural due process. Mathews v. Eldridge, 424 U.S. 319, 344, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). Indeed the scheme established for classification proceedings under Megan's law is comparable to [**69] that found adequate in Mathews.



n22 Statistical and other empirical evidence regarding recidivism rates for sex offenders varies widely. There is support for nearly every point of view. It is not this Court's duty, however, to question the Legislature's choice of support for its conclusions.


Plaintiffs also argue that a failure to provide for reduction of the RRAS score for indicia of successful rehabilitation exacerbates the overstatement of the risk of re-offense. Where the relevant inquiry is one of relativity, however, this argument is not persuasive. It also assumes a right to have the thresholds for moderate and high risk remain at 37 and 74 respectively even if the requested deduction were put in place. No offender has such a right; certainly not one that implicates constitutional considerations. Those thresholds could reasonably be lowered [*1222] if the deductions which plaintiffs espouse were allowed. Finally, several aspects of rehabilitation are addressed in the RRAS, and if those findings are favorable [**70] to the offender his score is not increased as it would be were that not the case.

2. Proceedings Before the State Court

The proceedings resulting in classification of a sex offender at Tier I, II or III are not criminal. No valid argument can be made, for example, that the registrant has a right to a jury trial in the review of the county prosecutor's classification decision. Furthermore, even though civil in nature, no jury trial right in that realm exists for such a proceeding. The legislative/regulative pattern that has emerged in the wake of Doe v. Poritz is practically sui generis. n23 It is most analogous to an administrative proceeding encompassing judicial review. Under such circumstances, particularly since the consequences of classification are not punishment as such (supra.), due process protections are not as extensive as those required in a plenary criminal or civil trial. See Mathews v. Eldridge, supra., approving a procedure entailing a hearing after an initial adverse administrative determination. If the format adopted by the State of New Jersey provides at least the minimum due process required in such classification proceedings this Court must sustain [**71] it, even if greater safeguards for the rights of a registrant might have been adopted. Stated otherwise, this Court is not here to analyze the wisdom of the State's chosen procedures, only their constitutionality. The format established by the State of New Jersey, in a joint effort of its legislative, executive and judicial branches, provides due process to the registrant. After receiving notice of the prosecutor's classification, the offender has the right to be heard promptly before a specially assigned judge of the Superior Court, Law Division. While the scope of state judicial review has limitations, the rules of evidence do not apply (to evidence presented by either party), and the registrant must prove by a preponderance of the evidence that his Tier classification is erroneous. These rules are well within the boundaries of due process requirements for such proceedings. One must also keep in mind that the most critical element of a registrant's classification: his prior conviction(s), has already been proven either by his own admission of guilt or at a trial in which the State of New Jersey bore the burden of proof beyond a reasonable doubt.



n23 The Doe Court described the Superior Court's review as a "summary proceeding" (Doe, at 30-31) although the procedures described in Doe and later implemented do not mirror those of N.J.R. 4:67-1 et seq.


[**72]

Furthermore, even though the RRAS heavily weights the nature of the registrant's past offense(s), this is not violative of constitutional due process. Supra. This scale represents a permissible state choice. More particularly, although the prior offenses are heavily weighted, a high "score" is required to place a registrant at Tier III. The statistics presented to this Court show that only about 5% of registrants subjected to Tier classification have been classified at Tier III where the greatest potential threat to the registrant's liberty interest is present. This does not demonstrate a grossly excessive weight accorded to past offenses on the RRAS scale. n24



n24 The Court has also been advised that there are classification cases presently before the Supreme Court of New Jersey directly challenging this feature of the RRAS. Without either abdicating its responsibility here or invoking any formal doctrine of abstention, this Court notes that the Supreme Court of New Jersey is a very appropriate forum in which that issue can and should be addressed. These developments further demonstrate that Megan's Law is affording procedural due process to members of the plaintiff class.


[**73]

The record before this Court also demonstrates that in a significant number of proceedings brought before the Superior Court, the Tier classification derived by the county prosecutor has been reduced by the reviewing judge. This is but further evidence that due process is being afforded to persons subject to Megan's Law.

Plaintiffs also attack the obligation that an offender must overcome the prosecutor's prima facie case by a preponderance of the evidence. It is neither unusual nor impermissible to assign the burden of proof to a party who initiates a court proceeding to [*1223] overrule or modify the decisions or actions of another. Stated otherwise, the offender who initiates a proceeding before the Superior Court for review of his Tier classification is not unlike a plaintiff in a civil action, one who traditionally bears the burden of proof by a preponderance of the evidence. Furthermore, under Megan's Law, the prosecutor must establish a prima facie case before the offender is required to go forward. Although both appropriate and understandable in such a situation, this requirement placed upon the prosecutor affords to the offender a procedural benefit not enjoyed by a traditional [**74] civil plaintiff. At the very least, the scheme established by the Doe Court is within the "flexib1e" boundaries of procedural due process recognized in Mathews.

Other court decisions demonstrate the adequacy of Megan's Law hearings. In Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), the Court set forth the basic requirements for a state parole revocation hearing. There was no express allocation of the burden of proof; however, the Court stated, "The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." ( Id. at 488). This language suggests that there is at least a burden of production assigned to a parolee in such a hearing. In addition, the Supreme Court added, "It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." ( Id. at 489). If a hearing of this nature satisfies fourteenth amendment due process requirements for a parolee faced with a [**75] return to jail, the proceedings under Megan's Law are adequate for a person facing less drastic consequences. See also Kahn v. United States, 753 F.2d 1208 (3d Cir. 1985), acknowledging and applying the Mathews tests in upholding against a fifth amendment due process attack certain provisions in the Internal Revenue Code providing for payment of 15% of an assessed penalty prior to any administrative hearing.

For the reasons set forth immediately above, the Court determines that defendants are entitled to summary judgment dismissing plaintiffs' claims that the Tier classification procedures of Megan's law violate the fourteenth amendment's Due Process Clause.

CONCLUSION

The Court has addressed above the facts of record and legal principles which it has determined are material to the adjudication of the pending summary judgment motions. Several other arguments have been presented to the Court in the numerous briefs, exhibits, affidavits and oral arguments in this matter. Any not addressed expressly herein have nevertheless been fully considered.

Additionally, in re-examining the foregoing Opinion, this Court concludes that although Ursery affected the approach [**76] employed in analyzing Megan's Law, the result in this case would be the same even under the more rigid formula of Artway that requires one to leap over the hurdles which that Opinion erects on the track to the finish line. This Court presents this clarification because it may be of some importance to a reviewing court.

Summary judgment is entered for the defendants upon each Count of the plaintiff class's Second Amended Complaint. Those claims are dismissed with prejudice. Plaintiffs' motions for summary judgment are denied. Because the plaintiffs have been represented by the Office of the Public Defender, no taxable costs will be imposed; all parties are to bear their own. At oral argument, plaintiffs' counsel requested a stay of this Court's decision, should it be adverse to his clients. That application is denied; however, pursuant to 28 U.S.C. § 1651 and its inherent powers, this Court extends its preliminary injunction herein, in all respects, to 12:00 noon, July 9, 1996, in order to afford to the plaintiff class the opportunity to initiate an appeal and seek interim relief before the United States Court of Appeals for the Third Circuit. Finally, when that preliminary injunction [**77] expires, the security posted by the plaintiffs pursuant to Fed. R. Civ. P. 65(c) will be returned. Despite this Court's ultimate decision in favor [*1224] of the defendants, it could not conceivably be argued that they were "wrongfully enjoined or restrained" by the preliminary injunction. (Id.) That injunction was properly granted and continued; indeed it was essential to the preservation of the status quo and the rights of all parties pending final adjudication of the many issues in this action. An Order reflecting the foregoing decisions accompanies this Opinion.

JOHN W. BISSELL

United States District Judge


DATED: July 1, 1996

ORDER

For the reasons set forth in the Court' Opinion filed herewith,

It is on this 1st day of July, 1996, ORDERED that:

1. Defendants' motion for summary judgment upon each Count of plaintiffs' Second Amended Complaint be and it hereby is granted, and plaintiffs' Second Amended Complaint be and it hereby is dismissed, with prejudice;

2. Plaintiffs' motions for summary judgment be and they hereby are denied;

3. This matter is hereby dismissed without imposition of taxable costs; all parties are to bear their own;

4. Plaintiffs' application [**78] for a stay of this decision be and it hereby is denied;

5. The preliminary injunction previously entered herein, as set forth in this Court's Order of January 26, 1996 and extended by subsequent Orders, be and it hereby is extended to 12:00 noon, July 9, 1996; and

6. Upon the expiration of said preliminary injunction, all security posted with this Court pursuant to Fed. R. Civ. P. 65(c) shall forthwith be returned to the plaintiffs.

JOHN W. BISSELL

United States District Judge