A.A. v. State , 384 N.J. Super. 481 ( 2006 )

FISHER, J.A.D.,

concurring.

I

Article IV, Section 7, Paragraph 12 (hereafter Paragraph 12) of the New Jersey Constitution enables the Legislature to “authorize by law the disclosure to the general public of information pertaining to the identity, specific and general whereabouts, physical characteristics and criminal history of persons found to have committed a sex offense.” This constitutional amendment also purports to preclude any state constitutional challenge by declaring that any legislation so enacted will be considered lawful “[njotwithstanding any other provision of this constitution and irrespective of any right or interest in maintaining confidentiality.”

Paragraph 12 was adopted by the people of this State at the 2000 general election. On July 23, 2001, the Legislature enacted the Sex Offender Internet Registry Act (Internet Registry Act), N.J.S.A. 2C:7-12 to -19. Soon thereafter, plaintiffs filed a complaint in federal court seeking invalidation of the Internet Registry Act. The district court denied plaintiffs’ motion for a preliminary injunction except that the court determined that the registry must exclude certain information regarding plaintiffs’ whereabouts. A.A. v. New Jersey, 176 F.Supp.2d 274 (D.N.J.2001). The court of appeals held that plaintiffs were not entitled to interlocutory injunctive relief and directed, on remand, that the relief previously granted to plaintiffs be vacated. A.A. v. New Jersey, 341 F.3d 206 (3rd Cir.2003). Later, the district court granted plaintiffs’ motion for a voluntary dismissal.

On January 2, 2004, plaintiffs filed a complaint in the Law Division, contending that the Internet Registry Act violates various federal and state constitutional provisions. And, because Paragraph 12 purports to shield the Internet Registry Act from state constitutional attack, plaintiffs also asserted in their complaint that Paragraph 12 violates the federal equal protection clause. The trial judge granted the motion to dismiss and plaintiffs appealed.

In affirming the dismissal of plaintiffs’ complaint, my colleagues have concluded (1) that the Internet Registry Act does not violate the federal ex post facto¹² and double jeopardy¹³ clauses; (2) that Paragraph 12 “trumps” all the state constitutional arguments marshaled by plaintiffs in their attack on the Internet Registry Act; and (3) that Paragraph 12 does not violate the federal equal protection clause.¹⁴ I agree that we are constrained to conclude that plaintiffs’ federal ex post facto and double jeopardy arguments are without merit and that Paragraph 12, if valid, “trumps” all plaintiffs’ state constitutional contentions, but I respectfully disagree that it is necessary that we consider whether Paragraph 12 violates the federal equal protection clause.

First, like the majority, I agree that the Supreme Court of the United States has determined that internet registry acts like that enacted by our Legislature do not violate the federal ex post facto and double jeopardy clauses. See Smith v. Doe, 538 U.S. 84, 89-91, 123 S.Ct. 1140, 1145-46, 155 L. Ed.2d 164, 174-76 (2003); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4-8, 123 S.Ct. 1160, 1162-65, 155 L.Ed.2d 98, 102-05 (2003). Since we are bound by those rulings, I agree there is no merit to plaintiffs’ federal constitutional attacks on the Internet Registry Act and that we are obligated to affirm the dismissal of those portions of plaintiffs’ complaint.

Second, I agree that the only fair interpretation of Paragraph 12 is that its purpose and intent is to disable all the state constitutional rights possessed by sex offenders insofar as they may apply to any notification laws that our Legislature may enact.

And third, although I do not agree with my colleagues’ disposition of plaintiffs’ federal equal protection argument, I nevertheless join in affirming the judgment of the trial court because I believe such a ruling is not necessary to our disposition of this appeal. That is, rather than consider whether Paragraph 12 passes federal equal protection muster, I believe we should first determine whether there is merit to the state constitutional arguments posed by plaintiffs in their attack on the Internet Registry Act, which Paragraph 12 was designed to bar. Since I believe the jurisprudence developed in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), to which we are bound, requires our acknowledgement that the Internet Registry Act does not violate state constitutional ex post facto,¹⁵ double jeopardy¹⁶ and privacy¹⁷ rights, I would not reach the issue posed in the opening sentence of the majority opinion. I offer the following in further explanation of my views.

II

Paragraph 12 was adopted to alleviate the concerns harbored by the Legislature that the judicial branch might find a state constitutional basis for invalidating in whole or in part an internet registry act.¹⁸ Its opening phrase (“Notwithstanding any other provision of this constitution and irrespective of any right or interest in maintaining confidentiality”) unmistakably reveals the legislative intent, and the intent of the people who embraced it at the 2000 general election, to have Paragraph 12 act as a deus ex machina to rescue all parts of the Internet Registry Act from state constitutional attack.

In considering the issues presented in this appeal, my colleagues have concluded that we must first consider the constitutional validity of Paragraph 12 and only upon its failure to pass constitutional muster should we consider the state constitutional arguments asserted by plaintiffs in their attack on the Internet Registry Act. I respectfully disagree with my colleagues’ approach because I do not find any state constitutional infirmity in the Internet Registry Act that requires the application of the rights-stripping provision of Paragraph 12. See Donadio v. Cunningham, 58 N.J. 309, 325-26, 277 A.2d 375 (1971) (“[A] court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of the litigation.”). See also In the Matter of N.J. Amer. Water Co., 169 N.J. 181, 197, 777 A.2d 46 (2001); O’Keefe v. Passaic Valley Water Comm’n, 132 N.J. 234, 240, 624 A.2d 578 (1993); Green Township Educ. Ass’n v. Rowe, 328 N.J.Super. 525, 531, 746 A.2d 499 (App.Div.2000).

The controversy regarding Paragraph 12’s constitutionality is relevant only to the extent that this constitutional amendment potentially serves to eradicate plaintiffs’ right to assert state constitutional rights in attacking the validity of the Internet Registry Act, or any future legislation falling within its scope. I believe plaintiffs’ state constitutional claims lack substance and, because they lack substance, I would conclude it is unnecessary that we consider the more momentous question of whether the people of New Jersey could amend their constitution to deprive, in this context, a class of citizens of all state constitutional rights without running afoul of the federal equal protection clause. Only when, if ever, the Legislature enacts laws that would infringe plaintiffs’ pre-existing state constitutional rights should we consider whether Paragraph 12 violates the federal equal protection clause.

Plaintiffs’ state constitutional claims are, in essence, based upon their argument that the Internet Registry Act makes available personal information, including their present whereabouts, to an audience far greater than necessary to meet the objectives of this legislation. As a result of the enormous class of persons now able to learn of their whereabouts, plaintiffs assert that the intent of the Internet Registry Act, as well as its likely consequences, is to render them outlaws, to deprive them of all rights, and, in essence, requires that they wear an electronic scarlet letter, expressive of their past crimes and visible to anyone in the world with internet access and the desire to look. Since this court is governed by existing jurisprudence on these points, I believe we are bound to recognize that, notwithstanding plaintiffs’ forceful arguments, their state constitutional ex post facto, double jeopardy and right of privacy claims are without merit.

A. The Ex Post Facto and Double Jeopardy Claims

I agree with plaintiffs that the broad availability of information authorized by the Internet Registry Act suggests that the stigma imposed is not just regulatory but instead represents a punitive consequence prohibited by the ex post facto clause. However, by the same token, I am obligated to recognize that we are not writing on a blank slate. In Doe v. Poritz, supra, 142 N.J. at 42-43, 662 A.2d 367, the Court held that our interpretation of the state constitutional ex post facto clause must follow the manner in which the federal ex post facto clause is interpreted. See also State v. Muhammad, 145 N.J. 23, 56-57, 678 A.2d 164 (1996); Auge v. N.J. Dep’t of Corrections, 327 N.J.Super. 256, 263, 743 A.2d 315 (App.Div.), certif. denied, 164 N.J. 559, 753 A.2d 1152 (2000). Since the Supreme Court of the United States determined that Alaska’s similar internet registry act did not violate the federal ex post facto clause, Smith v. Doe, supra, 538 U.S. at 105-06, 123 S.Ct. at 1154, 155 L. Ed.2d at 185, it necessarily follows that we should also construe the state constitutional ex post facto clause in the same way.

It also follows, for essentially the same reasons, that plaintiffs’ state double jeopardy argument must fall, since this clause applies only to criminal punishment and not civil regulation. See, e.g., Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 493, 139 L. Ed.2d 450, 458-59 (1997); Doe v. Poritz, supra, 142 N.J. at 70-71, 662 A.2d 367. As in the ex post facto context, our courts have concluded that the protections afforded by the state double jeopardy clause are co-extensive with those provided by the federal double jeopardy clause. See State v. Widmaier, 157 N.J. 475, 490, 724 A.2d 241 (1999); Auge, supra, 327 N.J.Super. at 263, 743 A.2d 315.

B. The Right of Privacy Claims

I would conclude that Doe v. Poritz requires that we reject plaintiffs right of privacy claim. Although the right of privacy has many strands, plaintiffs’ privacy claim chiefly rests upon the contention that the Internet Registry Act violates their right to be free from the State’s disclosure of private facts about them.

In considering the extent of the federal constitutional right of privacy in this regard, our Supreme Court has recognized that the information which could be disseminated through application of the then-existing registration laws was “readily available to the public” and thus not within “the ambit of constitutional protection.” Doe v. Poritz, supra, 142 N.J. at 79, 662 A.2d 367. See also Doe v. City of New York, 15 F.3d 264, 268 (2d Cir.1994) (“[A]n individual cannot expect to have a constitutionally protected privacy interest in matters of public record.”). The very information that is disseminated on the Internet regarding these plaintiffs was recognized by the Court as being available to the public in other locations. Doe v. Poritz, supra, 142 N.J. at 79-81, 662 A.2d 367. And, although the Court acknowledged that constitutional privacy protection may be afforded to available information when transformed from “scattered ... bits of information” into a “compilation of otherwise hard-to-obtain information,” id. at 85-86, 662 A.2d 367 (quoting United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764, 109 S.Ct. 1468, 1477, 103 L. Ed.2d 774, 790 (1989)), the Court held that the state interest in public disclosure of such information substantially outweighs plaintiffs’ interest in privacy, explaining in part:

First, the information requested is not deserving of a particularly high degree of protection. We are not dealing with thoughts and feelings revealed in the course of psychiatric treatment, [citing Ms. B. v. Montgomery Cty. Emerg. Serv., Inc., 799 F.Supp. 534, 538 (E.D.Pa.1992) aff'd, 989 F.2d 488 (3rd Cir.), cert. denied, 510 U.S. 860, 114 S.Ct. 174, 126 L. Ed.2d 133 (1993)], medical information in genera], [citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3rd Cir.1980)], or medical information regarding HIV status, Doe v. Borough of Barrington, 729 F.Supp. 376, 384 (D.N.J.1990). Plaintiff, therefore, can claim only a most limited expectation of privacy in the information to be disseminated. Second, because of the public nature of the information, we cannot speak of harm either from noneonsensual disclosure or damage to the relationship in which the records were generated. We neither risk exposing intimate details of plaintiffs life, like those laid bare to a psychiatrist, nor do we risk damaging a relationship like that between patient and doctor by releasing plaintiffs name, address or description. See Ms. B., supra, 799 F.Supp. at 538.

Counterbalanced against plaintiffs diminished privacy interest is a strong state interest in public disclosure. There is an express public policy militating toward disclosure: the danger of recidivism posed by sex offenders. The state interest in protecting the safety of members of the public from sex offenders is clear and compelling.

[Doe v. Poritz, supra, 142 N.J. at 88-89, 662 A.2d 367.]

As a result, the Court concluded that the federal right of privacy did not provide a basis for setting aside any part of the registration and notification statutes then in question.

For similar reasons, the Court rejected the state constitutional privacy arguments, explaining that “the result of our balancing” for state constitutional purposes “is no different than that under the Federal Constitution,” id. at 90, 662 A.2d 367, explaining:

We find that the state interest in protecting the public is legitimate and substantial. We find, more importantly, that the interest in disclosure substantially outweighs the interest in nondisclosure. Because none of the information disclosed under the Registration Law is confidential, requiring disclosure of such information results in a minimal invasion of privacy. Although the potential consequences of active dissemination under the Notification Law alter the privacy interests, the incursion on those interests is necessary for the protection of the public, as the means chosen are narrowly tailored to that interest.

[Id. at 90-91, 662 A.2d 367.]

The Court’s linking of the scope of the state right of privacy to the means chosen for disclosure suggests the vulnerability of the Internet Registry Act to this state constitutional right. However, considering that the postings about plaintiffs on the internet represent passive collections of information also available elsewhere and serves, as observed in Smith v. Doe, to merely make such a document search “more efficient, cost effective and convenient,” 538 U.S. at 98-99, 123 S.Ct. at 1150-51, 155 L. Ed.2d at 180-81, I conclude that the Court’s holding in Doe v. Poritz, when applied to these circumstances, requires that we recognize that internet availability of information obtainable elsewhere is as “narrowly tailored” as necessary when compared to the substantial public interest that is implicated and, thus, is not violative of our state constitutional right of privacy.

C. Summary

As a result, I would conclude that we need not determine whether Paragraph 12 passes federal equal protection muster, because this constitutional amendment is a device intended to bar the invalidation of any part of the Internet Registry Act on state constitutional grounds and is not triggered until an otherwise meritorious state constitutional argument is posed. Since I believe that our present jurisprudence does not permit a determination that the Internet Registry Act, as presently composed, violates any of the state constitutional guarantees asserted by plaintiffs, I disagree with my colleagues that it is necessary to determine the constitutionality of Paragraph 12. Instead, I would affirm the dismissal of the complaint by finding an absence of merit in the state constitutional arguments that Paragraph 12 was enacted to bar from the judiciary’s scrutiny.

III

Although for reasons already expressed I would find it unnecessary to reach the issue, I respectfully disagree with my colleagues’ determination that Paragraph 12 passes federal equal protection muster.

Like the state constitutional provision struck down by the Court in Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 1628, 134 L. Ed.2d 855, 866 (1996), in my view Paragraph 12 “is at once too narrow and too broad” in that it “identifies persons by a single trait and then denies them protection across the board.” In this sense, as Justice Kennedy said in speaking for the Court in Romer:

The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for [such a state constitutional amendment] is itself instructive; “[discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”

[Romer, supra, at 633, 116 S.Ct. at 1628, 134 L.Ed.2d at 866 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38, 48 S.Ct. 423, 425, 72 L. Ed. 770, 774 (1928)).]

Considering the unusual way in which Paragraph 12 seeks to insulate the Internet Registry Act from state constitutional scrutiny, and considering the narrow grouping of persons that Paragraph 12 purports to deprive of all state constitutional rights when asserted in this context, I would conclude that Romer compels a finding of Paragraph 12’s unconstitutionality regardless of the fact that plaintiffs do not form a suspect class. Accord Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L. Ed.2d 786 (1982) (holding that a state statute denying public education to illegal aliens violated equal protection even though the Court explicitly denied that illegal aliens constituted a suspect class or that education was a fundamental right); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L. Ed.2d 313 (1985) (holding that a local zoning decision excluding group homes for the mentally retarded violated equal protection even though the Court explicitly denied that the mentally retarded constituted a suspect class).

I agree with ray colleagues that the Legislature may make reasoned choices in “establish[ing] classifications that roughly approximate the nature of the problem perceived.” Plyler, supra, 457 U.S. at 216, 102 S.Ct. at 2394, 72 L. Ed.2d at 798-99. That analysis is applicable when examining whether the Internet Registry Act violates the equal protection clause. With regard to the Internet Registry Act, the Legislature is entitled to draw distinctions in this area and I would conclude — had the issue been presented — that the choices made by the Legislature in enacting the Internet Registry Act bear a rational relation to the legitimate government interest in question. Doe v. Poritz, supra, 142 N.J. at 92, 662 A.2d 367. It does not follow, however, that because the Internet Registry Act may comport with the command of equal protection that so does Paragraph 12.

Paragraph 12, in my view, represents a per se violation of the equal protection clause because it does much more — it creates an unprecedented gap in the fabric of our state constitution by depriving plaintiffs of all existing and potential legal protections. In Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 300, 110 S.Ct. 2841, 2863, 111 L. Ed.2d 224, 256 (1990) (concurring opinion), for example, Justice Scalia elegantly stated that “[o]ur salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” If those sentiments remain true, then it follows that Paragraph 12 represents a glaring violation of the equal protection clause. Paragraph 12 violates the equal protection clause because it expressly purports to deprive only a small class of citizens of the protection of the state constitution for the impermissible purpose of insulating other legislation from judicial scrutiny by precluding the judiciary, when presented with a case or controversy, of determining whether particular legislation complies with the rights, contained in the state constitution, which were thought by our constitution’s authors to be “natural and unalienable,” N.J. Const. art. I, ¶ 1. If the issue was necessary for our determination, I would conclude that the State may not set apart a group of persons from the protection of all laws because those persons were convicted of certain crimes prior to the adoption of Paragraph 12. The command of equal protection must extend to all within the State regardless of what a person may have done or may be inclined to do. Although the Legislature was entitled to distinguish among persons in enacting the Internet Registry Act, and although I would conclude, had it been raised, that the Internet Registry Act does not violate the commands of equal protection, I part company with my colleagues because I do not believe the Legislature may withhold from any of its citizens the inestimable right to the protection of our laws in the fashion reflected by Paragraph 12.¹⁹ In short, in my view, the Internet Registry Act does possess a necessary link between its classification and objective, but Paragraph 12 was designed for the sole apparent purpose of disadvantaging a group of persons by depriving them of their state constitutional rights without “a rational relationship to an independent and legitimate legislative end.” Romer, supra, 517 U.S. at 633, 116 S.Ct. at 1627, 134 L.Ed.2d at 866.

IV

For these reasons, I join with my colleagues in affirming the judgment entered in the trial court which dismissed plaintiffs’ complaint.

12 U.S. Const., Art. I, § 10.

13 U.S. Const, Amend. V.

14 U.S. Const., Amend. XIV, ¶ 1.

15 N.J. Const., Art. IV, § 7, ¶ 3.

16 N.J. Const., Art. I, ¶ 11.

17 N.J. Const., Art. I, ¶ 1.

18 At a public hearing on June 1, 2000, a sponsor of the bill explained that the proposed constitutional amendment was a reaction to opinions expressed by certain members of the United States Court of Appeals for the Third Circuit and the Supreme Court of New Jersey:

What we are looking to do with this constitutional amendment is to see that, once and for all, the public's right to have knowledge about sexual predators is actually provided and that there is constitutional backing to allow such disclosure.

Many of us, myself included, believe that, under both the New Jersey Constitution as well as the U.S. Constitution, notwithstanding the provisions of the 14th Amendment, that this right exists today. And nevertheless, given that there are those in the 3rd Circuit, as well as perhaps on our Supreme Court, who feel differently, we want to make sure that there is no ambiguity as to the intent of this Legislature, and hopefully the administration, in terms of seeing that this information is information which rightly should be broadly disseminated.

[Transcript of Public Hearing before the Assembly Law and Public Safety Committee regarding Assemb. Con. Res. No. 1, pp. 1-2, http://www.njleg.state.nj.us/legislativepub/pubhear/060100gg.htm (last visited March 7, 2006).]

19 The majority recognizes that the Internet Registry Act presently permits internet posting of only tier three and some tier two offenders, and that offenders continue to have the right to challenge their relevant tier classification for purposes of notification. In Doe v. Poritz, supra, 142 N.J. at 29-30, 662 A.2d 367, the Court held that the providing of community notification pursuant to prior enactments, including the tier classification which affected the scope of notification, must be subject to judicial review prior to notification because of the requirements of procedural due process and fundamental fairness. Since the state constitutional rights that drove this determination in Doe v. Poritz may no longer be asserted — now that this court has upheld Paragraph 12 — it follows that the procedural requirements presently in place continue to exist only through the grace of the Legislature and whatever protection the federal constitution may provide.