Paul P. Ex Rel. Laura L. v. Verniero

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
3-16-1999
Paul P v. Verniero
Precedential or Non-Precedential:
Docket 97-5791
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Recommended Citation
"Paul P v. Verniero" (1999). 1999 Decisions. Paper 63.
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Filed March 16, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-5791
PAUL P. (a minor, by Laura L., his legal guardian);
QUINCY Q.; RONALD R.; STEVEN S. (a minor, by Sally
S., his legal guardian) (all fictitious names), Individually
and as Representatives of a class pursuant to Fed. R. Civ.
P. 23(a) and 23(b)(2)
v.
PETER VERNIERO, ATTORNEY GENERAL OF NEW
JERSEY; JEFFREY S. BLITZ, ATLANTIC COUNTY
PROSECUTOR; WILLIAM SCHMIDT, BERGEN COUNTY
PROSECUTOR; STEPHEN G. RAYMOND, BURLINGTON
COUNTY PROSECUTOR; LEE A. SOLOMON, ACTING
CAMDEN COUNTY PROSECUTOR; STEPHEN D. MOORE;
CAPE MAY COUNTY PROSECUTOR; ARTHUR
MARCHAND, CUMBERLAND COUNTY PROSECUTOR;
CLIFFORD J. MINOR, ESSEX COUNTY PROSECUTOR;
ANDREW YURICK, GLOUCESTER COUNTY
PROSECUTOR; CARMEN MESSANO, HUDSON COUNTY
PROSECUTOR; STEPHEN B. RUBIN, HUNTERDON
COUNTY PROSECUTOR; MARYANN K. BIELAMOWICZ,
MERCER COUNTY PROSECUTOR; ROBERT W. GLUCK,
MIDDLESEX COUNTY PROSECUTOR; JOHN KAYE,
MONMOUTH COUNTY PROSECUTOR; JOHN B.
DANGLER, 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; EDWARD NEAFSEY, ACTING UNION
COUNTY PROSECUTOR; JOHN J. O'REILLY, WARREN
COUNTY PROSECUTOR
Paul P. (a minor, by Laura L., his legal guardian) and
Ronald R. (all fictitious names), on their own behalf and
as representatives of a class pursuant to Fed. R. Civ. P.
23(a) and 23(b)(2),
Appellants
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 97-cv-02919)
District Judge: Hon. Joseph E. Irenas
Argued July 9, 1998
Before: SLOVITER and ROTH Circuit Judges, and
FULLAM, District Judge*
(Filed March 16, 1999)
Edward L. Barocas (Argued)
Office of Public Defender
Trenton, N.J. 08625
Attorney for Appellant
Joseph L. Yannotti
Peter G. Verniero (Argued)
Office of Attorney General of New
Jersey
Trenton, N.J. 08625
Gladys E. Rodriguez
Office of County Prosecutor
Camden, N.J. 08102
Betsy L. Phillips
Office of County Prosecutor
Mays Landing, N.J. 08330
_________________________________________________________________
*Hon. John P. Fullam, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
2
Nancy Lotstein
Office of County Prosecutor
Woodbury, N.J. 08096
Maureen O'Brien
Office of County Prosecutor
Elizabeth, N.J. 07207
Attorneys for Appellee
Faith S. Hochberg
United States Attorney
Camden, N.J. 08101
George S. Leone (Argued)
Assistant U.S. Attorney
Newark, N.J. 07102
Frank W. Hunger
Assistant Attorney General
Leonard Schaitman
Wendy M. Keats
Attorneys, Appellate Staff
Civil Division, Department of Justice
Washington, D.C. 20530
Attorneys for United States as
Amicus-Curiae Supporting
Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Plaintiff Paul P. sues on his behalf and on behalf of a
class of persons who, having been convicted of specified sex
crimes, are required to comply with N. J. Stat. Ann. S 2c:7-
1 et seq., known as "Megan's Law," which provides for a
system of registration and community notification. Named
as defendants are the Attorney General of New Jersey and
3
numerous County Prosecutors (collectively, the "State
defendants").
In a related action, E.B. v. Verniero, 119 F.3d 1077 (3d
Cir. 1997), cert. denied, 118 S. Ct. 1039 (1998), this court
rejected the claims of comparably situated persons that the
community notification requirements violate the Double
Jeopardy Clause or the Ex Post Facto Clause of the United
States Constitution. That holding of E.B. was predicated on
the conclusion that the notification required by Megan's
Law does not constitute punishment. Judge, now Chief
Judge, Becker dissented to this portion of the holding. The
E.B. decision also held that "[t]he Due Process Clause . . .
would be violated by any Tier 2 or Tier 3 notification that
occurred without a prior opportunity to challenge the
registrant's classification and notification plan in a hearing
at which the prosecutor has the burden of persuasion and
must prove her case by clear and convincing evidence." Id.
at 1111.
In this case, plaintiffs raise a challenge to Megan's Law
that they claim is different from that considered in E.B.
They argue that the statutory requirement that the class
members provide extensive information to local law
enforcement personnel, including each registrant's current
biographical data, physical description, home address,
place of employment, schooling, and a description and
license plate number of the registrant's vehicle, and the
subsequent community notification is a violation of their
constitutionally protected right to privacy.
The statutory scheme is described in detail in E.B., and
we refer only briefly to the salient details. We explained the
registration requirements as follows:
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
4
the law enforcement agency of any new municipality.
N.J.S.A. 2C:7-2d to e.
Id. at 1082 (quoting Artway v. Attorney General, 81 F.3d
1235, 1243 (3d Cir. 1996)).
The information provided by the registrant is put into a
central registry, open to other law enforcement personnel
but not to public inspection. Law enforcement officials then
use the data provided to apply a "Risk Assessment Scale,"
a numerical scoring system, to determine the registrant's
"risk of offense" and the tier in which the registrant should
be classified. In the case of Tier 1 registrants, notification is
given only to law enforcement agents "likely to encounter"
the registrant. Tier 2, or "moderate risk," notification is
given to law enforcement agents, schools, and community
organizations "likely to encounter" the registrant. Tier 3, or
"high risk," notification goes to all members of the public
"likely to encounter" the registrant. Notifications generally
contain a warning that the information is confidential and
should not be disseminated to others, as well as an
admonition that actions taken against the registrant, such
as assaults, are illegal.
The prosecutor must provide the registrant with notice of
the proposed notification. A pre-notification judicial review
process is available for any registrant who wishes to
challenge his or her classification.
The plaintiffs are Tier 2 and Tier 3 registrants who have
been certified as a class and whose offenses were
committed after the enactment of Megan's Law. When Paul
P. filed the original complaint on June 16, 1997, alleging
that the statute violated plaintiffs' constitutional rights of
privacy and due process, as well as the constitutional
prohibition against double jeopardy and cruel and unusual
punishment, E.B. had not yet been decided. This court
decided E.B. shortly thereafter. The State defendants,
relying on E.B., moved for summary judgment; plaintiffs
argued in opposition that E.B. did not dispose of their
privacy claim and that discovery was required, inter alia, on
the due process claim. On October 29, 1997, the District
Court granted the State defendants' motion for summary
judgment as to all but the plaintiffs' due process claim. See
5
Paul P. v. Verniero, 982 F. Supp. 961 (D.N.J. 1997). At the
request of the plaintiffs and with the consent of the
Attorney General, the court certified the order as appealable
under Federal Rule of Civil Procure 54(b). The court later
granted summary judgment for the State defendants on the
due process claim. The plaintiff class limits its appeal to the
claim that Megan's Law violates its constitutional rights to
privacy. The State defendants and the United States, which
has filed an amicus brief, vigorously support the statute.
II.
The legal foundation for plaintiffs' claim is the Supreme
Court's recognition that there is "a right of personal
privacy, or a guarantee of certain areas or zones of privacy,"
protected by the United States Constitution. Roe v. Wade,
410 U.S. 113, 152 (1973). This "guarantee of personal
privacy" covers "only personal rights that can be deemed
``fundamental' or ``implicit in the concept of ordered liberty.' "
Id. This privacy right "has some extension to activities
relating to marriage, procreation, contraception, family
relationships, and child rearing and education." Id. at 152-
53 (citations omitted).
Plaintiffs argue that Megan's Law infringes upon their
constitutionally protected privacy interests in two ways.
One is by the dissemination of information about them,
most particularly by disseminating both their home
addresses and a "compilation of information which would
otherwise remain ``scattered' or ``wholly forgotten.' "
Appellants' Br. at 12. Their other claim is that the
community notification infringes upon their "privacy
interests in their most intimate relationships - those with
their spouses, children, parents, and other family
members." Appellants' Br. at 12.
Plaintiffs thus seek to invoke the two categories of privacy
interests identified by the Supreme Court in Whalen v. Roe,
429 U.S. 589 (1977), where the Court stated: "The cases
sometimes characterized as protecting ``privacy' have in fact
involved at least two different kinds of interests. One is the
individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in
6
making certain kinds of important decisions." Id. at 598-
600 (footnotes omitted).
The parties dispute the extent to which our decision in
E.B. is dispositive of the privacy issue before us in this
case. Plaintiffs contend that no privacy issue was raised,
briefed, or argued in E.B. and that the discussion in E.B.
relating to cases on which they rely is dictum. The State
defendants, on the other hand, regard "[t]he portions of the
E.B. decision holding that community notification does not
implicate a fundamental privacy interest and the finding of
a compelling state interest in protecting the public from
recidivist sex offenders," as "control[ling] the decision in
this case." Appellees' Br. at 12. We thus turn to examine
the E.B. decision.
The privacy issue arose in E.B. during our analysis of
whether community notification mandated by Megan's Law
constitutes punishment for purposes of the Ex Post Facto
and Double Jeopardy clauses. In that context, we stated
that the "primary sting from Megan's law notification comes
by way of injury to what is denoted . . . as reputational
interests. This includes . . . the myriad of . . . ways in
which one is treated differently by virtue of being known as
a potentially dangerous sex offender." E.B., 119 F.3d at
1102. We then referred to the Supreme Court's holding in
Paul v. Davis, 424 U.S. 693 (1976), stating:
Just as Davis sought constitutional protection from the
consequences of state disclosure of the fact of his
shoplifting arrest and law enforcement's assessment
that he was a continuing risk, so registrants seek
protection from what may follow disclosure of facts
related to their sex offense convictions and the
resulting judgment of the state that they are a
continuing risk. It follows that, just as the officers'
publication of the official act of Davis' arrest did not
violate any fundamental privacy right of Davis', neither
does New Jersey's publication (through notification) of
registrants' convictions and findings of dangerousness
implicate any interest of fundamental constitutional
magnitude.
E.B., 119 F.3d at 1103.
7
We rejected the contention that dissemination of
information about criminal activity beyond law enforcement
personnel is analogous to historical punishments, such as
the stocks, cages, and scarlet letters. We found instead that
the dissemination is more like the dissemination of "rap
sheet" information to regulatory agencies, bar associations,
prospective employers, and interested members of the
public that public indictment, public trial, and public
imposition of sentence necessarily entail. Id. at 1100-01.
We noted that although the Supreme Court later recognized
in United States Department of Justice v. Reporter's
Committee for Freedom of the Press, 489 U.S. 749 (1989),
that the dissemination of "rap sheets" implicates a privacy
interest, the Court there was determining whether a"rap
sheet" fell under the "privacy interest" protected by an
exemption to the Freedom of Information Act ("FOIA"), not
that protected by the Constitution. We pointed out that the
Supreme Court itself made the distinction between the two
types of privacy interest, and we quoted its statement in
Reporter's Committee, 489 U.S. at 762 n.13, that "[t]he
question of the statutory meaning of privacy under the
FOIA is, of course, not the same as the question . ..
whether an individual's interest in privacy is protected by
the Constitution." E.B., 119 F.3d at 1100 n.21.
In this respect, we disagreed with the Supreme Court of
New Jersey which, in Doe v. Poritz, 142 N.J. 1, 83-87, 662
A.2d 367, 409-11 (1995), had interpreted Reporter's
Committee to compel the conclusion that a federal
constitutional right to privacy is implicated by notification.
See E.B., 119 F.3d at 1103 n.23. Finally, we concluded in
E.B. that even if a "fundamental right" were implicated, "the
state's interest here would suffice to justify the
deprivation." Id. at 1104.
Determining the import of this discussion in E.B. is
difficult. On the one hand, it has more significance than
mere dictum, as it was relevant to the holding that Megan's
Law was not punitive. On the other hand, the discussion
arose in a context different than it does here; the privacy
issue was tangential to the determination of the different
constitutional issues raised. The discussion also focused on
the dissemination of information -- the fact of "registrants'
8
convictions and findings of dangerousness" -- that is to
some extent distinct from the portion of the disclosures
plaintiffs now challenge -- the revelation of their home
addresses and the compilation of otherwise scattered
information. Finally, we note that in E.B., we began our
opinion with the caveat, "The issues before us are difficult
but relatively narrow. We are not called upon to decide
whether Megan's Law can constitutionally be applied to one
who has committed one of the designated sex crimes after
its enactment." Id. at 1081.
The District Court in this case apparently had little
difficulty rejecting Paul P.'s privacy claims based on the
decision in E.B. It stated, "we find that the Third Circuit in
E.B. did address registrants' rights to privacy and explicitly
found that community notification does not violate any
fundamental substantive due process right." Paul P., 982 F.
Supp. at 966. Nonetheless, the court continued its
discussion by "assuming the Third Circuit's E.B. analysis
addressed only the reputational interests of registrants, not
the interests plaintiffs are now asserting," and it then
concluded that the registrants' interests in information
concerning their home address and in compilation of
information are not within the protected "zones of privacy"
because the information is public. Id.We do not agree with the State defendants that our
decision in E.B. is dispositive of the privacy issue presented
here, as there seems to be little dispute that this issue
was not directly presented there. Nonetheless, our
characterization in E.B. of key cases, such as Reporter's
Committee and Paul v. Davis, merits considerable deference
and we are not likely to disagree with our colleagues absent
compelling reasons to do so.
III.
In several cases, this court has considered what types of
information may be protected from disclosure based on a
privacy interest. In Fraternal Order of Police v. City of
Philadelphia, 812 F.2d 105, 112-17 (3d Cir. 1987), we
stated that "[i]n determining whether information is entitled
to privacy protection, we have looked at whether it is within
9
an individual's reasonable expectations of confidentiality.
The more intimate or personal the information, the more
justified is the expectation that it will not be subject to
public scrutiny." Id. at 112-13.
Many of the cases in this circuit finding a privacy interest
in preventing disclosure have concerned medical
information or medical records. Almost two decades ago, we
stated in United States v. Westinghouse Electric Corp., 638
F.2d 570 (3d Cir. 1980), "[A]lthough the full measure of the
constitutional protection of the right to privacy has not yet
been delineated, . . . [t]here can be no question that an
employee's medical records, which may contain intimate
facts of a personal nature, are well within the ambit of
materials entitled to privacy protection." Id. at 577.
Similarly, in Fraternal Order of Police, we held that the
medical information a police questionnaire sought to elicit
from employees was entitled to protection against
disclosure. 812 F.2d at 112-13. In fact, in Doe v. SEPTA, 72
F.3d 1133 (3d Cir. 1995), we specifically held that medical
prescription records are "within the ambit of information
protected by the Constitution." Id. at 1137-38; see also Doe
v. Borough of Barrington, 729 F. Supp. 376, 382-85 (D.N.J.
1990) (holding that because "[t]he Third Circuit recognizes
a privacy right in medical records and medical information,"
family members' AIDS status was entitled to protection).
However, the privacy right in record information is not
limited to medical records. In Nixon v. Administrator of
General Services, 433 U.S. 425, 455-65 (1977), the Court
recognized that the President had a protected privacy
interest in at least some of the 42 million pages of
documents covered by the Presidential Recordings and
Materials Preservation Act, and among those protected were
private communications between the President and his
family and advisors, as distinguished from the millions of
records dealing with government business and official
duties. Similarly, in Fraternal Order of Police, we held that
police officers and prospective police officers had privacy
interests in certain financial information sought by a police
questionnaire, and we noted cases from other courts that
have so held. See 812 F.2d at 115; see also Plante v.
Gonzalez, 575 F.2d 1119, 1132-36 (5th Cir. 1978)
10
(considering the constitutionality of financial disclosure
laws that regulate elected officials); cf. Slayton v.
Willingham, 726 F.2d 631, 635 (10th Cir. 1984) (stating
that whether plaintiff had a privacy interest in personal
photographs would depend on whether "he had a legitimate
expectation of privacy in the photos").
Other courts have narrowly interpreted the type of
information protected. For example, the Court of Appeals
for the Sixth Circuit has considered the right to prevent the
disclosure of private information to be part of the
constitutional right to privacy only when disclosure would
"implicate a fundamental liberty interest," such as the
interest in preserving personal security or bodily integrity.
Bloch v. Ribar, 156 F.3d 673, 683-84 (6th Cir. 1998). In Doe
v. Sundquist, 106 F.3d 702 (6th Cir.), cert. denied, 118 S.
Ct. 51 (1997), it rejected the contention that adoption
records are constitutionally confidential.
Even information that is entitled to privacy protection
may nonetheless be subject to disclosure when the
government's interest in disclosure is compelling. For
example, although we stated in Westinghouse that medical
information is "matter which the individual is ordinarily
entitled to retain within the ``private enclave where he may
lead a private life,' " 638 F.2d at 577, we also recognized
that "the right of an individual to control access to her or
his medical history is not absolute," id. at 578, and that
there are some governmental interests, such as public
health or other public concerns, that "may support access
to facts an individual might otherwise choose to withhold,"
id. We followed that approach in a later case, where we held
that the medical information requested by a police
department questionnaire should be disclosed because it
was directly related to the interest of the police department
in selecting officers who were physically and mentally
capable of handling the positions for which they were
applying. Fraternal Order of Police, 812 F.2d at 114.
Public interest has justified disclosure of other categories
of information as well. In the same case, we stated that "the
strong public interest in avoiding corruption among officers
assigned to a unit designed to perform investigations in
areas traditionally susceptible to corruption outweighs
11
police officers' limited privacy expectations in the financial
information sought by the . . . questionnaire." Id. at 116.
Against this background, the Court of Appeals for the
Ninth Circuit upheld Washington state's version of Megan's
Law against the claim that it violated the plaintiffs' right to
privacy. See Russell v. Gregoire, 124 F.3d 1079, 1093-94
(9th Cir. 1997), cert. denied, 118 S. Ct. 1191 (1998).
Significantly, the Washington statute was less pervasive
than the one before us as it authorized disclosure of only
the "general vicinity of the offender's residence" and not the
exact address. Nonetheless, the court's analysis is relevant
to this case. The court construed the right to privacy to
"protect only personal information," and noted that most of
"[t]he information collected and disseminated by the
Washington statute is already fully available to the public
and is not constitutionally protected." Id. at 1094. The
court permitted disclosure relating to the offender's
residence and employment, because even if not publicly
available, such information was not "generally considered
``private'." Id.; see also Doe v. Kelley, 961 F. Supp. 1105,
1112 (W.D. Mich. 1997) (denying a preliminary injunction
of Michigan's version of Megan's Law because "plaintiffs
have failed to demonstrate the existence of a legitimate
privacy interest in preventing compilation and
dissemination of truthful information that is already, albeit
less conveniently, a matter of public record"). New York's
version of Megan's Law has also been sustained, but in an
opinion that did not consider the privacy issue. Doe v.
Pataki, 120 F.3d 1263 (2d Cir. 1997), cert. denied, 118 S.
Ct. 1066 (1998).
The District Court here concluded that there was no
privacy interest in the plaintiffs' home addresses, stating
that "[b]ecause such information is public, plaintiffs'
privacy interests are not implicated." Paul P., 982 F. Supp.
at 966. As to the argument based on the "compilation" of
various information, the court held that "[i]t is of little
consequence whether this public information is disclosed
piecemeal or whether it is disclosed in compilation." Id. at
967.
To the extent that plaintiffs' alleged injury stems from the
disclosure of their sex offender status, alone or in
12
conjunction with other information, the District Court's
opinion is in line with other cases in this court and
elsewhere holding specifically that arrest records and
related information are not protected by a right to privacy.
See Fraternal Order of Police, 812 F.2d at 117 (holding that
"arrest records are not entitled to privacy protection"
because they are public); Cline v. Rogers, 87 F.3d 176, 179
(6th Cir.) (holding that "there is no constitutional right to
privacy in one's criminal record" because "arrest and
conviction information are matters of public record"), cert.
denied, 117 S. Ct. 510 (1996). In Trade Waste Management
Association, Inc. v. Hughey, 780 F.2d 221 (3d Cir. 1985),
this court discussed a privacy challenge to a statute
requiring certain disclosures from applicants for
environmental permits. We noted the privacy interest
behind avoidance of disclosure of "personal matter," such
as "personal medical history," but held that records of
criminal convictions and pending criminal charges"are by
definition public," and therefore not protected. Id. at 234.
This issue was also considered in Paul v. Davis, relied on
heavily in the E.B. opinion. The Supreme Court rejected the
argument that a police chief who published a flier
identifying the plaintiff with a photograph as an"active
shoplifter" violated plaintiff's "right to privacy." 424 U.S. at
695-96. The Court distinguished cases dealing with
"matters relating to marriage, procreation, contraception,
family relationships, and child rearing and education," from
the claims made by Paul. Id. at 713. The court stated:
Respondent's claim is far afield from this line of
decisions. He claims constitutional protection against
the disclosure of the fact of his arrest on a shoplifting
charge. His claim is based, not upon any challenge to
the State's ability to restrict his freedom of action in a
sphere contended to be "private," but instead on a
claim that the State may not publicize a record of an
official act such as an arrest. None of our substantive
privacy decisions hold this or anything like this, and
we decline to enlarge them in this manner.
Id. (emphasis added).
Plaintiffs argue that Paul v. Davis is inapposite because
the Court was merely dealing with a reputational interest,
13
and not any of the interests they assert here. It is true that
in rejecting the argument that there was a liberty interest
at stake, the Court in Paul v. Davis held that "reputation
alone" does not invoke the procedural due process
protections. 424 U.S. at 701. And, we recognize that Paul v.
Davis preceded the Court's decisions in Whalen and Nixon
which made further steps in the development of the right of
privacy. See Slayton, 726 F.2d at 635 (noting possible effect
of Whalen and Nixon on plaintiff's claim based on
"disclosure of personal matters rather than mere damage to
his reputation"). Nonetheless, even if the interests plaintiffs
assert in preventing the disclosure of private information is
somewhat different than the reputational interest discussed
in E.B. and rejected in Paul v. Davis, we cannot simply
disregard the language of the Supreme Court rejecting any
privacy interest in information, such as arrests, which is
the subject of official records.
We are not insensitive to the argument that notification
implicates plaintiffs' privacy interest by disclosing their
home addresses. The compilation of home addresses in
widely available telephone directories might suggest a
consensus that these addresses are not considered private
were it not for the fact that a significant number of persons,
ranging from public officials and performers to just
ordinary folk, choose to list their telephones privately,
because they regard their home addresses to be private
information. Indeed, their view is supported by decisions
holding that home addresses are entitled to privacy under
FOIA, which exempts from disclosure personal files"the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." 5 U.S.C. S 552(b)(6). Most of
the cases addressing this FOIA exemption concern the
interaction of the Federal Labor Relations Act and the
claimed need of employees' addresses for bargaining
purposes. In United States Department of Defense v. FLRA,
510 U.S. 487 (1994), the Supreme Court held that the
Privacy Act forbids the disclosure by federal agencies of
employee addresses to collective bargaining representatives,
thereby resolving a division among the circuits. Compare
FLRA v. United States Dep't of Defense, 977 F.2d 545,549
(11th Cir. 1992) ("[F]requently [home address] information
is unavailable because the person has made a genuine
14
effort to keep the information private -- by getting an
unlisted telephone number or asking to be removed from
mailing lists."), FLRA v. U. S. Dep't of Navy, 966 F.2d 747,
758-59 (3d Cir. 1992) (en banc) (finding privacy interest in
names and addresses under FOIA was outweighed by
union's interest in communication to employees), and
United States Dep't of Navy v. FLRA, 840 F.2d 1131, 1139
(3d Cir. 1988) (same), with FLRA v. U. S. Dep't of Treasury,
Fin. Management Serv., 884 F.2d 1446, 1456 (D.C. Cir.
1989) (barring disclosure).
Plaintiffs' primary argument receives further support
from the New Jersey Supreme Court holding, relying on
FOIA cases, that "[t]he fact that plaintiff's home address
may be publicly available" aside, privacy interests were
implicated by the disclosure of the home address along with
the other information. Poritz, 142 N.J. at 83, 662 A.2d at
409.
Although these cases are not dispositive, see E.B., 119
F.3d at 1103 n.23, they reflect the general understanding
that home addresses are entitled to some privacy
protection, whether or not so required by a statute. We are
therefore unwilling to hold that absent a statute, a person's
home address is never entitled to privacy protection. As the
Court said in Department of Defense, persons "have some
nontrivial privacy interest in nondisclosure. . . ." 510 U.S.
at 501.
Accepting therefore the claim by the plaintiffs that there
is some nontrivial interest in one's home address by
persons who do not wish it disclosed, we must engage in
the balancing inquiry repeatedly held appropriate in privacy
cases.
The nature and significance of the state interest served
by Megan's Law was considered in E.B. There, we stated
that the state interest, which we characterized as
compelling, "would suffice to justify the deprivation even if
a fundamental right of the registrant's were implicated."
E.B., 119 F.3d at 1104. We find no reason to disagree. The
public interest in knowing where prior sex offenders live so
that susceptible individuals can be appropriately cautioned
does not differ whether the issue is the registrant's claim
15
under the Double Jeopardy or Ex Post Facto Clauses, or is
the registrant's claim to privacy. Thus, as the District Court
concluded, the plaintiffs' privacy claim based on disclosure
of information must fail. Because we find the government's
interest in preventing sex offenses compelling, we need not
decide whether the degree of effort needed to assemble
otherwise available but dispersed information ought to be
considered as a factor in determining the reasonableness of
an individual's expectation of privacy in the compiled data.
IV.
The other argument raised by plaintiffs as part of their
privacy claim is that community notification infringes upon
their fundamental interest in family relationships. In
pressing this argument, which concerns the second type of
protected interest referred to in Whalen, 429 U.S. at 598-
600, plaintiffs rely on the precedent of cases such as Meyer
v. Nebraska, 262 U.S. 390, 399 (1923), Planned Parenthood
v. Casey, 505 U.S. 833, 851 (1992), and Pierce v. Society of
Sisters, 268 U.S. 510, 534-35 (1925), which recognize the
privacy protection accorded "matters relating to marriage,
procreation, contraception, family relationships, and child
rearing and education," Paul, 424 U.S. at 713. In E.B., we
recognized that Megan's Law "impose[s] no restrictions on a
registrant's ability to live and work in a community," E.B.
119 F.3d at 1102, but that plaintiffs complain of the law's
"indirect effects: Actions that members of the community
may take as a result of learning of the registrant's past, his
potential danger, and his presence in the community,"
id. Even if we concede, as the District Court did, that "being
subject to Megan's Law community notification places a
constitutionally cognizable strain upon familial
relationships," Paul P., 982 F. Supp. at 967, these indirect
effects which follow from plaintiffs' commission of a crime
are too substantially different from the government actions
at issue in the prior cases to fall within the penumbra of
constitutional privacy protection. Megan's Law does not
restrict plaintiffs' freedom of action with respect to their
families and therefore does not intrude upon the aspect of
the right to privacy that protects an individual's
independence in making certain types of important
decisions.
16
We considered and rejected a comparable claim in
Scheetz v. The Morning Call, Inc., 946 F.2d 202 (3d Cir.
1991), where plaintiffs, a married couple, complained that
a newspaper's disclosure of a police report of a violent
domestic incident infringed on their decisional right to
privacy because it chilled their right to seek marital
counseling. Id. at 207 n.7. Likewise, the Court of Appeals
for the Sixth Circuit recognized a distinction between
matter a statute directly regulates and the indirect effects
its application may engender. In Sundquist, 106 F.3d at
705-06, the court rejected the claim that a statute that
permitted the disclosure of adoption records effected an
infringement on "familial" or "reproductive" privacy. The
court noted that the statute did not directly regulate when,
how or by whom a child may be adopted, and hence found
that it did not infringe upon the right to marry and raise
children. Id. at 706.
There are other examples of decisions sustaining statutes
that may indirectly influence familial relationships. See,
e.g., Harris v. McRae, 448 U.S. 297 (1980) (holding that
government does not infringe a fundamental privacy
interest by subsidizing childbirth but not abortion); Maher
v. Roe, 432 U.S. 464 (1977) (same); Murillo v. Bambrick, 681
F.2d 898, 903-05 (3d Cir. 1982) (holding that New Jersey
statute did not infringe fundamental privacy right by
imposing filing fee on divorce petitions); cf. Dandridge v.
Williams, 397 U.S. 471 (1970) (holding that state does not
violate Equal Protection Clause by capping amount of grant
under AFDC, regardless of family size); id. at 520 n.14
(Douglas, J., dissenting) (refusing to base analysis on claim
that maximum grant regulation infringes fundamental right
of procreation because "the effect of the . . . regulation
upon the right . . . is marginal and indirect at best"). We
put Megan's Law in the same category.
Finally, it is important to emphasize that it was the
actions of the plaintiffs that triggered application of Megan's
Law. Whenever an individual commits a crime and is
convicted and sentenced, the publicity will necessarily have
an impact on the offender's family. Concededly, the
registration and notification provisions of Megan's Law may
evoke more publicity than usual, but that is the
17
consequence of the nature of the crime. We cannot
conclude that this indirect effect is a violation of the
autonomous decision branch of the constitutional right of
privacy.
V.
During the pendency of this appeal, appellants filed a
series of motions under seal, six in all, seeking to
supplement the record with evidence of recent incidents
which have caused serious adverse consequences to them
and their families. In response, appellee Peter Verniero filed
three motions to further supplement the record with
evidence of the government's response to such unfortunate
incidents. In light of our holding above, the material is not
relevant to a determination of the issue before us--
whether Megan's Law's notification provisions violate
plaintiffs' constitutional right to privacy.
However, this court has previously held that "[t]he fact
that protected information must be disclosed to a party who
has a particular need for it . . . does not strip the
information of its protection against disclosure to those who
have no similar need," and we have required the
government to implement adequate safeguards against
unnecessary disclosure. Fraternal Order of Police, 812 F.2d
at 118. Because these motions were filed in this court in
the first instance, the District Court has not had the
opportunity to consider the information contained therein
and to determine whether any action is appropriate in light
of our precedent.
We note, for example, that at least one motion challenges
the need for the scope of the community notification
ordered, a challenge that may have some merit in light of a
recent New Jersey decision on this issue. In In re Registrant
R.F., No. A-6736-97T1, 1998 WL 925203, at *2 (N.J. Super.
Ct. App. Div. 1998), the New Jersey Superior Court,
Appellate Division, stated that under Megan's Law"it is the
prosecutor's burden to prove by clear and convincing
evidence not only the degree of risk created by registrant's
presence in the community, but also the scope of
notification necessary to protect the members of the
18
community likely to encounter him." The court required the
prosecutor to establish to a reasonable certainty that a Tier
II offender was at "risk to attack young children in the
vicinity of their schools and playgrounds" before notice
could be sent to schools in the community. Id. at *5 *6.
Although we will deny the plaintiffs' motions to
supplement and the corresponding motions by Verniero, we
do so without prejudice and will remand this matter so that
the District Court can consider whether plaintiffs' interest
in assuring that information is disclosed only to those who
have a particular need for it has been accorded adequate
protection in light of the information set forth in the
motions.
VI.
For the reasons set forth above, we will affirm the District
Court's decision granting summary judgment for the State
defendants on plaintiffs' claim that the notification
provisions of Megan's law violate their constitutional right
to privacy as a matter of law. However, in light of our
conclusion that the material set forth in the subsequent
motions filed in this court should be considered by the
District Court in the first instance, we will remand this case
to the District Court so that plaintiffs can file their motions
and the District Court can consider such material in light
of plaintiffs' challenge to the ways in which Megan's law is
being applied.
19
FULLAM, District Judge, concurring.
Solely because we are bound by the panel opinion in E.B.
v. Verniero, 119 F.3d 1077 (3d Cir. 1997), I concur in the
majority's disposition of this appeal. I do so with great
reluctance, however, because I agree in all respects with
the dissenting opinion of Judge (now Chief Judge) Becker in
E.B. As the material submitted to us under seal (and,
indeed, the records in E.B. and other reported cases)
demonstrate, the theoretical and "feel-good" benefits of
Megan's Law may in the long run, be overwhelmed by the
law's negative consequences. Statutes enabling, even
perhaps encouraging, vigilantism and similar harms, seem
utterly at odds with constitutional values. Perhaps an
expanded record in the district court on remand may
provide a basis for ameliorative measures.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
20