E.B. v. Verniero (Part I)

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

8-20-1997

E.B. v. Verniero (Part I)
Precedential or Non-Precedential:

Docket 96-5132,96-5416

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mJ
e the impact of the first 14 months of the state's
1993 community notification statute. Even before this
_________________________________________________________________

8. In the single assault incident, a registrant was "punched in the nose
when he answered his door." Sheila Donnelly & Roxanne Lieb,
Washington's Community Notification Law: A Survey of Law Enforcement
7 (Dec. 1993).

23
statute, probation and parole officers with a sex offender
under supervision had provided notification to"local police;
immediate and extended family members in contact with
the offender; victims; other residents in the offender's
home; regular visitors to the home; employers; therapists;
Children's Services Division; landlords and apartment
managers; ministers, pastors, and other officials where the
offender attends church; select neighbors; specific
business[es] frequented by the offender; and close
associates to the offender." Oregon Dep't of Corrections, Sex
Offender Community Notification in Oregon at 7 (Jan.
1995). This practice continued after enactment of the
statute requiring notification to "a broader public." As of
the time of the study, there had been 237 notification plans
submitted under the new law. In this context, the Oregon
Department of Corrections reported as follows:

In January 1995, forty-five parole/probation sex
offender specialists from thirty-five counties responded
to a survey of their experience with Community
Notification. These officers were responsible for a total
caseload of 2,160 sex offenders. The following
information was gained from the surveys and [Sex
Offender Supervision] Network discussions:

* * *

Less than 10% of offenders experienced some form of
harassment. Incidents reported included name
calling, graffiti, toilet papering and minor property
vandalism, monitoring of a home by video camera,
repeated reports of unfounded violations to parole/
probation officers, and picketing of residences.

There were two extreme cases of retaliation. One sex
offender had a gun pointed at him and was
threatened. In another case, a victim had tires
slashed and the offender was blamed. Although the
offender passed a polygraph and was accountable for
the time, there were threats made that the offender's
home would be burned down.

* * *

Other circumstances reported by parole/probation
officers included:

24
Community notification has made it more difficult to
find residences for some sex offenders released from
prison.

* * *

Notification has [affected] employment opportunities
for sex offenders.

* * *

Businesses who were initially willing quietly to
employ a sex offender sometimes do not provide jobs
when the hiring will clearly become public.

Id. at 12-14.

IV. THE ROOKER-FELDMAN ISSUE

There is a threshold jurisdictional issue for decision. The
appellants contend that the district court was without
subject matter jurisdiction under the doctrine articulated
by the Supreme Court in Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923), and District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462 (1983). Section 1257 of Title 28
of the United States Code bestows upon the Supreme Court
of the United States appellate jurisdiction to review final
judgments of the highest courts of the respective states.
The so-called Rooker-Feldman doctrine teaches that, by
negative implication, the inferior federal courts lack subject
matter jurisdiction to review judgments of those courts. We
have interpreted the doctrine to encompass final decisions
of lower state courts as well. See Port Auth. Police
Benevolent Ass'n, Inc. v. Port Auth. of N.Y. & N.J., 973 F.2d
169, 177-78 (3d Cir. 1992).

Appellants point out that E.B. demanded and received
judicial review of the prosecutor's Tier 3 classification and
notification plan and that he advanced federal
constitutional arguments in that proceeding for preventing
the classification and notification plan from being put into
effect. See Tr. Megan's Law Hearing (N.J. Super. Ct. Law
Div. Dec. 7, 1995) at 6-9. The Superior Court, Law Division,
after a hearing, rejected E.B.'s challenge and ordered that
notification be given. E.B. appealed to the Appellate

25
Division, which affirmed. The Supreme Court of New Jersey
thereafter denied E.B.'s petition for certification of appeal.
As appellants stress, the relief E.B. seeks in this proceeding
is an injunction directing that the notification ordered by
the New Jersey Superior Court, Law Division, not be carried
out.

We agree with appellants that this is a paradigm
situation in which Rooker-Feldman precludes a federal
district court from proceeding. To grant E.B. relief would
require an inferior federal court to determine that the New
Jersey court's judgment was erroneous and would foreclose
implementation of that judgment. See FOCUS v. Allegheny
County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.
1996).

The district court reached a contrary conclusion because
it believed that although E.B. raised constitutional issues,
he "was denied an opportunity to meaningfully raise
constitutional challenges to Megan's Law." 914 F. Supp. at
89 (emphasis supplied). Its belief was based primarily on
the fact that the Supreme Court of New Jersey in Doe had
described a Megan's Law proceeding in the trial court as a
"summary proceeding" and had stated that "the only issue
for the court on the Tier level of notification is the risk of
reoffense." Id. at 89-90; Doe, 662 A.2d at 382-83. This
suggested to the district court that the New Jersey courts
do not consider constitutional challenges in a Megan's Law
proceeding. 914 F. Supp. at 90.

If we shared the belief of the district court that E.B.'s
constitutional challenges were not considered by the New
Jersey courts--and, under Doe, could not be considered by
them--we would also conclude that Rooker-Feldman did not
deprive the district court of jurisdiction. However, we do not
read the Doe opinion as instructing New Jersey courts to
ignore properly raised claims based on the federal
Constitution,9 and it is clear that the New Jersey courts do
_________________________________________________________________

9. Consideration of constitutional issues is not inconsistent with the
expectation of the Doe Court that Megan's Law proceedings in the trial
court will be summary in nature. Once the constitutional issues raised
by that law are authoritatively resolved, they will no longer be a
component of the routine process.

26
not so read that opinion. In In re G.B., 669 A.2d 303, 306
(N.J. Super. Ct. App. Div. 1996), aff'd, 685 A.2d at 1252,
the Appellate Division considered constitutional challenges
and rejected them on the merits because these same issues
had been previously considered and rejected in Doe. Shortly
thereafter, the Superior and Supreme Courts of New Jersey,
in appeals from a denial of relief in a Megan's Law
proceeding, addressed constitutional challenges to Megan's
Law for which there was no binding precedent. See In re
C.A., 679 A.2d at 1153. Even if there were not this clear
evidence, however, we would have to "assume that state
procedures will afford an adequate remedy, in the absence
of unambiguous authority to the contrary." Pennzoil Co. v.
Texaco Inc., 481 U.S. 1, 15 (1987).

The only remaining issue with respect to E.B. and the
Rooker-Feldman doctrine is whether a litigant can be said to
have a meaningful opportunity to raise an issue in a state
proceeding when the highest court of that state has
rejected, in another litigant's case, the same argument the
litigant wishes to raise. Our answer is in the affirmative.

Rooker-Feldman abstention is necessary to preserve the
United States Supreme Court's appellate jurisdiction--as
well as to limit federal court review of state court decisions
to the avenue provided for such by Congress. See Ernst v.
Child and Youth Services of Chester County, 108 F.3d 486,
491 (3d Cir. 1997). The federal court structure established
by Congress intends that only the Supreme Court have the
opportunity to decide that a state court has reached an
erroneous conclusion on a federal constitutional claim.
Nothing suggests that this structure should be altered
where the state court's decision is based upon what is
already settled precedent in that state.

As we have previously observed, the interests served by
Rooker-Feldman are quite similar to those served by giving
a state court judgment res judicata effect in a subsequent
federal proceeding. Marks v. Stinson, 19 F.3d 873, 885-86
n.11 (3d Cir. 1994); Valenti v. Mitchell, 962 F.2d 288, 297
(3d Cir. 1992). If a litigant resorts to a state court and
suffers an adverse judgment, a lower federal court must
respect that judgment unless and until it is overturned. The
litigant's only remedy is by way of appeal through the state

27
court system and by way of petition to the Supreme Court
of the United States thereafter.10

We will, accordingly, reverse the judgment of the district
court in E.B.'s case11 and remand with instructions to
dismiss for want of subject matter jurisdiction.

This does not mean, however, that the district court
lacked jurisdiction over the class claims in W.P . As we
concluded in Valenti, 962 F.2d at 298, " Rooker-Feldman
does not bar individual constitutional claims by persons
not parties to earlier state court litigation." In W.P., at least
some of the representative plaintiffs were not the subject of
any kind of judicial order when they filed this suit to secure
injunctive relief against enforcement of Megan's Law.
Indeed, neither they nor the state had petitioned any state
court for any relief. The claims of these class plaintiffs were
sufficient to confer subject matter jurisdiction 12 on the
district court.13
_________________________________________________________________

10. Where, as here, the state Supreme Court exercises its discretion
against review, certiorari will lie from the intermediate appellate court to
the Supreme Court of the United States. See Interstate Circuit, Inc. v.
Dallas, 390 U.S. 676, 678 n.1 (1968); Michigan-Wisconsin Pipe Line Co.
v. Calvert, 347 U.S. 157, 160 (1954).

11. We note that E.B. does not seek to enjoin future proceedings against
him under Megan's Law. Cf. Centifanti v. Nix, 865 F.2d 1422, 1430 (3d
Cir. 1989). Rather he seeks relief from a judicial judgment in a Megan's
Law proceeding that has already terminated. See Valenti, 962 F.2d at
297.

12. As with standing, which also "goes to the subject matter jurisdiction
of the . . . court," Page v. Schweiker, 786 F.2d 150, 153 (3d Cir. 1986),
jurisdiction over the claims of a single representative plaintiff allows a
court to reach the class claims. See Sosna v. Iowa, 419 U.S. 393, 402-03
(1975); see generally Wright & Miller, 7A Federal Practice and Procedure
§ 1755 (noting that rule authorizing class actions cannot be construed to
broaden or limit subject matter jurisdiction of district courts).

13. In the district court, the Attorney General asked that W.P. be
dismissed on grounds of Younger abstention. The district court rejected
that contention before entering its preliminary injunction. Although
Younger abstention was raised again in the Attorney General's
interlocutory appeal from the preliminary injunction, that appeal was
withdrawn when the district court entered summary judgment for the
defendants. In the appeal now before us, the Attorney General does not

28
V. THE EX POST FACTO AND DOUBLE
JEOPARDY ISSUES

The Ex Post Facto Clause forecloses retroactive
application of a law 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). The Double
Jeopardy Clause forbids "multiple punishments for the
same offense." United States v. Halper, 490 U.S. 435, 440
(1989). Accordingly, neither clause is implicated unless the
state has inflicted "punishment." Since no one here
suggests that "punishment" has a different meaning under
one of these clauses than under the other, the critical issue
to which we now turn is whether the notification called for
in situations involving Tier 2 and Tier 3 registrants is
"punishment" for purposes of the Ex Post Facto and Double
Jeopardy Clauses.

A. The Artway Standard

In Artway, when we addressed the issue of whether
registration under Megan's Law constituted "punishment,"
_________________________________________________________________

ask us to abstain from adjudicating the plaintiffs' constitutional claims;
he asks rather that we affirm the district court's adjudication of those
claims in his favor. We have no occasion to review the district court's
disposition of the Younger abstention issues because the "State
voluntarily chooses to submit to a federal forum." Ohio Bureau of
Employment Services v. Hodory, 431 U.S. 471, 480 (1977).

The Sussex County prosecutor, also a defendant in W.P., urges in his
brief that the district court erred in failing to abstain but does not ask
us to remand with instructions to dismiss. Rather, he asks us to affirm
the judgment in his favor if we agree with the district court and to
abstain and "remit the named plaintiffs to the state courts" if we do not.
Appellee-Dennis O'Leary's Br. at 41. Thus, the Sussex County prosecutor
also "voluntarily chooses" to submit to this court's jurisdiction. Hodory,
431 U.S. at 480. Moreover, to the extent that he purports to adopt a
contrary position to that asserted by New Jersey's Attorney General, we
do not believe that he is entitled to do so. Brown v. Hotel & Restaurant
Employees & Bartenders Int'l Union, 468 U.S. 491, 500 n.9 (1984)
(notwithstanding the objection of the New Jersey Casino Commission,
because "the State's Attorney General has . . . agreed to our adjudication
of the controversy, considerations of comity are not implicated, and we
need not address the merits of the Younger abstention claim.").

29
we found no Supreme Court precedent addressing a similar
statutory provision. In order to "divine" a"test for
punishment," we reviewed the Supreme Court case law and
looked for common considerations. 81 F.3d at 1254-63.
Recognizing "that the appropriate `punishment' analysis
depends on the context," we derived an "analytical
framework for this case." Id. at 1261, 1263. Specifically, we
concluded that a "measure must pass a three-prong
analysis--(1) actual purpose, (2) objective purpose, and (3)
effect--to constitute non-punishment." Id. at 1263.

Under this Artway analysis, we first look to whether the
adverse effect on individuals results from a desire on the
part of the legislature to punish past conduct or is a by-
product of a bona fide legislative effort to remedy a
perceived societal problem. "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.
(quoting De Veau v. Braisted, 363 U.S. 144, 160 (1960).

The second inquiry--into "objective purpose"--focuses on
the operation of the legislative measure and on whether
analogous measures have traditionally been regarded in our
society as punishment. In Artway, we suggested that there
were three aspects of "objective purpose" that should be
considered by a court before deciding whether the party
challenging the statute has carried its burden of showing
that an objective observer in our society would perceive the
measure as punitive. Id. It is important to consider the
measure's proportionality--whether the remedial purpose of
a legislative measure purporting to be non-punitive can
explain all the adverse effects on those involved. While it is
true that "even remedial sanctions carry the sting of
punishment," id. at 1260 (internal quotation marks
omitted), only if the sting is not "reasonably related" to the
remedial goal would an objective observer be justified in
perceiving a punitive purpose, id. at 1265. It is also
important to consider history. If analogous measures have
traditionally been regarded by our society as "serv[ing]
punitive purposes" and the text and the legislative history

30
do "not make [the legislature's] plausible remedial purposes
clear," id. at 1257, there is an objective basis for regarding
the measure as punishment. Finally, we noted in Artway
that some measures are intended to have a mixed salutary
and deterrent effect. The examples we gave were taxes on
illegal activities (like possession of drugs) and on activities
that the state concededly wished to discourage. See id. at
1259. Such mixed measures will not be deemed to have an
objectively punitive purpose despite their deterrent purpose
unless that deterrent purpose is an unnecessary
complement to the measure's salutary operation, the
measure is operating in an unusual manner inconsistent
with its historically mixed purposes, or the deterrent
purpose overwhelms the salutary purpose. See id. at 1263.

"The final prong [of the Artway analysis] examines
whether the effects--or `sting'--of a measure is so harsh `as
a matter of degree' that it constitutes `punishment.' " Id. at
1266 (citing California Dep't of Corrections v. Morales, 514
U.S. 499, 509 (1995)). This prong necessarily involves
difficult line-drawing. Unfortunately, the Supreme Court
case law provides only a few fixed points. We know that,
under certain circumstances, the "sting" of incarceration or
forfeiture of one's citizenship is sufficiently extraordinary to
require a finding of punishment, see Miller v. Florida, 482
U.S. 423 (1987); Trop v. Dulles, 356 U.S. 86 (1958), and we
have recently been told that civil commitment of violent sex
offenders does not, see Kansas v. Hendricks, ___ U.S. ___,
117 S. Ct. 2072 (1997).

B. The Impact Of Ursery And Hendricks

There are two recent Supreme Court cases which
potentially bear upon our decision: United States v. Ursery,
116 S. Ct. 2135 (1996), and Kansas v. Hendricks, ___ U.S.
___, 117 S. Ct. at 2072. Appellees insist that after Ursery
and Hendricks, Artway does not provide an appropriate
standard for determining whether Megan's Law notification
constitutes "punishment" for purposes of the Ex Post Facto
and Double Jeopardy Clauses. We disagree.

In Ursery, the Supreme Court held that "civil forfeitures
. . . do not constitute `punishment' for purposes of the

31
Double Jeopardy Clause" even when the value of the
property forfeited is arguably excessive when compared to
the harm suffered by the government from the conduct
giving rise to the forfeiture. 116 S. Ct. at 2138. The Court
first emphasized that its case law had sharply
distinguished between in rem forfeiture proceedings and in
personam civil fine proceedings. It explained that in the
latter "it is the wrongdoer in person who is proceeded
against . . . and punished" while in the former "it is the
property which is proceeded against, and by resort to a
legal fiction, held guilty and condemned." Id. at 2145
(quoting from Various Items of Personal Property v. United
States, 282 U.S. 577, 580-81 (1931)). Thus, civil forfeitures
are not "criminal punishments because they [do] not
impose a second in personam penalty for the criminal
defendant's wrongdoing." Id. at 2141. Second, the Court
noted, "[c]ivil forfeitures, in contrast to civil penalties, are
designed to do more than simply compensate the
Government. Forfeitures . . . are designed primarily to
confiscate property used in violation of the law, and to
require disgorgement of the fruits of illegal conduct. [For
this reason,] it is virtually impossible to quantify, even
approximately, the nonpunitive purposes served by a
particular civil forfeiture." Id. at 2145. Accordingly, while a
court can determine whether a civil fine has a punitive
component by comparing its size to the harm experienced
by the government, a court is not in a position "to
determine whether a particular forfeiture bears no rational
relationship to the nonpunitive purposes of that forfeiture."
Id.

The holding of Ursery is a narrow one limited to civil
forfeitures. Neither of the principal rationales supporting its
conclusion is pertinent here and we find nothing in the
Court's reasoning that is inconsistent with the Artway
standard.14 It necessarily follows that Ursery provides no
_________________________________________________________________

14. To the contrary, we believe the Court's opinion in Ursery confirms,
directly or indirectly, that, inter alia, (1) measures motivated by
retributive animus are punishment, (2) even when the legislative action
is not so motivated, an adverse consequence resulting from an in
personam proceeding may be punishment if it is disproportionate to the

32
justification for abandoning that standard. See Third
Circuit Internal Operating Procedures 9.1.

After the district court's decision in these cases, the
Supreme Court decided Kansas v. Hendricks, 117 S. Ct. at
2072. The Court there upheld a Kansas statute that
provides for the civil commitment of "sexually violent
predators." See Kan. Stat. Ann. § 59-29a01 et seq. Under
the statute, a person convicted or charged with a violent
sexual offense and suffering from a "mental abnormality or
personality disorder which makes the person likely to
engage in the predatory acts of sexual violence," § 59-
29a02(a), may be confined to state custody for "control,
care and treatment until such time as the person's mental
abnormality or personality disorder has so changed that the
person is safe to be at large," § 59-29a07(a). Prior to Leroy
Hendricks' scheduled release from prison, the state invoked
the statute to have him confined as a sexual predator.
Hendricks, who had an extensive history of molesting
children, challenged the act on substantive due process, ex
post facto, and double jeopardy grounds. The Supreme
Court rejected all three claims and held that the state's
involuntary commitment program did not constitute
punishment for the purpose of ex post facto or double
jeopardy.

Like Ursery, Hendricks does not establish "a single
`formula' " for identifying which legislative measures
constitute punishment and which do not. Morales , 514 U.S.
at 509. However, the context involved in Hendricks--civil
commitment of sex offenders--is, obviously, more closely
related to the context involved here than was the context of
Ursery. In determining the continuing viability of Artway,
_________________________________________________________________

remedial goal which the measure purports to pursue, and (3) measures
that have traditionally been regarded as nonpunitive are not punishment
in the absence of a retributive motive. If we considered ourselves free to
disregard the Artway standard, we would be required, once again, to
"divine" a "test for punishment" by looking for common considerations in
essentially the same set of Supreme Court precedents. Artway, 81 F.3d
at 1254. With the one exception noted hereafter in the text, we see no
reason to believe our result would be materially different if we repeated
that process.

33
therefore, we must give careful consideration to how
Hendricks addressed the question of whether civil
commitment is punishment. We find substantial overlap
between the factors relied on in Hendricks and those that
comprise the Artway test and we discern no need to
abandon (or overhaul) Artway.

The Court's analysis in Hendricks begins by inquiring
into "the legislature's stated intent," 117 S. Ct. at 2082,
just as Artway directs that we begin with the legislature's
actual purpose. The Court found Kansas' placement of the
challenged provision in the probate code instead of the
criminal code, and the legislature's description of its
creation as a "civil commitment procedure," to be evidence
of the legislature's "disavow[ing] any punitive intent." Id. at
2082, 2085. "Nothing on the face of the statute suggest[ed]
that the legislature sought to create anything other than a
civil commitment scheme designed to protect the public
from harm." Id. at 2082.

Hendricks then goes beyond the legislature's stated intent
to consider additional factors, including those factors
Artway incorporates into its objective purpose prong. Like
Artway's inquiry into proportionality, Hendricks repeatedly
describes how the Kansas statute is tailored to achieve its
remedial purpose of protecting the public. The Court
observes that prior criminal conduct is appropriately
examined for the narrow evidentiary purpose of predicting
dangerousness. See id. The Court also notes that Kansas
"limited confinement to a small segment of particularly
dangerous individuals," id. at 2085, and that those affected
individuals do not "remain confined any longer than [they]
suffer[ ] from a mental abnormality rendering [them] unable
to control [their] dangerousness," id. at 2083. As the Court
recognizes, "[f]ar from any punitive objective, the
confinement's duration is instead linked to the stated
purposes of the commitment, namely, to hold the person
until his mental abnormality no longer causes him to be a
threat to others." Id. Finally, the Court observes that the
individuals are subject only to the conditions placed on any
involuntarily committed person in a state mental institution
and not to the "more restrictive conditions" placed on state
prisoners. Id. at 2082.

34
Hendricks, like Artway, relied heavily on history. In the
Court's view, the confinement involved is "one classic
example" in a long history of measures restricting the
freedom of the dangerously mentally ill--legislative
initiatives which have been consistently held to be
nonpunitive. Id. at 2083. The Court specifically analogized
the Kansas confinement to the quarantines of those
afflicted with highly contagious diseases, and recognized
that it has "never held that the Constitution prevents a
State from civilly detaining those for whom no treatment is
available, but who nevertheless pose a danger to others."
Id. at 2084.

There is also support in Hendricks for Artway's inquiry
into the relationship between a "mixed" measure's salutary
and deterrent purposes. Hendricks discusses the multiple
purposes of the Kansas statute, including incapacitation of
dangerous sex offenders as well as their treatment, and
concludes that the statute would not constitute
punishment even if providing treatment were merely an
"ancillary purpose"--and not the "primary" purpose--for
passing the statute. Id. This is consistent with Artway's
allowance that a measure can be non-punitive even when it
does not have solely "salutary" purposes such as treatment.

Though Hendricks does not explicitly discuss what
Artway calls the "effects prong," we find nothing in
Hendricks inconsistent with Artway's direction to examine
what the challenged measure actually does to the affected
individuals. This is not to say, of course, that Hendricks
lacks implications for the application of the effects prong.
The Court held that potentially indefinite civil commitment
of dangerous sex predators is not punishment. This
provides a new and important "fixed point" that is of
great utility in determining on which side of the
punitive/nonpunitive line to place community notification.

Although Hendricks thus does not suggest to us that any
of the considerations identified as relevant in Artway are no
longer relevant to a challenge based on the Ex Post Facto
and Double Jeopardy Clauses, we do discern a teaching in
Hendricks that we do not discern in the Supreme Court
case law preceding Artway. In the course of holding that
Kansas' Sexually Violent Predator Act "does not impose

35
punishment," id. at 2086, the Hendricks Court made the
following cogent observation regarding the deference that
must be accorded to the legislature's judgment as to
whether its action is remedial:

Although we recognize that a "civil label is not always
dispositive," Allen [v. Illinois , 478 U.S. 364, 369 (1986)],
we will reject the legislature's manifest intent only
where a party challenging the statute provides "the
clearest proof " that "the statutory scheme[is] so
punitive either in purpose or effect as to negate[the
State's] intention" to deem it "civil." United States v.
Ward, 448 U.S. 242, 248-249, 100 S. Ct. 2636, 2641,
65 L.Ed.2d 742 (1980).

Id. at 2082.

As we pointed out in Artway, the Supreme Court had
previously required this degree of deference only in cases
where the issue before it was "whether a proceeding is
effectively criminal so that the procedural protections of the
Fifth and Sixth Amendments must apply" in that
proceeding. Artway, 81 F.3d at 1262 n.26. After Hendricks,
however, it seems clear that similar deference to the
legislative judgment is required whenever legislative
measures are challenged on the basis of the Ex Post Facto
and Double Jeopardy Clauses.15 While the Hendricks Court
did characterize Hendricks' claim at one point as an
"argument . . . that the Act establishes criminal
proceedings," 117 S. Ct. at 2081, the issue before the Court
_________________________________________________________________

15. This aspect of Hendricks was foreshadowed in Ursery where, as we
have noted, the Court entertained a double jeopardy challenge to federal
civil forfeiture legislation. After concluding that Congress had not
intended the legislation as punitive, the Court observed:

Moving to the second stage of our analysis, wefind that there is
little evidence, much less the "clearest proof " that we require,
suggesting that forfeiture proceedings under 21 U.S.C. §§ 881(a)(6)
and (a)(7), and 18 U.S.C. § 981(a)(1)(A), are so punitive in form and
effect as to render them criminal despite Congress' intent to the
contrary.

Ursery, 116 S. Ct. at 2148 (internal quotation marks and citations
omitted).

36
was whether the Act imposed "punishment" for purposes of
the Ex Post Facto and Double Jeopardy Clauses, and the
Court's holding was that the Act did not.

Accordingly, in Artway terms, if we determine that the
actual legislative purpose was remedial, we must sustain
Megan's Law against the current challenges unless its
objective purpose or its effect are sufficiently punitive to
overcome a presumption favoring the legislative judgment.

C. Legislative Purpose

As we have indicated, in Artway we addressed only
whether Tier 1 registrants under Megan's Law are subjected
to punishment--that is, whether being required to register,
and having the resulting disclosures available to law
enforcement personnel, constitute punishment. In that
context, we determined "whether the legislature's actual
purpose [when enacting Megan's Law] was to punish."
Artway, 81 F.3d at 1264. Looking to the statute's own
statement of purpose16 and the scant legislative history,17
_________________________________________________________________

16. The Legislature finds and declares:

a. The danger of recidivism posed by sex offenders and offenders
who commit other predatory acts against children, and the dangers
posed by persons who prey on others as a result of mental illness,
require a system of registration that will permit law enforcement
officials to identify and alert the public when necessary for the
public safety.

b. A system of registration of sex offenders and offenders who
commit other predatory acts against children will provide law
enforcement with additional information critical to preventing and
promptly resolving incidents involving sexual abuse and missing
persons.

N.J.S.A. 2C:7-1; Artway 81 F.3d at 1264.

17. The only other legislative history is the following statement that
accompanied the bill when it was introduced in the state senate:

Heinous crimes have been committed against children after [sex
offenders'] release from incarceration. The most recent case involves
the tragic rape and murder of seven-year-old Megan Kanka of
Hamilton Township by a neighbor who had committed sex offenses

37
we found that the legislative purpose of Megan's Law was to
identify potential recidivists and alert the public when
necessary for the public safety, and to help prevent and
promptly resolve incidents involving sexual abuse and
missing persons. We then noted that "[p]rotecting the
public and preventing crimes are the types of purposes [the
Supreme Court has] found `regulatory' and not punitive."
Id.; see also De Veau, 363 U.S. at 160. We therefore
concluded that the restrictive provisions of Megan's Law
passed the "actual purpose" test.

Since in Artway we were only dealing with a challenge to
registration, we were not required to definitively resolve the
legal question of the actual purpose of notification.18
However, the record evidence of legislative intent is exactly
the same for both registration and notification. Nothing has
been called to our attention that causes us to change the
conclusion we reached in Artway regarding this evidence.
While the appellants view the context in which Megan's Law
was enacted as indicative of a punitive intent, wefind it
entirely consistent with its declared remedial purpose.
Accordingly, we have no basis for questioning the
legislature's declared purpose, which is remedial and devoid
_________________________________________________________________

against children. Residents of the neighborhood had no knowledge
of the man's criminal history.

Because sex offenders are likely to be unsusceptible to the "cures"
offered by the prison system, the urges that cause them to commit
offenses can never be eliminated but merely controlled. 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 (N.J. Sept. 12, 1994); Artway , 81 F.3d at 1264.

18. Appellants assert that all we determined in Artway was that the
actual purpose of registration is remedial; they claim we said nothing
about the legislative purpose for notification. They are mistaken. In
Artway, we used what appeared to us to be the nonpunitive actual
purpose of notification as the predicate for determining that the
motivation for registration is remedial as well. See 81 F.3d at 1264 ("[I]f
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.").

38
of any indication of an intent to punish. We must give
substantial deference to that judgment.

D. Objective Purpose

In Artway, we concluded that registration and Tier 1
notification of law enforcement personnel was fully
explained by the nonpunitive, legislative purpose. We
explained:

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. . . . [T]he
registrant may face some unpleasantness from having
to register and update his registration[, b]ut the
remedial purpose of knowing the whereabouts of sex
offenders fully explains the registration provision . . . .
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.

81 F.3d at 1265.

The issue now before us is whether the provisions of
Megan's Law that call for dissemination of information
about registrants beyond law enforcement personnel are
also fully explained by the nonpunitive, legislative purpose.
In addressing this issue, there is a lesson in the above-
quoted portion of Artway that we must keep in mind. The
relevant issue is whether these provisions are " `reasonably
related' to a legitimate goal." Nothing in Artway or the
Supreme Court cases upon which it relies requires a perfect
fit between end and means. Nor does anything in Ursery or
Hendricks. An absence of remedial, objective purpose is not
demonstrated by pointing out that the legislature did not
address what might be perceived as another aspect of the
same problem or that there may be a means of serving the
legislative end that would be more effective than the means
chosen. If a reasonable legislator motivated solely by the
declared remedial goals could have believed the means

39
chosen were justified by those goals, then an objective
observer would have no basis for perceiving a punitive
purpose in the adoption of those means.

We conclude that the Tier 2 and 3 dissemination of
information beyond law enforcement personnel is
reasonably related to the nonpunitive goals of Megan's Law.
As we have already indicated, these goals include
identifying potential recidivists, notifying those who are
likely to interact with such recidivists to the extent
necessary to protect public safety, and helping prevent
future incidents of sexual abuse. The fundamental premise
of Megan's Law is that registration and carefully tailored
notification can enable law enforcement and those likely to
encounter a sex offender to be aware of a potential danger
and "to stay vigilant against possible re-abuse." Id. This is
not an unreasonable premise.

Moreover, these goals have not been pursued in a way
that has imposed a burden on registrants that clearly
exceeds the burden inherent in accomplishment of the
goals. The statutory scheme is a measured response to the
identified problem that does not subject all registrants to
dissemination of information beyond law enforcement
personnel. The Guidelines call for a risk assessment based
on objective criteria, all of which might reasonably be
perceived as relevant to the degree of risk presented by
each registrant. This risk assessment is utilized to
determine the maximum scope of the notification
concerning the registrant. In the case of Tier 1 registrants,
who comprise over 45% of those required to register,
dissemination is limited to law enforcement personnel. In
the case of the moderate risk registrants in Tier 2, who
comprise 50% of those evaluated, dissemination is limited
to those in the community who have responsibility for, or
provide support to, those who are most likely to be
victimized if the registrant recidivates. Even with respect to
the 5% of registrants determined to pose higher risk, there
is no unlimited public dissemination. Under the Guidelines,
information is disseminated only to those who are
"reasonably certain" to encounter the registrant.

Appellants nevertheless insist that the remedial goal of
Megan's Law does not fully justify the means selected.

40
First, they point to the fact that risk assessment under the
Guidelines is based primarily on the registrant's past
behavior. Past criminal conduct is the basis for 90 of the
possible 111 points in the Registrant Risk Assessment
Scale. Id. at 1266 n.30. According to appellants, this Scale
fails to take sufficient account of treatment or other positive
changes in a registrant's life. They conclude that"the reach
of this law will necessarily be excessive, encompassing
those who do not actually pose a genuine risk of re-
offense." Appellants' Br. at 41. However, the non-existence
of a perfect predictor of recidivism should not preclude
legislative resort to a rationally based instrument of risk
assessment, developed and validated by mental health
professionals. The most appellants have done is to suggest
that a more effective predictor might be devised; that is not
enough to make the objective purpose of the predictor
adopted a punitive one.19

Appellants further suggest that the information
disseminated is often excessive in light of the stated
remedial aims. The information disseminated with respect
to a Tier 2 or Tier 3 registrant includes his or her name,
description, recent photograph, address, place of
employment or schooling, and a description of any vehicle
used by him or her along with its license number.
Appellants point out that some of this information will
sometimes be unnecessary. "[F]or example, if the registrant
works 20 or 30 miles from his home, the registrant's
neighbor who receives notification is not `likely to
encounter' the registrant at his place of employment.
Likewise, those who live near the same registrant's place of
employment are not `likely to encounter' the registrant at
his home. Yet in both instances, notification includes the
same information . . . ." Id.

We are not persuaded. First, information that an offender
does not spend all of his time in the vicinity, but does have
a residence or a place of employment/school elsewhere,
_________________________________________________________________

19. As the Court expressly recognized in Hendricks, "[p]revious instances
of violent behavior are an important indicator of future violent
tendencies." 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312, 323
(1993)).

41
may indeed serve a remedial purpose in helping individuals
know when it is that they are "likely to encounter" the
offender. Moreover, even if this were not so, a decision not
to expend the resources necessary to tailor each notice to
the circumstances of the person receiving notice is hardly
inconsistent with good faith pursuit of the declared
remedial purposes.

Having found a reasonable "fit" between end and means,
we turn to historical precedent. To appellants, the
dissemination of information beyond law enforcement
personnel is closely analogous to the well-recognized
historical punishments of public shaming, humiliation and
banishment as those practices were employed in colonial
times. We rejected a very similar argument in United States
v. Criden, 648 F.2d 814 (3d Cir. 1981). There, the district
court had denied the media the right to copy, for
rebroadcast, video and audio tapes admitted into evidence
and played to the jury during a criminal trial. In support of
its decision to foreclose post-trial dissemination of public
record information to the public, the district court made the
following observation:

The greater and more widespread the publicity about
a particular criminal case, the more likely it is that
penalties not prescribed by the law will be visited upon
the accused and, more importantly, upon innocent
relatives and friends. . . .

Given the nature of our society these side effects are
inevitable; indeed, it can be argued that they form an
important, if unofficial, part of the sanctions imposed
by society upon lawbreakers. The unfortunate fact is,
however, that these side effects are not uniformly
visited upon persons accused of violating the law. And,
since they are not an official part of the criminal justice
process, and are beyond the reach of that process,
there is probably no acceptable way of ensuring
uniformity of application.

Id. at 824 (quoting United States v. Criden, 501 F. Supp.
854, 860 (E.D. Pa. 1980)). In pursuing this theme, the
district court likened the proposed rebroadcast to placing
the defendant in public stocks.

42
We rejected the tendered analogy:

Nor can we accept the [district] court's strained
analogy of rebroadcast to "parading a convicted
defendant through the streets, or holding him up to
public ridicule by exhibiting him in a cage or in the
stocks." 501 F. Supp. at 860.

Id. at 825. Nor can we accept the suggested analogy
between notification's re-publication of information publicly
available at the time of a sex offender's trial and the holding
of a convicted defendant up to public ridicule. Public
shaming, humiliation and banishment all involve more than
the dissemination of information. State dissemination of
information about a crime and its perpetrators was
unnecessary in colonial times because all in the colonial
settlement would have knowledge of these matters. Rather,
these colonial practices inflicted punishment because they
either physically held the person up before his or her fellow
citizens for shaming or physically removed him or her from
the community.

The "sting" of Megan's Law for Tier 2 and 3 registrants
results not from their being publicly displayed for ridicule
and shaming but rather from the dissemination of accurate
public record information about their past criminal
activities and a risk assessment by responsible public
agencies based on that information. This distinction makes
a substantial difference when one looks for the relevant
historical understanding of our society. Dissemination of
information about criminal activity has always held the
potential for substantial negative consequences for those
involved in that activity. Dissemination of such information
in and of itself, however, has never been regarded as
punishment when done in furtherance of a legitimate
governmental interest.

When there is probable cause to believe that someone
has committed a crime, our law has always insisted on
public indictment, public trial, and public imposition of
sentence, all of which necessarily entail public
dissemination of information about the alleged activities of
the accused. As this court has explained, we insist upon
this public dissemination for a number of reasons: It

43
"heightens public respect for the judicial process," it
"permits the public to . . . serve as a check upon the
judicial process," and it "plays an important role in the . . .
free discussion of governmental affairs." Publicker
Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.
1984) (internal quotation marks omitted). Wholly
independent of the criminal sanctions that conviction may
entail, the consequences of our law requiring this public
dissemination of information can be severe. In every case,
a conviction becomes a matter of public record, and in
many cases that conviction may receive widespread media
attention. Depending upon the crime and the
circumstances, information disseminated as a result of our
insistence on public prosecution may be the source of a
wide range of adverse consequences for the convicted
defendant, running from mild personal embarrassment to
social ostracism and/or vigilante retribution. Employment
may be lost, and the opportunity for future employment
may be dramatically reduced. It may take a lifetime of effort
on the part of a convicted defendant to restore previously
existing relationships with those with whom he deals
personally, and restoration of his reputation among others
may never occur. Nevertheless, our laws' insistence that
information regarding criminal proceedings be publicly
disseminated is not intended as punishment and has never
been regarded as such.

We believe the required dissemination of information
generated by our criminal justice system and the
subsequent dissemination of "rap sheet" information to
regulatory agencies, bar associations, prospective employers
and interested members of the public20 constitute far more
_________________________________________________________________

20. New Jersey law specifically guarantees public access to all court
records, including those concerning criminal prosecutions. See Doe, 662
A.2d at 407 (citing Executive Order No. 123). Moreover, as the New
Jersey Supreme Court noted in Doe, any person, under New Jersey law,
"may obtain a complete criminal history from the State Police by
providing a name and either date of birth or social security number and
paying a fifteen dollar fee." Id.

44
compelling analogies than the stocks, cages, and scarlet
letters referenced by appellants.21

We also agree with appellees that various forms of state
warnings about threats to public safety provide more apt
analogies to Tier 2 and Tier 3 notification than the
referenced colonial practices. In order to provide members
of the public with an opportunity to take steps to protect
themselves, the government has traditionally published
appropriate warnings about a range of public hazards.
Posters warning that a pictured individual is abroad in the
community and to be regarded as armed and dangerous
come most readily to mind. But there are others as well.
The state has traditionally, for example, posted quarantine
notices when public health is endangered by individuals
with infectious diseases. Cf. Hendricks, 117 S. Ct. at 2084
("A State could hardly be seen as furthering a`punitive'
purpose by [isolating] persons inflicted with a[ ] highly
_________________________________________________________________

21. "Rap Sheets" are less readily available today than in days past, but
this reflects a policy judgment about the appropriate balance between
the defendant's interest in getting a new start and the interest of others
who might find "Rap Sheet" information relevant to their decision
making. See Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 764-65 (1989) (observing federal and state statutory
and regulatory limitations on access to "Rap Sheets"). It does not reflect
a general understanding that the dissemination of "Rap Sheet"
information by the government is additional punishment.

While the Supreme Court recognized in Reporters Committee that "Rap
Sheets" are protected under the privacy-for-law-enforcement-records
exemption to the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C),
such protection reflects a Congressional policy judgment, not federal
Constitutional law. See id. at 762 n.13. The Court explained:

The question of the statutory meaning of privacy under the FOIA
is, of course, not the same as the question whether a tort action
might lie for invasion of privacy or the question whether an
individual's interest in privacy is protected by the Constitution. See,
e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
(Constitution prohibits State from penalizing publication of name of
deceased rape victim obtained from public records); Paul v. Davis,
424 U.S. 693, 712-714 (1976) (no constitutional privacy right
affected by publication of name of arrested but untried shoplifter).

Id.

45
contagious disease.").22 Significantly, these warnings
communicate not only facts about past events but also the
fact that a public agency has found a significant future risk
based on those events.

Whenever these state notices are directed to a risk posed
by individuals in the community, those individuals can
expect to experience embarrassment and isolation.
Nevertheless, it is generally recognized that the state has a
right to issue such warnings and the negative effects are
not regarded as punishment. Because the closest analogies
have not historically been regarded as punishment, we
conclude that historical precedent does not demonstrate an
objective punitive purpose.

Finally, we turn to the third consideration involved in
assessing objective purpose. That consideration, as we
understand it, is a savings provision--that is, even if the
remedial purpose of a measure cannot fairly be said to
justify all of its aspects, it will nevertheless be found
nonpunitive if measures of this type, like taxes, have
traditionally served both remedial and deterrent purposes
and the particular measure before the court serves such
purposes in a manner consistent with its analogous
antecedents. Having concluded that the remedial purpose
of Megan's Law justifies all of its aspects, it necessarily
follows in this case, as it did in Artway, 81 F.3d at 1266,
that this third consideration does not counsel in favor of a
finding that it is punitive.

E. Effects

As we have indicated, we hypothesized in Artway that "a
law [could] constitute unconstitutional `punishment'
because of its effects" even where no actual or objective
punitive purpose is shown. 81 F.3d at 1260. We explained:

[An] examination of effects, like the Austin [v. United
States, 509 U.S. 602 (1993),] inquiry into history, is
_________________________________________________________________

22. Other examples are provided by the New Jersey statutes requiring
public notice when an adult inmate is considered for parole and notice
to victims upon a defendant's release from incarceration. See N.J.S.A.
30:4-123.48g & 123.45b(5); N.J.S.A. 52:4B-44b(21).

46
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," . . . at some level the "sting" will be so
sharp that it can only be considered punishment
regardless of the legislators' subjective thoughts.

Id. at 1261.

It is clear from Artway, however, that for the effects of a
measure to render it "punishment," those effects must be
extremely onerous. Even deprivation of one's livelihood is
not sufficiently onerous. Flemming v. Nestor , 363 U.S. 603
(1960) (termination of social security benefits); Hawker v.
New York, 170 U.S. 189 (1898) (revocation of license to
practice one's profession). Moreover, while Artway's third
prong serves as an independent hurdle that a legislative
measure must surmount, when it is applied, the burden
imposed must still be evaluated in the light of the
importance of any legitimate governmental interest served.
The only examples the case law suggests of effects
sufficiently onerous are deprivation of one's United States
citizenship that leaves one a "stateless person" and a
complete deprivation of personal freedom (i.e.,
incarceration). Even these deprivations are not per se
punishment, however. While in some circumstances
making one a "stateless person" is punishment,
denaturalization as a remedy for citizenship fraudulently
obtained is regarded not as punishment but as a necessary
part of regulating naturalization of aliens. See Trop, 356
U.S. at 98. Even incarceration is not always punishment.
Pre-trial detention and post-sentence civil commitment of
dangerous offenders have both been expressly found to be
nonpunitive measures when justified by important state
interests. See United States v. Salerno, 481 U.S. 739 (1987);
Hendricks, 117 S. Ct. at 2072.

The direct effects of Megan's Law clearly do not rise to
the level of extremely onerous burdens that sting so
severely as to compel a conclusion of punishment. All
Megan's Law mandates is registration and notification.
Under Megan's Law, New Jersey has not deprived
appellants of their freedom or their citizenship. The state

47
has imposed no restrictions on a registrant's ability to live
and work in a community, to move from place to place, to
obtain a professional license or to secure governmental
benefits.

What concerns registrants, however, are the 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. People interact
with others based on the information they have about
them. Knowing that someone is a convicted sex offender
and has been evaluated as a continuing risk is likely to
affect how most people treat that person.

There can be no doubt that the indirect effects of Tier 2
and Tier 3 notification on the registrants involved and their
families are harsh. The record documents that registrants
and their families have experienced profound humiliation
and isolation as a result of the reaction of those notified.
Employment and employment opportunities have been
jeopardized or lost. Housing and housing opportunities
have suffered a similar fate. Family and other personal
relationships have been destroyed or severely strained.
Retribution has been visited by private, unlawful violence
and threats and, while such incidents of "vigilante justice"
are not common, they happen with sufficient frequency and
publicity that registrants justifiably live in fear of them. It
also must be noted that these indirect effects are not short-
lived. While there are suggestions in the record that the
circumstances of a registrant may stabilize as time passes
after notification, the statute permits repeat notification
over a period of many years.

The primary sting from Megan's Law notification comes
by way of injury to what is denoted in constitutional
parlance as reputational interests. This includes the
burdens of isolation, harassment, loss of opportunities, and
the myriad of more subtle ways in which one is treated
differently by virtue of being known as a potentially
dangerous sex offender. The other type of indirect effect is
exposure to an increased risk of private violence that can
result in damage to one's property or injury to one's person.
We will focus on each class of indirect effects in turn.

48
Injury to reputation has traditionally been regarded in
our society as a serious matter. Our law of defamation has
from our earliest days protected reputation and provided
compensation for wrongful injury to reputational interests.
It has provided recourse, for example, for those whose
reputations are injured by false allegations of criminal
activity. At the same time, however, reputational interests
have not been accorded the same level of protection in our
society as interests that have been found "implicit in the
concept of ordered liberty." Paul v. Davis , 424 U.S. 693,
713 (1976).

In Paul v. Davis, law enforcement officials decided to alert
local area merchants to possible shoplifters who might be
operating during the Christmas season. They distributed a
"flyer" to 800 merchants which contained the name and
"mug shot" photo of individuals described as"Active
Shoplifters." Davis, who had previously been arrested for--
but never convicted of--shoplifting was included.

Davis brought a civil rights action against the law
enforcement officials arguing that, by destroying his
reputation in the community, they had violated his"right to
privacy guaranteed by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments." Id. at 712. Though
acknowledging that the Constitution secures a right to
personal privacy, the Supreme Court rejected the notion
that Davis' interest in his reputation was sufficiently
fundamental to come within that constitutional right. The
Court observed:

In Roe [v. Wade, 410 U.S. 113 (1973)], the Court
pointed out that the personal rights found in this
guarantee of personal privacy must be limited to those
which are "fundamental" or "implicit in the concept of
ordered liberty" as described in Palko v. Connecticut,
302 U.S. 319, 325 (1937). The activities detailed as
being within this definition were ones very different
from that for which respondent claims constitutional
protection--matters relating to marriage, procreation,
contraception, family relationships, and child rearing
and education. In these areas it has been held that
there are limitations on the States' power to
substantively regulate conduct.

49
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. at 713.

The indirect effects experienced by Tier 2 and Tier 3
registrants, while quite likely more profound than those
complained of by Davis, are clearly of a similar nature. 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. The reputational interests asserted by
appellants are "very different" from matters relating to
marriage, procreation, and child rearing, and are therefore
"far afield" from what has been deemed "fundamental" by
the Constitution.23

Hendricks, and the long line of cases on which it relies,
_________________________________________________________________

23. Reporters Committee, 489 U.S. at 749, does not call Paul's teaching
into question. We do not agree with the Supreme Court of New Jersey's
conclusion in Doe that the recognition in Reporters Committee of a
statutory right to privacy for "Rap Sheets" under FOIA dictates that a
federal Constitutional right to privacy is implicated by notification. See
Doe, 662 A.2d at 410-11. As mentioned above, Reporters Committee
noted the differences between "privacy" under FOIA and an "individual's
interest in privacy" under the federal Constitution. 489 U.S. at 762 n.13.

50
counsels that bona fide remedial legislation may inflict very
substantial individual hardship without implicating the Ex
Post Facto and Double Jeopardy Clauses. It necessarily
follows that some limit must be placed on the situations in
which a measure's sting alone, despite its remedial purpose
and effect, will constitute punishment under those clauses
and that classification as punishment on the basis of sting
alone must be reserved for cases involving deprivation of
the interests most highly valued in our constitutional
republic. "[F]reedom from physical restraint`has always
been at the core of the liberty protected' " by the
Constitution. Hendricks, 117 S. Ct. at 2079 (quoting
Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Freedom of
thought and expression and freedom from state interference
with the privacy interests identified in Davis are similarly
"implicit in our concept of ordered liberty." Davis, 424 U.S.
at 713. Interests such as these are sufficiently fundamental
to our constitutionally secured liberty that state
interference with them can be justified only by the most
important of state interests.24Davis establishes that
reputational interests are not among these fundamental
liberty interests.

We believe the state's interest protecting the public here
is similar to, and as compelling as, the state interest served
by the civil commitment statute in Hendricks. Accordingly,
based on Hendricks, we believe that the state's interest here
would suffice to justify the deprivation even if a
fundamental right of the registrant's were implicated. Given
that something less than a fundamental interest is
implicated, the impact of Megan's Law on the registrants'
reputational interests is necessarily insufficient alone to
constitute "punishment."
_________________________________________________________________

24. As we explained in Planned Parenthood of Southeastern Pennsylvania
v. Casey, 947 F.2d 682, 688 n.1 (3d Cir. 1991), aff'd in part and rev'd
in part, 505 U.S. 833 (1992):

Government interference with personal rights within the scope of the
life, liberty, or property umbrella of the Due Process Clauses must
be justified by a legitimate state interest; government interference
with a "fundamental right" may be justified only by the most
important of state interests.

51
We now turn to the second type of indirect effects arising
from notification. As we earlier observed, the record bears
evidence of retributive assaults on registrants by private
individuals. There is also evidence of vandalism and other
damage to property of registrants and their associates. As
we have also noted, however, each notification is
accompanied by a warning against misuse of the
information conveyed and an assurance that any private
violence will be prosecuted. This is thus not a situation in
which the state has encouraged private violence. Nor is it a
situation in which the state has in some way incapacitated
a person from taking steps to protect him- or herself
against private violence or has deprived a citizen of the law
enforcement protection accorded to others in the population
generally. On the contrary, the state has taken affirmative
steps to discourage private violence in response to
notification, and is providing registrants with the law
enforcement protection available to others.

We agree with the district court that the risk of private
violence stems primarily from a registrant's past criminal
activity. The most that can be said about notification is that
the state, by disseminating accurate information about a
registrant's crime and its assessment of future risk, may
materially extend the period during which the increased
risk of private violence may exist. While the extension of
that increased risk is understandably of concern to
plaintiffs, they have not persuaded us that the magnitude
of the risk is such as to require classification of its
extension as punishment. Although the record reflects that
personal injury and property damage from private violence
has occurred, it also reflects that these occurrences are
relatively rare. Of the 135 notifications completed in New
Jersey for which there is record data, only two occasioned
assaults or property damage deemed serious enough by the
victim-registrant to warrant a report to law enforcement
authorities. Even if we were prepared to broaden our
consideration to include examples of physical harm to
registrants not reported to police, this would increase the
total number of record cases to just three. Our record with
respect to Washington and Oregon also evidences that

52
reported instances of personal injury or property damage
are rare.25

As we view this matter, there is unfortunately a
background risk of private violence that is necessarily
assumed by everyone in our society. When one commits a
reprehensible crime and is publicly prosecuted, that risk is
undoubtedly augmented to a limited degree. The duration
of that degree of augmented risk is likely to be extended by
notification pursuant to Megan's Law and this is
understandably a concern for registrants. Nevertheless, we
believe the Supreme Court would not regard this indirect
effect of Megan's Law as sufficiently burdensome to require
classification of the law as punitive. Certainly, in terms of
the impact on the everyday lives of registrants, the burden
of this aspect of Megan's Law pales by comparison to the
civil commitment of sex offenders sanctioned in Hendricks.

F. Satisfaction Of The Artway Test

Because Megan's Law satisfies each of the three elements
of the Artway test, we hold that the notification required by
Megan's Law does not constitute punishment for purposes
of the Ex Post Facto and Double Jeopardy Clauses.
_________________________________________________________________

25. The Supreme Court has held that "[a]mong the historic liberties . . .
protected [by the Constitution is] a right to be free from . . . unjustified
[state] intrusions on personal security." Ingraham v. Wright, 430 U.S.
651, 673 (1977). For citizens who are not in the custody of the state,
however, this right does not include the right to state protection from
private violence. See DeShaney v. Winnebago County Dep't of Soc.
Services, 489 U.S. 189 (1989). The "state created danger" cases based
upon this right to personal security do not recognize a right that is
implicated here because they do not involve situations where the risk
created is justified by the state's pursuit of a legitimate public interest.
See, e.g., Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir.
1989).

53
VI. THE PROCEDURAL DUE PROCESS ISSUES

A. Deprivation Of A Liberty Interest

The Fourteenth Amendment of the United States
Constitution provides that "no person shall be deprived of
life, liberty, or property without due process of law." U.S.
Const. Amend. XIV. Appellants insist that they have a
liberty interest that entitles them to the protection of
procedural due process under this provision. Appellees
insist that there is no such interest.

Liberty interests that trigger procedural due process may
be created by state law or by the federal constitution itself.
See Sandin v. Conner, ___ U.S. #6D6D 6D#, 115 S.Ct. 2293 (1995).
We need not reach the issue of whether appellants have a
liberty interest recognized by the federal constitution
because we are satisfied that appellants have a liberty
interest created by the New Jersey Constitution of which
they cannot be deprived without being accorded the process
due under the Fourteenth Amendment.

If a state law requires that the freedom of a person on
parole or probation cannot be taken away without cause,
the state has created a liberty interest that cannot be taken
away without the process due under the Fourteenth
Amendment. See Gagnon v. Scarpelli, 411 U.S. 778 (1973);
Morrissey v. Brewer, 408 U.S. 471 (1972). Similarly here,
we know from Doe that the New Jersey Constitution gives
Tier 2 and Tier 3 registrants the right to be free from Tier
2 and Tier 3 notification absent a showing of an overriding
state interest. The New Jersey Supreme Court there held
not only that Tier 2 and Tier 3 registrants had a right to the
procedural due process guaranteed by the New Jersey
Constitution, but also that they had a substantive right
under that Constitution to be free of the disclosures
required by Megan's Law, absent a demonstration that
such disclosures are required by a legitimate and
substantial state interest.26 As the court explained:
_________________________________________________________________

26. Compare Tony L. v. Childers, 71 F.3d 1182 (6th Cir. 1995), cert.
denied, ___ U.S. ___, 116 S. Ct. 1834 (1996) (holding that state statutes
which merely establish procedures and do not mandate any particular
substantive result do not give rise to a state-created "liberty interest").

54
With its declaration of the right to life, liberty, and the
pursuit of happiness, Article I, § 1 of the New Jersey
Constitution encompasses the right of privacy. . . . We
have found a constitutional right of privacy in many
contexts, including the disclosure of confidential or
personal information. Hennessey v. Coastal Eagle Point
Oil Co., 129 N.J. 81, 96, 609 A.2d 11 (1992) (citing In
re Martin, 90 N.J. 295, 447 A.2d 1290 (1982)).

In resolving conflicts between the government's need
for information and the individual's right of
confidentiality, this Court has adopted a balancing test
similar to that adopted by the federal courts. Martin,
supra, 90 N.J. at 318, 447 A.2d 1290. We concluded, in
Martin, that " `even if the governmental purpose is
legitimate and substantial . . . the invasion of the
fundamental right of privacy must be minimized by
utilizing the narrowest means which can be designed to
achieve the public purpose.' " Ibid. (quoting Lehrhaupt
v. Flynn, 140 N.J.Super. 250, 262, 264, 356 A.2d 35
(App.Div. 1976), aff'd o.b., 75 N.J. 459, 383 A.2d 428
(1978)). . . .

662 A.2d at 412.27
_________________________________________________________________

27. While it is clear that deprivation of a state created liberty interest
triggers due process protection, and that a state created right to be free
of physical restraint is such an interest, the scope of the phrase "liberty
interest" as used in the context of the Due Process Clause has not been
fully delineated. See, e.g., Paul, 424 U.S. at 708-09 (observing that
deprivation of a state law right to obtain liquor in anonymity when
combined with the stigma of defamation would implicate a state-created
"liberty interest," while the stigma alone would not do so). The phrase
"property interest" in this context has been broadly construed, however,
to include contract rights, choses-in-action, and a right to state created
benefits. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 807
(1985) (legal and equitable claims); Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 9-10 (1978) (utility service); Goss v. Lopez, 419 U.S.
565, 574 (1975) (school attendance); Perry v. Sindermann, 408 U.S. 593,
602 (1972) (employment contract). Indeed, "property interest" has been
interpreted so as to extend procedural due process protection to virtually
all rights that states will enforce in a court of law. With this background,
we believe that the Supreme Court would interpret"liberty interest" in
the context of the Due Process Clause to include a state created right to
privacy like that recognized in Doe.

55
B. Standards For Determining The Process Due

Having concluded that Tier 2 and Tier 3 registrants are
entitled to due process under the Fourteenth Amendment
of the federal Constitution, we turn to the issue of what
process is due them. Appellants contend that two
procedural protections are due that are absent from the
Megan's Law scheme. They insist that due process requires
both that the burden of persuasion at a Megan's Law
hearing be on the state rather than the registrant, and that
the state's burden at such a hearing be to demonstrate the
propriety of the tier classification and the notification plan
by clear and convincing evidence.28
_________________________________________________________________

28. As we have noted, appellants also argue that the notice of a
proposed notification cannot be dispensed with in emergency situations
as the Supreme Court of New Jersey has suggested. We decline to
address that issue for the same reason that we declined to do so in
Artway--it is unripe. 81 F.3d at 1252; see Abbott Labs. v. Gardner, 387
U.S. 136 (1967). "The right to notice is not absolute;" instead, due
process provides for a right to " `reasonably calculated' notice." Artway,
81 F.3d at 1252 (quoting Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)). "[T]he State cannot dispense with notice when
that notice is possible and irreparable harm could result." 81 F.3d at
1252; see United States v. Raffoul, 826 F.2d 218, 224 (3d Cir. 1987).

The Megan's Law standard for dispensing with notice, as articulated in
Doe and the Guidelines, involves cases where it is "impossible as a
practical matter" to give notice or to do so in a timely manner. 662 A.2d
at 382; Guidelines at 17. None of the representative plaintiffs asserts
that his notification issued absent notice; nor is there anything in the
record indicating that New Jersey's prosecutors have ever dispensed with
notice or plan to do so. The only indication we have as to what
circumstances would meet the standard is the suggestion in the
Guidelines that a prosecutor may apply for a court order to effect
notification absent notice where she does not receive notice of the release
of a sex offender until after the date of release or she can demonstrate
that she made "every good faith effort" to serve a registrant who merely
avoided service. Guidelines at 17-18. As in Artway, we simply do not
have the necessary "factual matrix" against which to evaluate this
standard. 81 F.3d at 1252.

There is another consideration which, as it did in Artway, would
prevent us from reaching the notice issue here--the Pullman abstention
doctrine. Id. at 1252 n.12; see Railroad Comm'n v. Pullman, 312 U.S.

56
Mathews v. Eldridge, 424 U.S. 319 (1976), provides the
framework we must apply to analyze both the burden of
persuasion claim--whether it is the state or the registrant
who must persuade the court on the material points--and
the standard of proof claim--whether, if the burden of
persuasion is on the state, the state must prove its case by
a preponderance or by clear and convincing evidence. As
Mathews teaches:

[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). .. .

More precisely, our prior decisions indicate that
identification of the specific dictates of due process
generally requires consideration of three distinct
factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government's interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.

Mathews, 424 U.S. at 334-35.

The Supreme Court has twice applied the Mathews test
in the specific context of a challenge to the preponderance
of evidence standard of proof. Santosky v. Kramer, 455 U.S.
745 (1982), posed the issue of whether due process
requires the state to prove its case in a termination of
parental rights proceeding by clear and convincing
evidence, rather than merely by a preponderance of
evidence. Addington v. Texas, 441 U.S. 418 (1979),
presented the issue of the state's burden in a civil
_________________________________________________________________

496 (1941). The New Jersey courts have yet to interpret the "impossible
as a practical matter" standard, and "[t]o the extent state court
interpretation would make the standard comport with due process,
abstention would probably be appropriate even if the issue were ripe." 81
F.3d at 1252 n.12.

57
commitment proceeding. In each instance, the Court, in
addition to identifying the private and public interests at
stake and evaluating the relative risk of error in the
particular kinds of proceedings involved, addressed whether
the standard employed "fairly allocates the risk of an
erroneous factfinding between the[ ] parties." Santosky, 455
U.S. at 761. As the Santosky Court explained:

Addington teaches that, in any given proceeding, the
minimum standard of proof tolerated by the due
process requirement reflects not only the weight of the
private and public interests affected, but also a societal
judgment about how the risk of error should be
distributed between the litigants.

Id. at 755.

In both Santosky and Addington, the Court held that due
process required the state to carry the burden of
persuasion by more than a preponderance of the evidence,
since the preponderance standard requires litigants to
"share the risk of error in roughly equal fashion."
Addington, 441 U.S. at 423. Neither a person threatened
with a termination of parental rights nor one standing in
jeopardy of a civil commitment "should . . . be asked to
share equally with society the risk of error when the
possible injury to the individual is significantly greater than
any possible harm to the state." Id. at 427.

58