IN THE MATTER OF REGISTRANT G.H. IN THE MATTER OF REGISTRANT G.A. (ML-00200521, UNION COUNTY AND STATEWIDE, AND ML-07130018, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) (CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2388-16T1
A-3132-16T1

IN THE MATTER OF REGISTRANT G.H. APPROVED FOR PUBLICATION
________________________________
August 6, 2018

IN THE MATTER OF REGISTRANT G.A. APPELLATE DIVISION
________________________________

Argued May 21, 2018 – Decided August 6, 2018

Before Judges Messano, Accurso, and
O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Union County and Middlesex
County, Docket Nos. ML-00200521 and ML-
07130018.

Stephanie A. Lutz, Assistant Deputy Public
Defender, argued the cause for appellants
G.H. and G.A. (Joseph E. Krakora, Public
Defender, attorney; Stefan J. Erwin,
Assistant Deputy Public Defender, of
counsel; Stephanie A. Lutz, of counsel and
on the briefs).

Emily R. Anderson, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (Gurbir S. Grewal, Attorney General,
attorney; Emily R. Anderson, of counsel and
on the briefs).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

We consolidated these appeals to issue a single opinion

because they present the same legal issue. G.H. and G.A. were
convicted of sexual offenses, see N.J.S.A. 2C:7-2(b), prior to

2002, when the Legislature amended the registration provisions

of Megan's Law, N.J.S.A. 2C:7-1 to -23, by enacting a new

subsection, N.J.S.A. 2C:7-2(g) (subsection (g)), see L. 2001, c.

392. Subsection (g) provides in relevant part:

A person required to register under this
section who has been convicted of . . . more
than one sex offense . . . or who has been
convicted of . . . aggravated sexual assault
pursuant to [N.J.S.A. 2C:14-2(a)] or sexual
assault pursuant to [N.J.S.A. 2C:14-2(c)(1)]
is not eligible . . . to make application to
the Superior Court of this State to
terminate the registration obligation.

[(Emphasis added).]

Subsection (g) took "effect immediately" on January 8, 2002. L.

2001, c. 392, § 2. As a result, the lifetime registration

requirements of Megan's Law became "permanent[ and] irrevocable"

for certain offenders. In re State ex rel. C.K., 233 N.J. 44,

66 (2018).

Neither G.H. nor G.A. has committed an offense for more

than fifteen years since his release from custody. Prior to the

adoption of subsection (g), both would have been eligible for

relief from lifetime registration pursuant to N.J.S.A. 2C:7-2(f)

(subsection (f)), which provides any registrant may

make application to the Superior Court . . .
to terminate the obligation upon proof that
the person has not committed an offense
within 15 years following conviction or

2 A-2388-16T1
 release from a correctional facility for any
term of imprisonment imposed, whichever is
later, and is not likely to pose a threat to
the safety of others.

[Ibid.]

However, because G.H. was convicted of more than one sexual

offense, and both G.H. and G.A. were convicted of offenses

listed in subsection (g), the respective trial courts denied

their requests to terminate registration obligations.

G.H. and G.A. argue the Legislature did not intend

"subsection (g) to apply retroactively" to convictions that

predated its passage, and, "[r]egardless of legislative intent,"

retroactive application would result in "manifest injustice and

interference with vested rights." The State contends G.H. and

G.A. were not eligible for and did not seek relief under

subsection (f) until after the Legislature enacted subsection

(g), and therefore the trial courts did not apply subsection (g)

retroactively. Alternatively, the State contends the

Legislature intended subsection (g) to apply retroactively to

registrants like G.H. and G.A.

I.

In Doe v. Poritz, 142 N.J. 1, 12-13 (1995), the Court

upheld the constitutionality of the registration and community

notification provisions of Megan's Law, first enacted in 1994.

As the Court noted, the registration obligations mandated by

3 A-2388-16T1
N.J.S.A. 2C:7-2 are significant and trigger additional

consequences, notably potential criminal liability for failing

to register. Id. at 21-22; see N.J.S.A. 2C:7-2(a)(3) (making it

a third-degree crime for failing to register).1 The notification

provisions require community-wide dissemination of the location

of a sex offender's residence. N.J.S.A. 2C:7-6 to -10

(requiring public notification of a sex offender's residence

upon "release to the community"). The Doe Court concluded the

legislation was "clearly and totally remedial in purpose" and

"designed simply and solely to enable the public to protect

itself from the danger posed by sex offenders." Doe, 142 N.J.

at 73.

Although the law imposed these "lifetime requirements" on

every defendant when convicted, id. at 21, subsection (f)

provided potential relief. "The underlying assumption of

[subsection (f)] [was] that when a registrant, who has been

offense-free for fifteen or more years, no longer poses a risk

to the safety of the public, keeping him bound to the

registration requirements no longer serves a remedial purpose."

C.K., 233 N.J. at 64.

1
The Legislature increased the penalty for failing to register
from a fourth-degree to a third-degree crime in 2007. L. 2007,
c. 19.

4 A-2388-16T1
 Subsection (g) was enacted to comply with 1996 amendments

to the Jacob Wetterling Crimes Against Children and Sexually

Violent Offender Registration Act of 1994 (Wetterling Act), Pub.

L. No. 104-236, §§ 3-7, 110 Stat. 3096, 3097 (repealed 2006),

and ensure continued federal funds for New Jersey. C.K., 233

N.J. at 61; In re L.E., 366 N.J. Super. 61, 65-66 (App. Div.

2003). The Wetterling Act "direct[ed] the federal Attorney

General to establish guidelines for state programs such as

Megan's Law that require the registration of persons guilty of

offenses of the kind committed by the registrants herein and

prescribes the length of time for which offenders must remain

registered." L.E., 366 N.J. Super. at 66 (citing 42 U.S.C. §

14071(a)(1)) (repealed by U.S.C. §§ 16901-91). "As a result of

the Wetterling Act . . . all fifty states and the District of

Columbia ha[ve] both sex offender registration systems and

community notification programs." United States v. Begay, 622

F.3d 1187, 1190 (9th Cir. 2010).

Congress has since repealed the Wetterling Act and replaced

it with the Adam Walsh Child Protection and Safety Act. C.K.,

233 N.J. at 61 (citing Pub. L. No. 109-248, 120 Stat. 587

(codified at 42 U.S.C. §§ 16901-91 (repealing 42 U.S.C. §§

14071-73))). Title I of that act, the Sex Offender Registration

and Notification Act (SORNA), "establishe[d] a national baseline

5 A-2388-16T1
for sex offender registration and requires that states receiving

federal crime funds substantially comply with the guidelines it

outlines." Ibid. (citing 34 U.S.C. § 20927; 34 U.S.C. §

10151). "[M]ost states, including New Jersey, have not

substantially implemented SORNA." Id. at 61-62 (citation

omitted).

In C.K., 233 N.J. at 76, the Court concluded subsection (g)

violated the due process rights of juveniles, imposing

"continued constraints on their lives and liberty . . . long

after they have become adults," thereby transcending the

remedial purpose of Megan's Law and "tak[ing] on a punitive

aspect that cannot be justified by our Constitution." The Court

was not required to and did not address whether irrevocable

lifetime registration pursuant to subsection (g) applied to a

registrant — adult or juvenile — who committed his offense prior

to subsection (g)'s effective date. See id. at 50 (explaining

C.K. was adjudicated delinquent in 2003).

The Violent Predator Incapacitation Act (VPIA) was enacted

as a "component" of Megan's Law at the time of its passage in

1994. State v. Schubert, 212 N.J. 295, 305 (2012). The VPIA

specifically required that a court impose a "special sentence of

community supervision for life" (CSL) on all defendants

convicted of certain offenses. N.J.S.A. 2C:43-6.4(a). The

6 A-2388-16T1
Legislature subsequently amended the statute, replacing CSL with

parole supervision for life (PSL). L. 2003, c. 267, § 1. The

amendment was more than "a simple change in nomenclature," State

v. Perez, 220 N.J. 423, 441 (2015), and significantly increased

penal consequences for violations of the conditions of

supervision. See State v. Hester, ___ N.J. ___, ___ (2018)

(slip op. at 7-9) (explaining the differences between CSL and

PSL and the consequences of those differences).

However, despite these legislative changes, one provision

of the VPIA that "mirrors [subsection (f)]," In re J.S., 444

N.J. Super. 303, 312 (App. Div.), certif. denied, 225 N.J. 339

(2016), has remained constant. Pursuant to N.J.S.A. 2C:43-

6.4(c), an offender who has not committed a crime for fifteen

years since his last conviction or release, and who no longer

poses a threat to public safety, "may petition the Superior

Court for release from . . . supervision."

Thus, the Legislature's decision to retain N.J.S.A. 2C:43-

6.4(c) results in the anomalous situation of permitting some

registrants, who have clearly and convincingly demonstrated

their successful rehabilitation, relief from the onerous

conditions of lifetime supervision, see N.J.A.C. 10A:71-6.11(b);

Schubert, 212 N.J. at 307 (noting "significant

restrictions . . . attendant to [CSL]"), yet at the same time

7 A-2388-16T1
foreclosing them any relief from lifetime registration and

community notification. In re J.M., 440 N.J. Super. 107, 116-17

(Law Div. 2014).

II.

G.H. pled guilty in 1996 to three counts of second-degree

sexual assault, N.J.S.A. 2C:14-2b and -2(c)(5), and one count of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b).

The offenses were committed on different dates with different

minor victims. The judge sentenced G.H. in 1997 to concurrent

eight-year terms in the Adult Diagnostic & Treatment Center and

CSL; G.H. was paroled in 2000.

In February 2016, G.H. moved under subsection (f) for

relief from his registration obligations and termination of CSL.

He certified that since his release, he became gainfully

employed, married, had two children and remained offense free.

G.H. also certified that prior to entering his guilty pleas,

based upon discussions with trial counsel, he had a reasonable

expectation he could obtain relief from lifetime registration if

he "remained offense free for fifteen years". G.H. attached

several professional evaluations that generally concluded he

presented no threat to public safety and was unlikely to

recidivate.

8 A-2388-16T1
 In an oral opinion following argument, the judge concluded

G.H. had been convicted of more than one sexual offense,

including a conviction for aggravated sexual assault. As a

result, G.H. was ineligible for relief from registration under

subsection (g). However, the judge also concluded that G.H. had

"met his burden for termination of CSL obligations." The judge

entered a conforming order on January 18, 2017, and this appeal

followed.

In 2001, G.A. pled guilty to an accusation alleging he

committed an act of sexual penetration by "using force or

coercion," i.e., second-degree sexual assault, N.J.S.A. 2C:14-

2(c).2 The judge imposed a two-year probationary term, with a

condition that G.A. serve 364 days in the county jail, CSL and

registration under Megan's Law.

After fifteen offense-free years, G.A. sought relief from

registration under subsection (f) and termination of CSL. In

support of his motion, G.A. furnished a report of a recent

psychological evaluation, which stated G.A. was "not likely to

commit another sexual offense and d[id] not present a risk of

harm to others in the community."

2
Before the Law Division judge, G.A. asserted that the offense
was not one listed in subsection (g). Although the transcript
of G.A.'s guilty plea was unavailable, the judge found G.A. pled
guilty to N.J.S.A. 2C:14-2(c)(1), a crime listed in subsection
(g). G.A. does not challenge this finding on appeal.

9 A-2388-16T1
 In December 2016, the judge granted G.A.'s motion to

terminate CSL. However, in a comprehensive written opinion, the

judge denied G.A. relief from the registration requirements of

Megan's Law. She reasoned that subsection (g) was "curative in

nature," and its retroactive application did not result in a

manifest injustice. The judge entered a conforming order on

March 6, 2017, and this appeal followed.

III.

The issue before us is a question of law which we decide de

novo. State v. Revie, 220 N.J. 126, 132 (2014). Appellants

concede that retroactive application of subsection (g) does not

violate federal or state constitutional prohibitions against ex

post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const.

art. IV, § 7, ¶ 3.3 Rather, they argue general rules of

3
We assume appellants chose not to argue subsection (g) violates
ex post facto prohibitions because the Doe Court concluded the
registration requirements, as enacted in 1994, which notably
permitted relief under subsection (f), were remedial and not
punitive. 142 N.J. at 40-75. Indeed, "[t]he majority of state
courts . . . have found that retroactive application of their
respective sex offender registries to offenders with convictions
that pre-date the statute's enactment is not punitive and/or
does not violate the prohibition against ex post facto laws."
Starkey v. Okla. Dep't of Corr., 305 P.3d 1004, 1037-39 n.10
(Okla. 2013) (Winchester, J., dissenting) (outlining state
decisions regarding retroactive application of sex offender
registration and notification statutes).

However, there is some disagreement among our sister states
who have considered the specific issue of whether subsequent
(continued)

10 A-2388-16T1
statutory construction make clear that the Legislature never

intended subsection (g) should apply to registrants sentenced

before its enactment, or, alternatively, regardless of

legislative intent, retroactive application of section (g)

results in a manifest injustice that interferes with

registrants' vested rights to relief.

"The primary goal of statutory interpretation is to

determine as best [as possible] the intent of the Legislature,

(continued)
amendments to an otherwise constitutional registration scheme
that retroactively increase the time of required registration,
eliminate potential relief from registration or otherwise impose
additional burdens, violate ex post facto prohibitions. Compare
Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009) (residency
restriction too punitive when applied retroactively), State v.
Letalien, 985 A.2d 4 (Me. 2009) (retroactive application of
lifetime registration violated ex post facto clause), Doe v.
State, 111 A.3d 1077 (N.H. 2015) (concluding aggregate effects
of amendments to previously constitutional regulatory scheme, in
particular lifetime registration without review, made the
legislation punitive), State v. Williams, 952 N.E.2d 1108 (Ohio
2011) (amendment that increased length of registration period
violated state ex post facto prohibition when applied to a
defendant who committed the crime before effective date of
amendment), and Starkey, 305 P.3d 1004 (Okla. 2013) (finding
retroactive application of lifetime registration was punitive
and violated ex post facto clause), with Lemmon v. Harris, 949
N.E.2d 803 (Ind. 2011) (amendment to registry imposing lifetime
requirements for "sexually violent predators" does not violate
the ex post facto clause), and State v. Rocheleau, 415 P.3d 422
(Kan. 2018) (retroactive application of amendment that increased
registration from ten years to lifetime registration did not
violate ex post facto clause).
Because the issue is not before us, we do not consider
whether the retroactive application of subsection (g) violates
the ex post facto clauses of either the United States or New
Jersey Constitutions.

11 A-2388-16T1
and to give effect to that intent." In re N.B., 222 N.J. 87, 98

(2015) (alteration in original) (quoting State v. Lenihan, 219

N.J. 251, 262 (2014)). "The intent of the Legislature 'begins

with the language of the statute, and the words chosen by the

Legislature should be accorded their ordinary and accustomed

meaning.'" Lenihan, 219 N.J. at 262 (quoting State v. Hudson,

209 N.J. 513, 529 (2012)). "[I]f a statute's plain language is

ambiguous or subject to multiple interpretations, the Court 'may

consider extrinsic evidence including legislative history and

committee reports.'" State v. Frye, 217 N.J. 566, 575 (2014)

(quoting State v. Marquez, 202 N.J. 485, 500 (2010)).

A.

Initially, we dispense with the State's argument that the

trial courts did not give subsection (g) retroactive effect

because neither G.H. nor G.A. were eligible for termination of

their registration obligations until after the Legislature

adopted the provision in 2002. According to the State, "[t]he

important date for analysis is the date the registrant applied

to terminate . . . his or her obligations under Megan's Law, not

the date of his or her conviction."

In Hester, slip op. at 5, the defendants were sentenced to

CSL prior to a 2014 amendment to the VPIA that increased

12 A-2388-16T1
punishment for violations of CSL.4 They were indicted after the

effective date of the amendment for violating general conditions

of their CSL. Id. at 9. The trial judges dismissed the

indictments as violating the Ex Post Facto Clauses of the state

and federal constitutions. Id. at 10.

On appeal, we held that "the 2014 Amendment retroactively

increased defendants' punishment for a CSL violation by

elevating the penalty from a fourth-degree to a third-degree

crime and by mandating the imposition of PSL." Id. at 10-11

(citing State v. Hester, 449 N.J. Super. 314, 318 (App. Div.

2017)). We "rejected the State's argument that the Amendment

did not increase the punishment for defendants' pre-2014 sex

offenses but rather punished the commission of new crimes -- the

CSL violations." Id. at 11 (citing Hester, 449 N.J. Super. at

328-31).

The Court agreed. Id. at 14, 22. Justice Albin reasoned,

"a law that retroactively 'imposes additional punishment to an

already completed crime' disadvantages a defendant, and

therefore is a prohibited ex post facto law." Id. at 12-14

(quoting Riley v. Parole Bd., 219 N.J. 270, 285 (2014)).

4
Because Hester was decided after the parties argued these
appeals, we gave them an opportunity to file supplemental briefs
addressing what if any impact Hester had on the issues raised,
and what would be the effect on New Jersey's compliance with
SORNA if we accorded the relief sought by appellants.

13 A-2388-16T1
"[B]ecause the additional punishment attaches to a condition of

defendants' sentences, the 'completed crime' necessarily relates

back to the predicate offense." Id. at 14 (citations omitted).

The State argues Hester has no application because G.H. and

G.A. concede that applying subsection (g) to their motions for

relief in the Law Division did not violate the Constitutions.

However, the Court has explained that "[a] law is retrospective

if it 'appl[ies] to events occurring before its enactment' or

'if it changes the legal consequences of acts completed before

its effective date.'" Riley, 219 N.J. at 285 (alteration in

original) (emphasis added) (quoting Miller v. Florida, 482 U.S.

423, 430 (1987)). Here, the Legislature's adoption of

subsection (g) "change[d] the legal consequences" of the guilty

pleas G.H. and G.A. entered prior to its enactment. At the time

of their convictions, both faced the prospect of presumptive

lifetime registration, but both retained the possibility of

relief pursuant to subsection (f). The trial courts'

retroactive application of subsection (g) eliminated that

opportunity, thereby changing the legal consequences of G.H.'s

and G.A.'s convictions entered years earlier.

That relief from registration is conditioned upon future

events, i.e., fifteen offense-free years and the ability to

convince a judge the registrant is "not likely to pose a threat

14 A-2388-16T1
to the safety of others[,]" N.J.S.A. 2C:7-2(f), does not change

the retroactivity analysis. For example, in INS v. St. Cyr, 533

U.S. 289, 293 (2001), the Supreme Court considered the effect of

the repeal of § 212(c) of the Immigration and Nationality Act,

which gave the Attorney General discretion to waive deportation

of resident aliens, on a lawful permanent resident who faced

deportation after pleading guilty to selling a controlled

substance.

Under the law applicable at the time of his conviction, St.

Cyr would have been eligible for a § 212(c) waiver. Ibid.

However, prior to removal proceedings being initiated against

him, Congress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), which limited

the class of aliens who could apply for deportation relief. The

Government argued St. Cyr was no longer eligible for a waiver.

Ibid.

The Court held that St. Cyr's eligibility for discretionary

relief was not foreclosed by the repeal of § 212(c). Id. at

326. The Court concluded Congress had not clearly expressed an

intention to make IIRIRA § 304(b), the repealing statute,

retroactive, yet the government sought to apply it retroactively

to St. Cyr. Justice Souter explained "[t]he inquiry into

15 A-2388-16T1
whether a statute operates retroactively demands a commonsense,

functional judgment about whether the new provision attaches new

legal consequences to events completed before its enactment."

Id. at 321 (emphasis added) (citation omitted); see Riley, 219

N.J. at 285.

The Court found that "[t]here is a clear difference, for

the purposes of retroactivity analysis, between facing possible

deportation and facing certain deportation[,]" id. at 325, and

concluded "new legal consequences" were attached to "completed"

events if St. Cyr "would have been eligible for § 212(c) relief

at the time of [his] plea under the law then in effect." Id. at

321, 326. Depriving St. Cyr of the benefits of a plea entered

when § 212(c) discretionary relief was available would "be

contrary to familiar considerations of fair notice, reasonable

reliance, and settled expectations." Id. at 323 (citation

omitted).

In short, contrary to the State's argument, the trial

courts in this case applied subsection (g) retroactively to

affect the legal consequences of G.H.'s and G.A.'s guilty pleas

entered prior to subsection (g)'s enactment.

B.

"It is well-settled that statutes generally should be given

prospective application." In re D.C., 146 N.J. 31, 50 (1996)

16 A-2388-16T1
(citing Gibbons v. Gibbons, 86 N.J. 515, 521 (1981)).

"[R]etroactive application of new laws involves a high risk of

being unfair." Gibbons, 86 N.J. at 522 (citation omitted).

"The preference for prospective application of new legislation

'is based on our long-held notions of fairness and due

process.'" James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563

(2014) (quoting Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J.

33, 45 (2008)). "It is 'presumed that provisions added by [an]

amendment affecting substantive rights are intended to operate

prospectively.'" D.C., 146 N.J. at 50 (quoting Schiavo v. John

F. Kennedy Hosp., 258 N.J. Super. 380, 385 (App. Div. 1992),

aff'd o.b., 131 N.J. 400-01 (1993)).

In deciding whether a statute could apply retroactively, we

consider "whether the Legislature intended to give the statute

retroactive application," and "whether retroactive application

of that statute will result in either an unconstitutional

interference with vested rights or a manifest injustice."

James, 216 N.J. at 563 (quoting D.C., 146 N.J. at 50). The

Legislature's intent may be expressed or implied. Id. at 564.

"Implied retroactivity may be found from the statute's operation

when retroactive application is necessary to fulfill legislative

intent." Ibid. (citations omitted). An "expression of

legislative intent should be given effect absent a compelling

17 A-2388-16T1
reason not to do so." Ibid. (citing Nobrega v. Edison Glen

Assocs., 167 N.J. 520, 537 (2001)).5

Certainly, the Legislature did not explicitly provide that

subsection (g) applied retroactively, i.e., to those convicted

of sex offenses prior to 2002. Instead, the Legislature

provided subsection (g) would be "effect[ive] immediately," L.

2001, c. 392, § 2. "Such language 'bespeak[s] an intent

contrary to, and not supportive of, retroactive application.'"

Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 389 (2016)

(quoting Cruz, 195 N.J. at 48).

The State correctly points out that the Legislature made

subsection (g) applicable to any registrant who "has been

convicted" of certain crimes, not to anyone who "is" or

"hereafter is" convicted of those crimes. The Legislature's use

of the present perfect tense indicates subsection (g) applies to

an action completed, although not at any definite time in the

past. See In re Adoption of N.J.A.C. 71I, 291 N.J. Super. 183,

191 (App. Div. 1996) (noting, "[g]rammatically, 'has been

5
A statute also may be applied retroactively if it is
"curative," that is, designed to address some imperfection in
the existing statute, or if the parties' expectations warrant
retroactive application. James, 216 N.J. at 564-65 (citations
omitted). "The[se] latter two categories of potential
retroactive application are not implicated in this appeal." NL
Industries, Inc. v. State, 228 N.J. 280, 295 (2017). We only
note that the trial judge in G.A. erred to the extent she found
subsection (g) was "curative."

18 A-2388-16T1
located' is the present perfect tense, which expresses an action

completed by the present time, although when it was completed is

not determined"); see also Barrett v. United States, 423 U.S.

212, 216 (1976) (observing that Congress used the present

perfect tense to "denot[e] an act that has been completed").

However, the Court has repeatedly said, "a statute [that]

changes the settled law and relates to substantive rights is

prospective only, unless there is an unequivocal expression of

contrary legislative intent." Dewey v. R.J. Reynolds Tobacco

Co., 121 N.J. 69, 95 (1990) (emphasis added); e.g., Johnson, 226

N.J. at 397 ("Because the 2011 amendment altered settled law, we

would expect to find an unequivocal statement that it was to be

applied retroactively."); accord Bunk v. Port Auth., 144 N.J.

176, 194 (1996); Phillips v. Curiale, 128 N.J. 608, 617 (1992).

From its initial enactment, our courts have viewed "[a]ll

of Megan's Law's provisions" as part of a comprehensive scheme,

"a legitimate regulatory measure" in faithful service to the

Legislature's public safety objectives. J.S., 444 N.J. Super.

at 310-11 (citing Doe, 142 N.J. at 25, 73). Subsection (f) was

part and parcel of the Legislature's reasonable conclusion that

"the risk of reoffense can be fairly measured, and that

knowledge of the presence of offenders provides increased

defense against them." In re A.D., 441 N.J. Super. 403, 419

19 A-2388-16T1
(App. Div. 2015) (quoting Doe, 142 N.J. at 25), aff'd o.b. 227

N.J. 626 (2017). Subsection (g) altered settled law in that

certain registrants, like G.H. and G.A., can no longer terminate

their registration obligations even though they no longer pose a

threat to the safety of others, as actually found by the trial

courts when each judge granted appellants relief from CSL

pursuant to N.J.S.A. 2C:43-6(c).

The State argues we should infer the Legislature intended

retroactive application of subsection (g) because a different

interpretation "would be contrary to the public safety purpose

underlying the amendment and Megan's Law itself." This argument

ignores the fact that the Legislature believed Megan's Law, as

originally enacted in 1994, fully satisfied its public safety

objectives, even though it permitted potential relief from

registration pursuant to subsection (f).

Moreover, the legislative history of subsection (g)

supports no such assertion. The sponsor and committee

statements in both the Assembly and the Senate make clear that

subsection (g) was enacted to meet the requirements of the now

repealed Wetterling Act and to insure continued federal funding.

See Sponsor's Statement to S. 2714 (Nov. 19, 2001); Senate Law

and Pub. Safety Comm., Statement to S. 2714 (Nov. 29, 2001);

20 A-2388-16T1
Sponsor's Statement to A. 3987 (Dec. 6, 2001); Assembly Law and

Pub. Safety Comm., Statement to A. 3987 (Dec. 13, 2001).

Importantly, the Wetterling Act neither "require[d] states

accepting funds to impose . . . registration requirement[s]

retroactively on individuals previously convicted of sex

offenses," nor "'preclude[d] states from imposing any new

registration requirements on offenders convicted prior to the

establishment of the registration system.'" United States v.

Shoulder, 738 F.3d 948, 950 (9th Cir. 2013) (quoting Final

Guidelines for Megan's Law and the Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registration Act,

62 Fed. Reg. 39,009, 39,013 (July 21, 1997)). In other words,

the Legislature's stated purpose for enacting subsection (g) —

securing federal funding by complying with federal law — was

fully served without retroactive application of the new statute.

In short, there is little to suggest the Legislature

intended subsection (g) apply retroactively to those who were

"convicted or released" prior to 2002. As a result, we need not

determine whether retroactive application of subsection (g)

"would result in unconstitutional interference with 'vested

rights' or a 'manifest injustice.'" Johnson, 226 N.J. at 394

(citing Nobrega, 167 N.J. at 537). However, for the sake of

completeness, we consider those issues.

21 A-2388-16T1
 "Retroactive legislation that impairs or destroys a 'vested

right' may violate the due process clauses of the federal . . .

or state . . . constitutions," Twiss v. State, 124 N.J. 461, 469

(1991), but due process does not "prohibit retroactive civil

legislation unless the consequences are particularly harsh and

oppressive." Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J.

473, 499 (1983). A "'vested right' encompasses a fixed interest

entitled to protection from state action." Twiss, 124 N.J. at

470.

The Court explained the "essence of [the manifest

injustice] inquiry" is "whether the affected party relied, to

his or her prejudice, on the law that is now to be changed as a

result of the retroactive application of the statute, and

whether the consequences of this reliance are so deleterious and

irrevocable . . . it would be unfair to apply the statute

retroactively." Gibbons, 86 N.J. at 523-524 (citations

omitted). It is an equitable doctrine that does not flow from

constitutional requirements. Nobrega, 167 N.J. at 545 (citation

omitted). "The manifest injustice analysis requires 'a weighing

of the public interest in the retroactive application of the

statute against the affected party's reliance on previous law,

and the consequences of that reliance.'" Id. at 547 (quoting

Nelson v. Bd. of Educ. of Tp. of Old Bridge, 148 N.J. 358, 371

22 A-2388-16T1
(1997)). "In the modern context, a key element in evaluating

retroactive change is whether the Legislature has denied a

claimant all remedies or has modified available remedies."

Phillips, 128 N.J. at 626.

Appellants had no vested right to relief from their

registration obligations. As originally enacted, Megan's Law

presumed they would be subject to lifetime registration;

subsection (f) provided conditional relief contingent not only

upon G.H.'s and G.A.'s own conduct, but also upon their ability

to persuade a judge they no longer posed a threat to public

safety. More importantly, "[t]here can be no vested right in

the continued existence of a statute . . . which precludes its

change or repeal." Phillips, 128 N.J. at 620 (citations

omitted).

However, at the time of their guilty pleas, appellants

could reasonably rely upon the possibility of relief from

lifetime registration. The retroactive application of

subsection (g) does not modify a remedy but eliminates an

incentive integral to Megan's Law remedial purpose by denying

certain registrants any relief from the obligations inherent in

lifetime registration, along with the attendant opprobrium and

potential criminal liability. Weighing that against the

public's interest in the safety of the community, which was

23 A-2388-16T1
adequately served by subsection (f) prior to the passage of

subsection (g), we conclude retroactive application of

subsection (g) to G.H. and G.A. would be manifestly unjust.

Lastly, we asked the parties to address whether according

appellants relief in these appeals would affect New Jersey's

compliance with SORNA. Under SORNA, sex offenders are

classified as Tier I, Tier II, or Tier III offenders, depending

on the severity of the underlying offense. 34 U.S.C. § 20911(2),

(3) and (4). SORNA also increased the time of registration for

certain classes of sex offenders, requiring: (1) 15 years for

Tier I offenders, less a possible five-year reduction based on

maintaining a "clean record" for 10 years; (2) 25 years for Tier

II offenders; and (3) lifetime for Tier III offenders, absent a

reduction to 25 years only for juvenile offenders based on

maintaining a "clean record" for 25 years. 34 U.S.C. § 20915

(a) and (b).

Congress gave the United States Attorney General the

authority to promulgate regulations and guidelines regarding

SORNA's retroactive application to those convicted of sex

offenses prior to the legislation's enactment. 34 U.S.C. §

20913(d). The Attorney General has since issued guidelines

indicating that SORNA applies to those state registrants whose

convictions pre-date SORNA. National Guidelines for Sex

24 A-2388-16T1
Offender Registration and Notification, 73 Fed. Reg. 38,030

(July 2, 2008). In addition, the "Attorney General may exempt a

state from implementing a provision of SORNA that 'would place

the jurisdiction in violation of its constitution, as determined

by a ruling of the jurisdiction's highest court[,]'" thus, "[i]n

short, a state's highest court can declare unconstitutional a

state's sex-offender registration provision without necessarily

jeopardizing a state's federal funding." C.K., 233 N.J. at 63.6

Appellants argue that New Jersey currently is not compliant

with SORNA, id. at 62, our Legislature has twice declined to

adopt the more onerous registration requirements in SORNA,7 and

if the Legislature were to enact SORNA, registrants would likely

challenge its constitutionality and certainly its retroactive

application.

The State asserts, without citation, that New Jersey

currently loses ten percent of its potential federal funding

6
We note that at least two state courts — Maine and New
Hampshire — have specifically concluded the retroactive
application of a lifetime registration requirement violated
their state constitutions. See Letalien, 985 A.2d at 26
(retroactive lifetime ban without any ability to seek relief as
before violated ex post facto clause); Doe, 111 A.3d at 1093-
1100 (lifetime registration without relief, along with other
amendments, violated ex post facto clause).
7
The Legislature has not acted on two bills introduced in the
Assembly in 2012 and 2014. See S.850/A.764 (2012); S.
1702/A.3832 (2014).

25 A-2388-16T1
because it does not comply with SORNA, and granting appellants

relief in this case would necessarily implicate subsection (g)'s

retroactive application to other registrants, thereby making it

"more difficult for New Jersey to receive full federal funding

under SORNA." The State contends that lifetime registration for

certain offenders, like G.H. and G.A., meets SORNA's Tier III

requirements.

In 2016, the Department of Justice, Office of Justice

Programs, Office of Sex Offender Sentencing, Monitoring,

Apprehending, Registering, and Tracking (SMART), issued its

"SORNA Substantial Implementation Review – State of New Jersey."

U.S. Dep't of Justice, Office of Sex Offender Sentencing,

Monitoring, Apprehending, Registering, and Tracking, SORNA

Substantial Implementation Review State of New Jersey (July

2016), https://smart.gov/pdfs/sorna/newjersey-hny.pdf. That

review noted:

SORNA requires that offenses be classified
based on the nature of the offense of
conviction. The SMART Office has reviewed
all statutes identified in New Jersey's
materials and has identified New Jersey's
placement of these statutes within the SORNA
three tier levels . . . .

New Jersey's current registration and
notification scheme includes two categories
of registrants: 1) offenders determined by a
court to be repetitive and compulsive, who
are deemed lifetime registrants required to
report to local law enforcement every 90-

26 A-2388-16T1
 days to verify registration information; and
2) lifetime registrants who are required to
report to local law enforcement each year to
verify registration information.

[Id. at 3.]

SMART concluded, "Because New Jersey initially requires all sex

offenders to register for life, New Jersey meets the SORNA

requirements of this section." Ibid. (footnote omitted).

However, SMART also reviewed New Jersey's "Reduction of

Registration Periods," i.e., subsection (f), which, as already

noted does not comply with SORNA. SMART wrote:

New Jersey deviates from SORNA in its
allowance of reduced registration periods.
Sex offenders may apply to the court to be
removed from the sex offender registry if
they committed only one offense, have not
committed another offense for 15 years, and
prove that they are not likely to pose a
threat to the safety of others. Juveniles
may also apply to the court to be removed
from the sex offender registry if they were
under the age of 14 at the time of their
offense but are now over the age of 18.

Because New Jersey uses a discretionary
process to determine higher frequency of
registration reporting and allows a broader
class of registrants than SORNA prescribes
to petition for removal, New Jersey does not
meet the SORNA requirements of this section.

[Id. at 7 (emphasis added).]

Thus, contrary to the State's assertion, it appears that

subsection (f), permitting a broad range of registrants relief

27 A-2388-16T1
from registration, is a fundamental reason why New Jersey is not

complying with SORNA.

In any event, whether the retroactive application of

subsection (g) would further delay compliance with SORNA is not

properly before us, having never been raised in the trial

courts. We conclude only that the retroactive application of

section (g) to G.H. and G.A. was not expressly or impliedly

intended by the Legislature, and, even if it were, retroactive

application would be manifestly unfair in these circumstances.

We therefore reverse the orders under review and remand the

matters to the respective trial courts, which shall conduct

hearings on whether appellants currently qualify for the relief

provided by subsection (f).

Reversed and remanded. We do not retain jurisdiction.

28 A-2388-16T1