IN THE MATTER OF REGISTRANT, B.B. IN THE MATTER OF REGISTRANT, A v. (ML-99-07-0009 AND ML-99-07-0140, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0060-18T1
A-0572-18T1
IN THE MATTER OF
REGISTRANT B.B.
APPROVED FOR PUBLICATION
_____________________
October 31, 2019
IN THE MATTER OF APPELLATE DIVISION
REGISTRANT A.V.
_____________________
Argued October 3, 2019 – Decided October 31, 2019
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket Nos. ML-99-07-
0009 and ML-99-07-0140.
James H. Maynard argued the cause for appellant B.B.
in A-0060-18 and appellant A.V. in A-0572-18
(Maynard Law Office, LLC, attorneys; James H.
Maynard, on the briefs).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent State of New Jersey (Theodore N.
Stephens II, Acting Essex County Prosecutor,
attorney; Frank J. Ducoat, of counsel and on the brief).
The opinion of the court was delivered by
WHIPPLE, J.A.D.
We hold improper a superfluous misleading paragraph added to orders
relieving sex offenders from N.J.S.A. 2C:43-6.4, their Community Supervision
for Life (CSL) obligations. Community Supervision Megan's Law registrants
B.B. and A.V. both sought and received relief from CSL obligations. The
court entered an order dated August 6, 2018, releasing B.B. from CSL, which
contained the following language:
[Ordered] that this [c]ourt renders no decision as to
any obligations that the Registrant may have in any
other State or jurisdiction as a result of the
Registrant's status as a convicted Sex Offender, and
that, if applicable, same shall remain within the
jurisdiction and purview of the laws of that State and
shall remain in full force and effect unless and until
relief is granted by that State or jurisdiction[.]
On September 11, 2018, the court entered an order releasing A.V. from
his obligations under N.J.S.A. 2C:7-1 to -23, Megan's Law, as well as CSL.
[Ordered] that any obligations that the Registrant may
have in any other State or jurisdiction as a result of the
Registrant's status as a convicted Sex Offender shall
remain within the jurisdiction and purview of the laws
of that State and shall remain in full force and effect
unless and until relief is granted by that State or
jurisdiction[.]
In these consolidated appeals, both B.B. and A.V. appeal from the
inclusion of such language. We agree that the paragraphs are unnecessary and
improper and reverse.
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In 1996, B.B. pled guilty to two counts of second-degree sexual assault,
N.J.S.A. 2C:14-2(c), and third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). See In re Registrant B.B., No. A-5376-16 (App. Div.
July 25, 2018) (slip op. at 1). B.B. was sentenced to concurrent five-year
terms on the sexual assault counts, and a concurrent four-year term for the
endangering count, to be served at the Adult Diagnostic and Treatment Center.
Id., slip op. at 2. B.B. was required to register under Megan's Law, N.J.S.A.
2C:7-2(g), and was subject to CSL upon his release from incarceration
pursuant to N.J.S.A. 2C:43-6.4(b). On May 9, 2017, B.B. petitioned under
N.J.S.A. 2C:43-6.4(c) to terminate his CSL obligations. The motion judge
denied the motion, finding that he was "not firmly convinced that B.B. is not
likely to pose a threat to the safety of others if released from CSL." Id., slip
op. at 5. B.B. appealed the denial, and we reversed and remanded the matter
for entry of an order terminating B.B. from CSL. Id., slip op. at 12.
B.B.'s counsel submitted a proposed form of order to the trial court,
which was also served on the State. Although it is not clear from the appellate
record, counsel asserts the State submitted a separate proposed form of order
to the court, but did not copy him. B.B.'s counsel received a copy of the
State's proposed order from the court and wrote a letter to the court objecting
to the inclusion of the subject paragraph. The motion judge entered the order
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granting B.B.'s petition to be released from CSL, but included the subject
paragraph. B.B. appealed.
In 1998, A.V. was convicted of third-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a). As part of his sentence he was subject to CSL
and Megan's Law registration.
In 2018, A.V. petitioned the trial court for the termination of his
obligations under Megan's Law, and his CSL obligations. The motion judge
granted A.V.'s motion because A.V. remained offense-free for a period of
fifteen years and presented a low risk for re-offense. A.V.'s counsel alerted the
court that he submitted a form of order, which inadvertently included the
subject paragraph, and argued it should be removed because the language was
"extraterritorial" and therefore ultra vires.
The motion judge disagreed and ordered A.V.'s termination from both
Megan's Law and CSL, but included the subject language in the order. A.V.
appealed. We consolidated both appeals.
B.B. and A.V. raise the following issues on appeal:
POINT 1: THE TRIAL COURT LACKED
AUTHORITY TO ORDER APPELLANTS'
COMPLIANCE WITH UNSPECIFIED
OBLIGATIONS, IN UNSPECIFIED
JURISDICTIONS; AND, IN THE ABSENCE OF
EITHER TERRITORIAL OR [IN PERSONAM]
JURISDICTION, SUCH ORDERS ARE [ULTRA
VIRES] AND MUST BE STRICKEN.
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A. THE TRIAL COURT'S ORDERS
REFERENCING "OBLIGATIONS THAT
THE REGISTRANT MAY HAVE IN
ANY OTHER STATE OR
JURISDICTION AS A RESULT OF THE
REGISTRANT'S STATUS AS A
CONVICTED SEX OFFENDER" FAIL
TO GIVE NOTICE OF PROSCRIBED
CONDUCT AND ARE ARBITRARY.
POINT 2: [THE] COURT'S ORDER IS
EXTRATERRITORIAL AND [ULTRA VIRES].
POINT 3: THE TRIAL COURT'S ORDERS RISK
CONFUSING COURTS AND OFFICERS IN OTHER
JURISDICTIONS, AND RISK CREATING
UNAUTHORIZED INFRINGEMENTS ON THE
PROTECTED RIGHTS OF B.B. AND A.V.
POINT 4: THE COURT LACKS ANY [IN
PERSONAM] JURISDICTION OVER A.V.
POINT 5: THE TRIAL COURT'S ORDER IS
INCONSISTENT WITH THE FORM OF MEGAN'S
LAW AND CSL REMOVAL ORDERS
GENERATED IN OTHER NEW JERSEY
JURISDICTIONS, RISKS CREATING CONFUSION
AND INCONSISTENCY WITHIN THE NEW
JERSEY COURTS AND PROSECUTOR'S OFFICES,
AND, BY CREATING DISPARITY IN
TERMINATION ORDERS BASED ON
GEOGRAPHY, VIOLATES THE EQUAL
PROTECTION PROVISIONS OF THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS. 1
1
They also improperly raise a new argument in their reply brief, regarding
court orders of an advisory nature are not authorized by the court rules, which
we ignore. Borough of Berlin v. Remington Vernich & Eng'rs, 337 N.J. Super.
590, 596 (App. Div. 2001).
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B.B. and A.V. argue that both of their respective orders seek to compel
compliance with "unknown and unspecified legal obligations in other
jurisdictions that may or may not exist." Therefore, they contend the order is
extraterritorial and ultra vires. They also contend that the orders lack adequate
notice of what conduct is proscribed, or prescribed, by law and thus, is
unconstitutionally vague and arbitrary.
B.B. and A.V. further assert that the trial court, through the respective
orders, is attempting to maintain personal jurisdiction over them regarding the
possible application of the unspecified laws of foreign jurisdictions and thus,
fails to comply with the United States Constitution's Fourteenth Amendment
due process requirement. Additionally, B.B. and A.V. assert that the orders
create a risk of confusing courts and officers which results in disparate
treatment based on where each registrant lives within the state. A.V. also
argues that the order refers to him as a sex offender which is incorrect as a
matter of fact and law in the state of New Jersey and thus should be stricken
from the order.
A.V. and B.B. both sought and were granted relief from their registration
obligations. The subject paragraphs do not compel conduct or impose
additional restrictions upon B.B. and A.V. Indeed, they concede "[a]ny fair
reading of the plain language of the order must conclude that it is an order that
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orders nothing." Although we do not agree the respective orders maintain
personal jurisdiction over A.V. and B.B. in applying the unspecified laws of
foreign jurisdictions, potentially violating their Fourteenth Amendment due
process rights, we agree the paragraphs are ambiguous, unnecessary, and
capable of creating confusion. Moreover, we are not persuaded by the reasons
proffered by the state to support inclusion of such language.
The State argues A.V. and B.B. are not aggrieved by orders that do not
compel or obligate them to engage in conduct and therefore, their appeals
should be dismissed for a lack of standing. The State also contends the court
made no error by including such language, as the purpose of including the
language was to inform A.V. and B.B. of obligations they could be subject to
in other jurisdictions and for "public safety." We reject the State's assertions.
Clearly A.V. and B.B. have standing to challenge orders to which they
are subject. Although the language used by the court may not contain errors, 2
we do not consider the inclusion of the subject paragraphs as meaningless or
inconsequential.
2
It is clear from the record that the motion judge's intent was to notify A.V. as
well as other jurisdictions that the order's effects were limited to New Jersey.
In A.V.'s hearing the motion judge stated "I think without the limiting
language of that paragraph then you're left with an order from this [c]ourt
which seems like it's terminating his obligations no matter where it may be."
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In other contexts our Supreme Court stated the courts are forbidden from
"declar[ing the] rights or status of parties upon a state of facts which are
future, contingent and uncertain." Matter of N.J. Firemen's Ass'n Obligation to
Provide Relief Applications Under Open Pub. Records Act, 230 N.J. 258, 275
(2017) (alteration in original) (quoting Lucky Calendar Co. v. Cohen, 20 N.J.
451, 454 (1956)). Predicting B.B.'s and A.V.'s obligations under the laws of
other jurisdictions could not be more future, contingent, or uncertain.
Sex offender registration and notification laws are widely used. The
statutes, regulations, and laws addressing sex offender registration and
notification in all fifty states, the District of Columbia, the five principal
United States territories, and over 125 federally recognized Indian Tribes 3 are
varied and complex. 4 Each local system makes its own determinations about
3
Failure to register in other jurisdictions, as required under the Sex Offender
Registration and Notification Act (SORNA), potentially subjects both A.V.
and B.B. to additional consequences. See 18 U.S.C. § 2250(a). SORNA
established, among other things, a federal criminal offense covering any
individual who 1) "is required to register under [SORNA]," 2) "travels in
interstate or foreign commerce," and 3) "knowingly fails to register or update a
registration as required by [SORNA]." Ibid. Failure to comply with this
provision may subject B.B. and A.V. to fines, imprisonment of not more than
ten years, or both. Ibid.
4
See U.S. Dep't. of Justice, Sex Offender Registration and Notification in the
United States: Current Case Law and Issues 1 (March 2018),
http://www.smart.gov/caselaw/Case-Law-Update-2018-Compiled.pdf.
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who is required to register, which crimes are registerable offenses, what
information offenders must provide, and what consequences are inherent in the
scheme.5
The obstacles a previously-convicted sex offender faces when relocating
from one state to another, or simply travelling interstate, are not uniform.
Many jurisdictions require registration if a person is convicted of an out -of-
state offense that is comparable, similar, or substantially similar to one or more
of the receiving jurisdiction's registerable offenses. The subject language
under consideration here offers nothing that adequately advises A.V. or B.B.,
or any potential receiving jurisdiction, of these potential broad consequences.
Compare Lozada v. S.C. Law Enf't Div., 719 S.E.2d 258, 259-61 (S.C. 2011)
(finding a Pennsylvania conviction for unlawful restraint to be a registerable
offense in South Carolina, as it is similar to a registerable offense in South
Carolina's registry), and Skaggs v. Neb. State Patrol, 804 N.W.2d 611, 616
(Neb. 2011) (California conviction of sex offense required registration in
Nebraska), with State v. Werneth, 197 P.3d 1195, 1198 (Wash. Ct. App. 2008)
(finding a previously convicted sex offender's Georgia conviction for child
molestation was not a registerable offense as it was not comparable to a
Washington sex offense).
5
Ibid.
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Moreover, A.V.'s order specifically states he remained offense-free for
more than fifteen years following his convictions, was not likely to pose a risk
to the safety of others, and did not present a risk of harm to the community.
These findings were uncontested by the State as to A.V. As to B.B., we
reversed and remanded for an order terminating B.B. from CSL because the
record supported a finding he met the statutory requirements for such relief,
that is, he was not likely to commit another sexual offense and did not present
a risk of harm to others in the community. The inclusion of the subject
paragraphs suggesting both might have obligations elsewhere could be
perceived as a veiled reservation as to these findings. We have carefully
reviewed the record regarding all remaining arguments and determined they
are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Reversed and remanded for the entry of orders without the unnecessary
paragraphs consistent with this opinion. We do not retain jurisdiction.
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