Title Artway v. Attorney General of the State of New Jersey
Date 1996
By
Subject Other\Concurring
Contents
Page 1
31 of 52 DOCUMENTS
ALEXANDER A. ARTWAY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE, Attorney General of New Jersey and Superintendent of the New Jersey State Police, Appellants in No. 95-5157; ALEXANDER A. ARTWAY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF NEW JERSEY STATE POLICE, Chief of Police of Woodbridge
Township, New Jersey Appellant in No. 95-5194; ALEXANDER A. ARTWAY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF NEW JERSEY STATE POLICE, Alexander A. Artway, Appellant in No. 95-5195
NOS. 95-5157, 95-5194 and 95-5195
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
83 F.3d 594; 1996 U.S. App. LEXIS 11363
May 13, 1996, Decided
May 13, 1996, Filed
PRIOR HISTORY: **1 (Civ. No. 94-cv--06287).
Original Opinion of April 12, 1996, Reported at: 1996
U.S. App. LEXIS 7573.
DISPOSITION: Petition for rehearing DENIED.
COUNSEL: DEBORAH T. PORITZ, ESQUIRE
(ARGUED), Attorney General Of New Jersey, JOSEPH L. YANNOTTI, ESQUIRE, Assistant Attorney General, RHONDA S. BERLINER-GOLD, ESQUIRE, LARRY ETZWEILER, ESQUIRE, B. STEPHAN FINKEL, ESQUIRE, Deputy Attorneys General, Richard J. Hughes Justice Complex, CN112, Trenton, NJ 08625, Attorneys for Attorney General of New Jersey, Appellant in No. 95-
5157.
NEAL H. FLASTER, ESQUIRE (ARGUED), RICHARD L. RUDIN, ESQUIRE, WEINER LESNIAK, ESQUIRE, JEREMY G. WEISS, ESQUIRE, 299 Cherry Hill Road, Parsippany, NJ 07054, Attorneys for the Chief of Police of Woodbridge, Township, New Jersey, Appellant in No. 95-5194.
FAITH HOCHBERG, ESQUIRE (ARGUED), United States Attorney, STUART RABNER, ESQUIRE, GEORGE S. LEONE, ESQUIRE, Assistant United States Attorneys, 970 Broad Street, Room 502, Newark, NJ 07102. FRANK W. HUNGER, ESQUIRE, Assistant Attorney General, LEONARD SCHAITMAN,
ESQUIRE, WENDY M. KEATS, ESQUIRE, Attorneys, Appellate Staff, United States Department of Justice, Civil Division, Room 3127, 10th & Pennsylvania Avenue, N.W., Washington, DC 20530-0001, Attorneys for United States of America, Amicus-Appellant in No. 95-5157.
GEOFFREY S. BERMAN, ESQUIRE, Mudge, Rose, Guthrie, Alexander & Ferdon, 180 Maiden Lane, New York, New York 10038, Attorney for Maureen Kanka, Richard Kanka, Dick Zimmer, Randall Cunningham, Nathan Deal, Jennifer Dunn, Tillie Fowler, Thomas Manton, Susan Molinari, Jim Saxton, Christopher Smith, Amicus-Appellants in No. 95-5157.
JOHN J. GIBBONS, ESQUIRE (ARGUED), LAWRENCE S. LUSTBERG, ESQUIRE, JONATHAN ROMBERG, ESQUIRE, CHRISTOPHER WALSH, ESQUIRE, Crummy, Del Deo, Dolan, Griffinger & Vecchione, A Professional Corporation, One Riverfront Plaza, Newark, NJ 07102-5497, Attorneys for Alexander A. Artway, Appellant in No. 95-5195.
RONALD K. CHEN, ESQUIRE (ARGUED), Rutgers Constitutional Litigation Clinic, Rutgers University School of Law, 15 Washington Street, Newark, NJ 07102, Attorney for American Civil Liberties Union, of New Jersey, Amicus-Appellant in No. 95-5195.
GLENN R. PAULSEN, ESQUIRE, Capehart & Scatchard, P.A., A Professional Corporation, 142 West
83 F.3d 594, *; 1996 U.S. App. LEXIS 11363, **1
Page 2
State Street, Trenton, NJ 08608, Attorney for the New
Jersey Senate, Amicus-Appellant in No. 95-5157. DENNIS C. VACCO, ESQUIRE, Attorney General of the State of New York, VICTORIA A. GRAFFEO, ESQUIRE, Solicitor General, PETER H. SCHIFF, ESQUIRE, Deputy Solicitor General, ANDREA OSER, ESQUIRE, Assistant Attorney General, New York State Department of Law, The Capitol, Albany, NY 12224, Attorneys for the State of New York, Amicus-Appellant in No. 95-5157.
JUDGES: Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and SAROKIN, Circuit Judges, and SHADUR, District Judge. n1
n1 As to panel rehearing only. OPINIONBY: Edward R. Becker OPINION:
*595 SUR PETITION FOR PANEL REHEARING WITH
SUGGESTION FOR REHEARING IN BANC
The petitions for rehearing filed by Alexander Artway in No. 95-5195 and by the Attorney General of New Jersey and the Superintendent of the New Jersey State Police in Nos. 95-5157, 95-5194 and 95-5195 having been submitted to the judges who participated In the de- cision of this Court and to all the other available circuit judges in active service, and no judge who concurred in the decision having asked for rehearing, and a majority
of the circuit judges of the circuit in regular active ser- vice not having voted for rehearing by the court in banc, the petition for rehearing is DENIED. Judges Greenberg, Nygaard, Alito, and Sarokin would grant rehearing. Judge Alito's dissenting opinion sur denial of rehearing **2 is attached.
By The Court:
/s/ Edward R. Becker Edward R. Becker Circuit Judge
DATED: May 13, 1996
CONCURBY: ALITO
CONCUR:
OPINION SUR DENIAL OF REHEARING
ALITO, Circuit Judge:
This case should be reheard by the full court. Rehearing In banc is appropriate when a case "involves a question of exceptional importance," Fed. R. App. Pr.
35(a), and the constitutionality of the community notifi- cation provisions of Megan's Law indisputably meets this standard. This question is obviously important for those, such as Alexander Artway, who may be subject to these requirements. It is also of enormous importance to chil- dren like Megan Kanka, after whom the law was named, and to their parents.
Seven-year--old Megan Kanka disappeared near her home on a summer day in 1994. She was last seen talking to a next-door neighbor, Jesse Timmendequas. The next
83 F.3d 594, *596; 1996 U.S. App. LEXIS 11363, **2
Page 3
*596 day Timmendequas was arrested and confessed that he had lured Megan into his home by promising to show her a puppy. According to his confession, he then raped and killed her. Only after Timmendequas's arrest did Megan's parents learn that he was a multiple sex of- fender, that he had assaulted and nearly killed another young girl **3 in 1982, and that the other two men with whom he was sharing the house were also convicted sex offenders whom he had met while incarcerated.
These events and other similar offenses prompted the New Jersey Legislature to enact the community notifica- tion provisions that are at issue in this appeal. Similar laws have been enacted by other states, and related legislation has been passed at the federal level. The constitutionality of the New Jersey provisions has been upheld by the New Jersey Supreme Court. Doe v. Poritz 142 N.J. 1, 662 A.2d
367 (1995). However, the panel's decision in this case may well result in the invalidation of these provisions. Following the panel's decision, the United States District Court for the District of New Jersey enjoined state offi- cials from complying with them. The denial of rehearing in this case means of course that, absent some intervening action by the Supreme Court, the panel's decision will control subsequent proceedings in the district court and before panels of our court until another occasion for in banc review arises. In the meantime, a law that was en- acted by the New Jersey Legislature to deal with what it viewed as a grave and imminent **4 threat will remain in constitutional limbo and may go unenforced. I find this prospect unacceptable.
Whether the community notification provisions of Megan's Law comport with the Ex Post Facto Clause is not an easy question. The panel opinion's discussion of this question is thoughtful and scholarly, and its effort to develop a grand unified theory of "punishment" un- der the Double Jeopardy, Excessive Fines, and Ex Post Facto Clauses is ambitious. I have serious doubts, how- ever, concerning critical portions of the panel's analysis. I am particularly troubled by the panel's conclusion that a measure may constitute "punishment" if its "effects" or
"negative repercussions - regardless of how they are jus- tified - are great enough." Op. at 53, 59. I am doubtful that it is possible to determine that a measure constitutes punishment based solely on its effects. Moreover, I am convinced that the panel has misinterpreted California Department of Corrections v. Morales, 131 L. Ed. 2d 588,
115 S. Ct. 1597 (1995), the precedent on which the panel's effects test is based.
Is it possible to conclude that a measure constitutes
"punishment" based solely on its effects or "sting"? It is certainly **5 not possible to conclude that a govern- mental action is non-punitive based on its mild effects.
(Even a mild criminal sentence - for example, ordering a defendant to pick up litter in the park on a beautiful spring day - is unquestionably punishment.) Is it never- theless possible to determine that a measure constitutes
"punishment" based on its harsh effects? I am skeptical. It Is settled that certain governmental actions having severe effects are not "punishment." For instance, pretrial deten- tion, though sometimes quite harsh, is "regulatory, not penal." United States v. Salerno, 481 U.S. 739, 95 L. Ed.
2d 697, 107 S. Ct. 2095 (1987). So is the revocation of a professional or occupational license, Hawker v. New York,
170 U.S. 189, 42 L. Ed. 1002, 18 S. Ct. 573), or the ter- mination of Social Security benefits. Flemming v. Nestor,
363 U.S. 603, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960), even though the effects of these actions can be devastating. It is also settled that deportation, "however severe its con- sequences," does not implicate the Ex Post Facto Clause. Harisiades v. Shaughnessy, 342 U.S. 580, 594, 96 L. Ed.
586, 72 S. Ct. 512 (1952) (emphasis added). **6 See also, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038,
82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984); Mahler v. Eby,
264 U.S. 32, 39, 68 L. Ed. 549, 44 S. Ct. 283 (1924) ("It Is well settled that deportation, while it may be burdensome and severe for the alien, is not punishment."). In view of these precedents, I have grave doubts whether the panel is correct that a measure may be held to constitute "pun- ishment" under the Ex Post Facto Clause simply because its "negative repercussions--regardless of how they are justified--are
83 F.3d 594, *597; 1996 U.S. App. LEXIS 11363, **6
Page 4
*597 great enough." Artway, supra, slip op. at 59. Moreover, I am convinced that the panel's effects test, whatever else may be said in its favor, is not supported by the Supreme Court's decision in Morales. I see no ev- idence whatsoever that Morales was meant to adopt the far-reaching proposition that a measure may be held to constitute "punishment" for ex post facto purposes based solely on its effects. Certainly the Court's opinion does not expressly embrace any such broad proposition, and I think the best reading of the opinion is a much narrower
one.
Morales concerned a 1981 California statutory amendment regarding eligibility for parole **7 hear- ings. Morales had twice been convicted of murder, first in
1971 for killing his girlfriend and then in 1980 for killing and dismembering an elderly woman who had befriended him while he was in prison and who had married him after he was paroled. 115 S. Ct. at 1599-1600. Under the law in effect at the time of his 1980 conviction, he would have been entitled to a parole hearing every year beginning in 1989. Id. at 1600. The 1981 amendment, however, permitted the Board of Prison Terms to defer hearings for up to three years under certain limited cir- cumstances, viz., if a prisoner had been convicted of more than one offense involving the taking of a life and if the Board found that it was not reasonable to expect that pa- role would be granted during the intervening years. Id. In denying Morales parole in 1989, the Board found that he satisfied these criteria and thus deferred his next hearing for three years. Id.
Morales argued that the application to him of the 1981 amendment violated the Ex Post Facto Clause, and he "re- lied chiefly on a trilogy of cases holding that a legislature may not stiffen the 'standard of punishment' applicable to crimes that have already been **8 committed. See Lindsey v. Washington, 301 U.S. 397, 81 L. Ed. 1182, 57
S. Ct. 797 . . . (1937); Miller v. Florida, 482 U.S. 423,
96 L. Ed. 2d 351, 107 S. Ct. 2446 . . . (1987); Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960
. . . (1981)." Morales, 115 S. Ct. at 1601. The Supreme Court, however, distinguished these cases on the ground that they involved laws that "had the purpose and effect of enhancing the range of available prison terms," whereas
the amendment at issue in Morales "simply 'alter ed the method to be followed in fixing a parole release date un- der identical substantive standards.'" Id. at 1602 (citations omitted). n2
N2 The Court expressly disavowed Lindsey, Weaver, and Miller to the extent those decisions
"suggested that enhancements to the measure of criminal punishment fail within the ex post facto prohibition because they operate to the 'disadvan- tage' of covered offenders." Id. at 1602 n.3 (citations omitted). And the opinion stressed that the focus of the ex post facto inquiry is not on whether a leg- islative change produces some ambiguous sort of
'disadvantage,' . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. Id.
**9
The Court then rejected Morales' argument that "the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner's pun- ishment." 115 S. Ct. at 1602. The Court noted that this argument would require invalidation of "any of a number of minor (and perhaps inevitable) mechanical changes that might produce some remote risk of impact on a pris- oner's expected term of confinement," "including such innocuous adjustments as changes to the membership of the Board of Prison Terms, restrictions on the hours that prisoners may use the prison law library, reductions to the duration of the parole hearing, restrictions on the time allotted for a convicted defendant's right of allocation be- fore a sentencing judge, and page limitations on a defen- dant's objections to presentence reports or on documents seeking a pardon from the governor." Id. at 1603. It was in this context that the Court wrote that "the question of what legislative adjustments 'will be held to be of suffi- cient moment to transgress the constitutional prohibition' must be a matter of 'degree.'" Id. (emphasis in original)
(quoting Beazell v. Ohio, 269 U.S. 167, 171, 70 L. Ed.
216, **10 46 S. Ct. 68 (1925)). The Court then con- cluded that the 1981 California amendment created "only the most speculative and attenuated
83 F.3d 594, *598; 1996 U.S. App. LEXIS 11363, **10
Page 5
*598 possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes" and that "such conjectural effects" were "insufficient" to establish an ex post facto violation. Id.
I do not Interpret Morales as standing for the sweep- ing proposition that any measure may be held to constitute
"punishment" under the Ex Post Facto Clause based solely on its effects. Rather, I think that Morales is a narrow de- cision that means only that when a measure does not retrospectively "change the sentencing range" applicable to a particular offense (115 S. Ct. at 1602) but does make procedural or other changes that may indirectly affect the length of time that a prisoner may serve, no violation of the Ex Post Clause will be found if the possibility of such an indirect effect is "speculative and conjectural."
115 S. Ct. at 1603. Morales does stand for the proposition that the "effects" of a challenged measure are significant within this narrow context, but I do not think that it is correct to read Morales as adopting **11 a universally applicable effects test. It is telling, I think, that Morales was not even cited in the excellent briefs filed on behalf of Artway and his supporting amicus, the American Civil Liberties Union of New Jersey.
The panel's effects test is especially troubling because
it encompasses not only the direct effects of the commu- nity notification provisions but also what may be called their secondary effects, that is, the effects on released sex offenders of actions taken by private citizens who are in turn affected by community notification. I doubt whether any reasonably accurate assessment of the likely secondary effects of community notification will be pos- sible unless implementation of these provisions is per- mitted in New Jersey or elsewhere in a sufficiently large sample of cases over a sufficiently extended period of time. As the panel itself seems to recognize, however, the constitutionality of these provisions is likely to be settled by the first batch of pre-enforcement challenges. See Op. at 22 n.9. At that point, it is doubtful that there will be an adequate empirical basis for determining what the probable long term effects of community notification will be. What **12 we are likely to see, I fear, are district court "findings" based on bits of evidence that re- ally prove little about the likely effects over the long term of a program of community notification. This is a most unedifying prospect.
For these reasons, I disagree with the court's refusal to rehear this case in banc. Judge Greenberg and Judge Nygaard join in this opinion.
Contents
Prev
Next
Last
