                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-1996

Artway v. Atty Gen NJ
Precedential or Non-Precedential:

Docket 95-5157,95-5194,95-5195




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Recommended Citation
"Artway v. Atty Gen NJ" (1996). 1996 Decisions. Paper 165.
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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                  ____________________

           NOS. 95-5157, 95-5194 and 95-5195
                 _____________________

                   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

                 (Civ. No. 94-cv-06287)
        ________________________________________

   Present: SLOVITER, Chief Judge, BECKER, STAPLETON,
      MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
 ALITO, ROTH, LEWIS, McKEE, and SAROKIN, Circuit Judges,




                           1
                  and SHADUR, District Judge .1

             ______________________________________

                 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 decision 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

service 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 is attached.

                                       BY THE COURT:




                                       /s/ Edward R. Becker
                                              Circuit Judge
DATED: May 13, l996




                  1
                      As to panel rehearing only.


                                  2
                OPINION SUR DENIAL OF REHEARING

Artway v. Attorney General of the State of New Jersey
Nos. 95-5157, 95-5194 and 95-5195

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 notification 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 children 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 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 offender,

that he had assaulted and nearly killed another young girl 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 notification




                                  3
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 officials 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 enacted

by the New Jersey Legislature to deal with what it viewed as a

grave and imminent 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" under the Double Jeopardy,

Excessive Fines, and Ex Post Facto Clauses is ambitious.      I have

serious doubts, however, 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


                                 2
are justified -- 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, 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 not possible to conclude that a governmental 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 nevertheless 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 detention, though sometimes quite harsh, is "regulatory,

not penal."     United States v. Salerno, 481 U.S. 739 (1987).   So

is the revocation of a professional or occupational license,

Hawker v. New York, 170 U.S. 189 1898), or the termination of

Social Security benefits.    Fleming v. Nestor, 363 U.S. 603

(1960), even though the effects of these actions can be

devastating.    It is also settled that deportation, "however

severe its consequences," does not implicate the Ex Post Facto

Clause.   Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952)

(emphasis added).    See also, e.g., INS v. Lopez-Mendoza, 468 U.S.

1032, 1038 (1984); Mahler v. Eby, 264 U.S. 32, 39 (1924) ("It is


                                  3
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 "punishment" under the Ex

Post Facto Clause simply because its "negative repercussions       --

regardless of how they are justified -- are 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 evidence

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 hearings.     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 circumstances, viz.,


                                 4
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 parole 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 "relie[d]

chiefly on a trilogy of cases holding that a legislature may not

stiffen the `standard of punishment' applicable to crimes that

have already been committed.    See Lindsey v. Washington, 301 U.S.

423 . . . (1937); Miller v. Florida, 482 U.S. 423 . . . (1987);

Weaver v. Graham, 450 U.S. 24 . . . (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 under identical

substantive standards.'"    Id. at 1602 (citations omitted).2

           The Court then rejected Morales' argument that "the Ex

Post Facto Clause forbids any legislative change that has any

2
 The Court expressly disavowed Lindsey, Weaver, and Miller to the
extent those decisions "suggested that enhancements to the
measure of criminal punishment fall within the ex post facto
prohibition because they operate to the `disadvantage' 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 legislative 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.

                                  5
conceivable risk of affecting a prisoner's punishment."    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 prisoner'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 allocution before a

sentencing judge, and page limitations on a defendant'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 sufficient 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 (1925)).    The Court then concluded that the

1981 California amendment created "only the most speculative and

attenuated 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 sweeping

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 decision that


                                 6
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 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

community 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 possible unless implementation of

these provisions is permitted 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


                                7
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 we are

likely to see, I fear, are district court "findings" based on

bits of evidence that really 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.




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