                     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                NOT FOR PUBLICATION WITHOUT THE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
