                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2003

A. A. v. State of NJ
Precedential or Non-Precedential: Precedential

Docket No. 01-4363P




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                              PRECEDENTIAL

                                      Filed August 18, 2003

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 01-4363


A. A.; A. B.; A. C., (a minor by M. M. his natural parent);
      A. D.; A. E.; A. F.; A. G., (all fictitious initials),
individually and as representatives of a class, pursuant to
               Fed. R. Civ. 23(a) and 23(b)(2)
                              v.
 THE STATE OF NEW JERSEY; *JAMES McGREEVEY, in
     his official capacity as Governor of the State of
  New Jersey; ATTORNEY GENERAL OF THE STATE OF
    NEW JERSEY, *PETER C. HARVEY, in his official
capacity; *JOSEPH R. FUENTES, in his official capacity as
        Superintendent of New Jersey State Police
       A. A., A. B., A. C., A. D., A. E., A. F., A. G.,
                                 Appellants
        *(Substituted pursuant to F.R.A.P. 43(c)).


                        No. 01-4471


A. A.; A. B.; A. C., (a minor by M. M. his natural parent);
      A. D.; A. E.; A. F.; A. G., (all fictitious initials),
individually and as representatives of a class, pursuant to
               Fed. R. Civ. 23(a) and 23(b)(2)
                              v.
                                   2



 THE STATE OF NEW JERSEY; *JAMES McGREEVEY, in
     his official capacity as Governor of the State of
  New Jersey; ATTORNEY GENERAL OF THE STATE OF
    NEW JERSEY, *PETER C. HARVEY, in his official
capacity; *JOSEPH R. FUENTES, in his official capacity as
        Superintendent of New Jersey State Police
The State of New Jersey, *James E. McGreevey, *Peter C.
             Harvey and *Joseph R. Fuentes,
                              Appellants
           *(Substituted pursuant to F.R.A.P. 43(c)).

      On Appeal from the United States District Court
              for the District of New Jersey
                  (D.C. No. 01-cv-04804)
          District Judge: Hon. Joseph E. Irenas

                      Argued June 25, 2003
        Before: SLOVITER, RENDELL, Circuit Judges,
                and McCLURE,* District Judge

                     (Filed: August 18, 2003)

                          Peter A. Garcia
                           Acting Public Defender New Jersey
                          Michael Z. Buncher
                          Brian Neff
                          Office of Public Defender
                          Trenton, N.J. 08625
                          Edward L. Barocas (Argued)
                          American Civil Liberties Union of
                           New Jersey Foundation
                          Newark, N.J. 07101




* Hon. James F. McClure, Jr., United States Senior District Judge for the
Middle District of Pennsylvania, sitting by designation.
                             3


                      Lawrence S. Lustberg
                      Jessica A. Roth
                      Gibbons, Del Deo, Dolan, Griffinger
                       & Vecchione
                      New York, N.Y. 10119
                        Attorneys for Appellants in No. 01-
                        4363 and Appellees in No. 01-
                        4471
                      Peter C. Harvey
                       Attorney General of New Jersey
                       (acting)
                      David Samson
                       Attorney General of New Jersey
                      Nancy Kaplen
                       Assistant Attorney General of
                       Counsel
                      B. Stephan Finkel (Argued)
                       Assistant Attorney General
                      Rhonda S. Berliner-Gold
                       Deputy Attorney General
                      Victoria L. Kuhn
                       Deputy Attorney General on the
                       Brief
                      Office of Attorney General of
                       New Jersey
                      Department of Law & Public Safety
                      Trenton, N.J. 08625
                        Attorneys for Appellants in No. 01-
                        4471 and Appellees in No. 01-
                        4363

                OPINION OF THE COURT

SLOVITER, Circuit Judge.

                             I.

                     INTRODUCTION
  This appeal presents us with the latest in a long string of
challenges to New Jersey’s Megan’s Law. This time, we
                             4


consider privacy claims as to the newest addition to the
existing statutory regime — the creation of a public internet
registry posting personal information about convicted sex
offenders.
   In 1994, seven year old Megan Kanka was abducted,
raped, and murdered near her New Jersey home by a
neighbor who had previously been convicted of sex offenses
against young girls. Thereafter, Congress passed the Jacob
Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act, title 17, § 170101, 108 Stat.
2038, as amended, 42 U.S.C. §14071, which conditions
certain federal funds for law enforcement on the States’
adoption of a Megan’s Law, so named after Megan Kanka.
By 1996, every State, the District of Columbia, and the
Federal Government had passed a Megan’s Law. While
these laws vary from State to State, they generally require
convicted sex offenders to register with law enforcement
officials, who then notify community members of the
registrants’ whereabouts. New Jersey’s Megan’s Law has
faced legal challenges every step of the way.
  In Artway v. Attorney General of State of N.J., 81 F.3d
1235 (3d Cir. 1996), we upheld the registration provisions
of New Jersey’s Megan’s Law in the face of ex post facto,
double jeopardy, bill of attainder, due process, equal
protection, and vagueness challenges. A year later in E.B. v.
Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, sub
nom. W.P. v. Verniero, 522 U.S. 1109 (1998), we rejected
claims that the law’s notification requirements violated the
Ex Post Facto and Double Jeopardy Clauses of the
Constitution. Thereafter, we rejected claims that the
notification requirement violated registrants’ privacy rights
in Paul P. v. Verniero (“Paul P. I.”), 170 F.3d 396 (3d Cir.
1999), and Paul P. v. Farmer (“Paul P. II.”), 227 F.3d 98 (3d
Cir. 2000).
  The story does not end there. In 1995, Doe v. Poritz, 662
A.2d 367 N.J. Sup. Ct. (1995), the New Jersey Supreme
Court upheld the constitutionality of the original Megan’s
Law, conditioned on the implementation of certain
safeguards. Specifically, the Court construed the
notification provisions to require a “likely to encounter”
standard based on geography and further required the
                              5


State to provide offenders with notice of their proposed
scope of notification and an opportunity for judicial review
before the notification was undertaken. Id. at 29-30. In
light of the Doe Court’s qualifications, New Jersey’s
electorate approved by public referendum in November
2000 an amendment to the New Jersey Constitution
authorizing the legislature to enact new statutory
provisions permitting the disclosure of sex offender registry
information to the general public. N.J. Const. art. IV, § 7,
¶ 12. Thereafter, the New Jersey legislature passed a
statute authorizing the creation of an internet registry
which supplements the existing registration and notification
system and contains information about certain high and
moderate risk sex offenders. See N. J. Stat. Ann. §§ 2C:7-12
et seq. (2003) (“Registry”).

                              II.

                  PROCEDURAL HISTORY
  Appellants (“Registrants”) are convicted sex offenders
required to provide personal information to be placed on
the Registry. They filed suit in the United District Court for
the District of New Jersey challenging the constitutional
amendment authorizing the creation of the Registry and the
Registry itself. Specifically, the Registrants claimed that the
Registry violated their rights under the Ex Post Facto and
Double Jeopardy Clauses of the United States Constitution
and their constitutional right to privacy in their home
addresses and in the compilation of information posted on
the Registry. Thereafter, they filed a motion for a
preliminary injunction to prevent the State from
implementing the Registry.
  The District Court granted in part and denied in part the
Registrants’ motion for a preliminary injunction. A.A. v.
New Jersey, 176 F. Supp. 2d 274 (D. N.J. 2001).
Specifically, it denied their ex post facto, double jeopardy,
and privacy claims as to the compilation of information. Id.
at 297, 307. It concluded, however, that the Registrants
had established a reasonable likelihood of success on the
merits of their privacy claim as to their home addresses. Id.
                                 6


at 307. The Registrants have appealed the District Court’s
denial of their ex post facto, double jeopardy, and privacy
claims as to the compilation of information. The State
cross-appealed from the District Court’s injunction as to
the Registrants’ home addresses. We scheduled oral
argument to hear the appeal and cross- appeal. After the
Supreme Court granted certiorari in a Megan’s Law case
raising identical ex post facto claims — vis-a-vis Alaska’s
internet registry — we postponed argument. The Supreme
Court has since spoken.
   In Smith v. Doe, 123 S. Ct. 1140 (2003), the Court held
that Alaska’s internet registry is not punitive and thus its
retroactive application does not violate the Ex Post Facto
Clause.1 The Registrants concede that the Supreme Court’s
decision in Smith effectively disposes of their ex post facto
and double jeopardy claims, thereby leaving us to consider
only claims as to their privacy interests. Although the
Supreme Court in Smith was not presented with and did
not discuss privacy issues as to Alaska’s Registry, much of
its discussion is nonetheless instructive and will be
explored below.

                                III.

                          DISCUSSION
A.   Jurisdiction and Standard of Review
  We have jurisdiction to hear this appeal pursuant to 28
U.S.C. §§ 1291 and 1292(a)(1). The District Court’s
determination as to the preliminary injunction “will be
reversed only if the court abused its discretion, committed
an obvious error in applying the law, or made a serious
mistake in considering the proof.” Loretangeli v. Critelli, 853
F.2d 186, 193 (3d Cir. 1988). Nonetheless, we exercise
plenary review over the District Court’s conclusions of law

1. The same day Smith was rendered, the Supreme Court also issued its
opinion in another Megan’s Law case. In Connecticut Dept. of Public
Safety v. Doe, 123 S. Ct. 1160 (2003), the Court upheld Connecticut’s
internet registry of convicted sex offenders against a procedural due
process challenge.
                                     7


and its application of the law to the facts. Southco, Inc. v.
Kanebridge Corp., 258 F.3d 148, 150-51 (3d Cir. 2001).
B.     Privacy Claims as to Registrants’ Home Addresses
  In its cross-appeal, New Jersey contends that the District
Court erred in enjoining the State from posting on the
internet information identifying the house or apartment
number, street, zip code, and municipality of Registrants.
Currently, the only geographic information available on the
Registry is the Registrant’s county of residence. The State
contends that its compelling interest in making this
information available through the internet to enhance
public safety outweighs the Registrants’ limited privacy
interest in avoiding disclosure of their home addresses. The
Registrants, on the other hand, urge us to uphold the
District Court’s partial preliminary injunction, arguing that
“well-established precedent” has settled the issue as to
their constitutionally-protected privacy interest in the
confidentiality of their home addresses. For this
proposition, they cite to Paul P. I. and Paul P. II..
   In Paul P. I., plaintiffs were a class of registrants who
challenged New Jersey’s Megan’s Law, claiming that the
statutory requirement under the notification system
requiring them to provide extensive information to law
enforcement, including their home addresses, violated their
constitutionally-protected right to privacy. 170 F.3d at 398.
Under the challenged notification system, the information
provided by the registrant was placed into a central registry
available to law enforcement personnel but not to the
public. Id. at 399. Thereafter, law enforcement officials used
that information to determine the registrant’s “risk of
offense,” assigning the registrant to one of three tiers which
represented the registrant’s risk of committing repeat sex
offenses. Id. The tier assigned in turn determined which
members of the community would receive the information.2
Id.
     Like the Registrants before us now, plaintiffs in Paul P. I.

2. Plaintiffs in Paul P. I. were Tier 2 and Tier 3 registrants. For purposes
of our analysis in the current case, the absence of Tier 1 registrants in
Paul P. I. is inconsequential.
                              8


claimed that their privacy interests were being violated by
the dissemination of their homes addresses and in the
compilation of personal information. Id. We considered their
claims in light of our decision in E.B., where we upheld the
notification requirements of Megan’s Law against double
jeopardy and ex post facto challenges. Paul P. I., 170 F.3d
at 400-01. We further explored our own jurisprudence as to
the type of information that may be protected from
disclosure based on a privacy interest, and we concluded
that even information that is entitled to privacy protection
may be subject to disclosure if the government’s interest in
disclosing that information is compelling. Id. at 401-02.
   While noting that there is some “nontrivial interest” in
one’s home address, we concluded that the State’s interest
in informing the public about the location of prior sex
offenders and preventing sex offenses was compelling. Id. at
404. However, we remanded the case to the district court to
consider the plaintiffs’ subsequent motions detailing events
causing “serious adverse consequences” to them and their
families to assure that the information was being disclosed
only to those individuals with a particular need for it. Id. at
406.
  On remand, the district court held that the notification
procedures were unconstitutional because they did not
adequately safeguard against the unauthorized disclosure
of protected information. Paul P. v. Farmer, 80 F. Supp. 2d
320, 325 (D. N.J. 2000). The district court directed the
defendants to redraft the Attorney General’s Guidelines to
“reasonably limit disclosure to those entitled to receive it.”
Id. After receiving a copy of the revised Guidelines, the
district court concluded that they adequately safeguarded
plaintiffs’ interests in assuring disclosure was made only to
those with a particular need for it. Paul P. v. Farmer, 92 F.
Supp. 2d 410, 414 (D. N.J. 2000). Plaintiffs appealed and
we affirmed the district court’s decision in Paul P. II., 227
F.3d at 107. In so doing, we noted the precarious nature of
our privacy inquiry as “this case begins with the
understanding and, indeed, the requirement that what
might otherwise be private information be made public.” Id.
at 99. In sum, “Megan’s Law’s fundamental purpose . . . is
public disclosure.” Id. at 106 (emphasis in original).
                               9


   Before us, the Registrants argue that Paul P. I. and Paul
P. II. settle our current privacy inquiry, going so far as to
claim that we would have to reverse those decisions in
order to find for the State. However, neither of those
decisions states that the State cannot disclose the
addresses of convicted sex offenders on the internet.
Indeed, both of those decisions upheld the then applicable
notification system of Megan’s Law as against privacy
claims by a group of convicted sex offenders. See also
Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999)
(holding that Constitution does not provide registrant right
to keep his registry information private), cert. denied, 529
U.S. 1053 (2000); Russell v. Gregoire, 124 F.3d 1079, 1094
(9th Cir. 1997) (finding no privacy interest in the general
vicinity of registrant’s home address), cert. denied sub nom.
Stearns v. Gregoire, 523 U.S. 1007 (1998).
   Thus, neither Paul P. I. nor Paul P. II. is dispositive of the
issue whether the State violates the Registrants’ privacy
rights by providing their home addresses on the internet.
Admittedly, the Registry entails notification of a different
dimension but our analytic approach here is the same. Our
initial inquiry must be whether the information at issue is
entitled to protection in the first place. To answer this
question, we consider “ ‘whether it is within an individual’s
reasonable expectation[ ] of confidentiality.’ ” Paul P. I., 170
F.3d at 401 (quoting Fraternal Order of Police v. City of
Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987)). If it is
determined that the information is entitled to protection, we
proceed to balance the privacy interest at stake with the
State’s interest in disclosure. Id. at 404. Thus, “[e]ven
information that is entitled to privacy protection may
nonetheless be subject to disclosure when the government’s
interest in disclosure is compelling.” Id. at 402.
  In Paul P. I., we recognized “some nontrivial interest in
one’s home address by persons who do not wish it
disclosed. . . .” Id. at 404 (emphasis in original). We
nonetheless denied the registrants’ privacy claims in that
case after concluding that the State’s interest in disclosure
— namely, preventing sex offenses — was compelling. Id.
The question of one’s privacy interest in a home address
was reconsidered in Paul P. II. There, we stated that
                              10


“[w]hatever privacy interest, if any, may exist in the area of
one’s residence . . . is substantially outweighed by the
state’s compelling interest in disclosing Megan’s Law
information to the relevant public. . . .” 227 F.3d at 107.
  Viewing Paul P. I. and Paul P. II. in tandem, it is clear
that a registrant’s right to privacy in his or her home
address gives way to the State’s compelling interest to
prevent sex offenses. Thus, we merely consider whether the
addition of the Registry over Megan’s Law’s original
notification scheme tips the balance back in favor of the
Registrants. In other words, does the State’s interest in
using the internet as a vehicle to provide the public with
notice of the whereabouts of convicted sex offenders
outweigh the Registrants’ “nontrivial” privacy interest in
their home addresses.
   The Registrants argue that by placing the information on
the internet, the State is providing it to persons who do not
have any particularized need for the information. The State
responds that this argument ignores a fundamental
characteristic of our modern society, that of mobility. We
agree. The Registrants’ argument ignores both the need to
access information in a mobile society and the difference
between the system of notification at issue here and that at
issue in our prior opinions.
   Under the original notification system, if the registrant’s
risk of re-offense is high, then persons “likely to encounter”
the offender receive geographic information about the
registrant. N. J. Stat. Ann. § 2C:7-8c(3). Those deemed
“likely to encounter” are generally persons living in the
direct vicinity of the registrant. The statute provides that
the breadth of notification is generally left to the discretion
of two county prosecutors, one from the county where the
registrant was convicted and the other from the county
where the registrant resides. N. J. Stat. Ann. § 2C:7-8d.
   In contrast, the Registry is available on the internet to
the general public. The New Jersey statute creating the
Registry sets forth the basis for the law, explaining that
“[t]he technology afforded by the Internet would make this
information readily accessible to parents and private
entities, enabling them to undertake appropriate remedial
                                   11


precautions to prevent or avoid placing potential victims at
risk.” N. J. Stat. Ann. § 2C:7-12. New Jersey’s stated
interest in providing this information via the internet can
be more fully understood through some examples the State
provides in its brief.
   Consider parents with young children who want to
purchase a new home in New Jersey. Without the Registry,
they would not be notified of the presence of convicted sex
offenders, even those with a high risk of re-offense, until
they had already purchased their new home which may be
in the proximity of a Registrant’s home. Under the original
notification system, the parents have no ability to obtain
this information. So, too, a family planning a vacation at
the New Jersey Shore. Without the listing of geographic
information on the Registry, the family could not obtain
information as to the location of convicted sex offenders in
the area.
   It is apparent that these families have no less need for
the same geographic information currently made available
to those individuals deemed “likely to encounter” the sex
offenders under the original notification system. Thus, we
cannot say that New Jersey does not have an equally
compelling interest in protecting these persons as it does in
protecting those persons covered by the existing Megan’s
Law notification system. Indeed, discovering this
information after the fact undermines the stated goal of
New Jersey, which is to enable parents to “prevent or avoid
placing potential victims at risk.” N. J. Stat. Ann. § 2C:7-12
(emphasis added).3

3. It should be noted that New Jersey has incorporated various
safeguards to protect against misuse of the information available on the
Registry. For instance, the Act directs the Attorney General to “[e]nsure
that the Internet registry contains warnings that any person who uses
the information contained therein to threaten, intimidate or harass
another, or who otherwise misuses that information may be criminally
prosecuted. . . .” N.J. Stat. Ann. § 2C:7-14. The Warnings are clearly
posted on the Registry and appear before a person may see any
information contained in the Registry. The Act also provides for further
criminal penalties for anyone who uses the information to commit a
crime and also largely prohibits the use of information available on the
                                    12


  Thus, notwithstanding the nontrivial interest in one’s
home address previously recognized in Paul P. I., we
conclude that whatever privacy interest the Registrants
have in their home addresses is substantially outweighed
by the State’s interest in expanding the reach of its
notification to protect additional members of the public. In
so concluding, we bear in mind the recent decision of the
United States Supreme Court in Smith v. Doe, 123 S. Ct.
1140 (2003). Although the issue presented in Smith was
whether Alaska’s internet registry was an impermissible ex
post facto statute and the registrants did not raise any
privacy claims, the Smith Court’s views as to disclosure of
Megan’s Law information via the internet were made
abundantly clear. In rejecting the registrants’ argument
that posting their information on the internet constituted
punishment, the Court stated:
     The purpose and the principal effect of notification are
     to inform the public for its own safety, not to humiliate
     the offender. Widespread public access is necessary for
     the efficacy of the scheme, and the attendant
     humiliation is but a collateral consequence of a valid
     regulation.
123 S. Ct. at 1150.
  The Court further shifted the blame for any negative
consequence to the registrants themselves, noting that:
     Although the public availability of the information may
     have a lasting and painful impact on the convicted sex
     offender, these consequences flow not from the Act’s
     registration and dissemination provisions, but from the
     fact of conviction, already a matter of public record.
     The State makes the facts underlying the offenses and
     the resulting convictions accessible so members of the

Registry “for the purpose of applying for, obtaining . . . : (1) Health
insurance; (2) Insurance; (3) Loans; (4) Credit; (5) Education,
scholarships, or fellowships; (6) Benefits, privileges, or services provided
by any business establishment, unless for a purpose consistent with the
enhancement of public safety; or (7) Housing or accommodations.” N.J.
Stat. Ann. § 2C:7-16
                              13


      public can take the precautions they deem necessary
      before dealing with the registrant.
Id. at 1151. Furthermore, the Smith Court noted that:
      The process is more analogous to a visit to an official
      archive of criminal records than it is to a scheme
      forcing an offender to appear in public with some
      visible badge of past criminality. The Internet makes
      the document search more efficient, cost effective, and
      convenient for Alaska’s citizenry.
Id.
  Informed by the Supreme Court’s analysis in the Smith
decision, we conclude that New Jersey may permissibly use
the Registry as a “more efficient, cost effective, and
convenient” avenue to provide its citizens with needed
information.
  The Smith decision was issued after the District Court’s
order granting a preliminary injunction based on our earlier
decisions and thus the District Court did not have the
benefit of the Supreme Court’s view. We believe it is likely
that had it been available, it would have altered the
balance.
C.    Privacy Claims as to Compilation of Information
   We next consider the Registrants’ argument that they
have established a reasonable likelihood of success on the
merits of their claim that the Registry violates their right to
privacy in the compilation of information. According to the
Registrants, the State violates their privacy rights when it
compiles information such as their names, ages, race, birth
dates, height, weight, and hair color. In other words, when
the State gathers in one place information that is otherwise
public — yet scattered — the compiled unit becomes
entitled to a constitutional right to privacy. We have never
recognized such a privacy right, the District Court rejected
it, and the Registrants have not provided us with a
persuasive reason to do so now.
  When presented with a similar compilation argument in
Paul P. I., we stated that “[b]ecause we find the
government’s interest in preventing sex offenses compelling,
                               14


we need not decide whether the degree of effort needed to
assemble otherwise available but dispersed information
ought to be considered as a factor in determining the
reasonableness of an individual’s expectation of privacy in
the compiled data.” 170 F.3d at 404.
   That reasoning is equally applicable here. We conclude
that the State’s compelling interest in preventing sex
offenses substantially outweighs any interest the
Registrants may have in not having public — yet scattered
— information compiled.

                               IV.

                        CONCLUSION
   For the reasons set forth above, we will affirm the District
Court’s denial of the Registrants’ motion for a preliminary
injunction as to the compilation of information in the
Registry. Furthermore, we will remand to the District Court
with instructions to dissolve the preliminary injunction as
to the Registrants’ home addresses. The mandate shall
issue forthwith.

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit
