THE 15-YEAR TIME BAR IN SUBSECTION F WAS CONSIDERED BY THE C KFRMENT COURT
I WOULD LIKE TO STAY A FEW WORTSDZ BECAUSE I LITIGATED THAT CASE AND I CAN MY
OBSERVATIONS ARE THAT SUBSECTION F WAS NOT LITIGATED AND THEREFORE NO EVIDENTIARY
RECORD WAS CREATED REGARDING SUBSECTION F TIME BARS, IT WAS EXCLUSIVELY THE LIFETIME
BARS OF SUBSECTION G. CHIEF JUSTICE RABNER: MAY I JUST HELP
YOU? THE OPINION SPEAKS FOR ITSELF. JAMES H. MAYNARD: YES.
BUT IT HAS BEEN BROUGHT UP MULTIPLE TIMES AND I JUDGE US WANL TODD POINT
OUT IT WAS NEVER BRIEFED, IT WAS NEVER. CHIEF JUSTICE RABNER: I
TRIED TO STOP THAT WHEN IT WAS FIRST BROUGHT UP EARLIER. JAMES
H. MAYNARD: THANK YOU. REGARDING THE INTEREST IN THE DOE CASE AS
IT RELATES TO THE CONSTITUTIONALITY OF THE 15-YEAR TIME BAR AND WHETHER OR NOT
THAT WAS SETTLED. I HAVE TO REITERATE AND I HAVE TO TRY TO BE AS CLEAR AS POSSIBLE
THAT THE DOE COURT TERMINATIONS WERE NOT BEFORE THE DOE COURT. THEY SIM
MR. I WEREN'T. CERTAINLY THE LIFETIME BARS ARISING FROM THE CONFLUENCE OF A D
AND H D WHICH PROVIDED FOR A DEFINITION OF OFFENSE WHICH WAS CRIME DP DP
DEE VERY MINOR THINGS THAT LED TO ALIVE TIME BAR WITHOUT ANY EXCEPTION, THAT
CONFIGURATION WAS NEVER BEFORE THE DOE COURT AT ALL. BUT I JUST -- I THINK
IT'S IMPORTANT TO MAKE CLEAR THAT THE DOE COURT WAS FOCUSED ON THE ELIGIBILITY TO BE
PLACED ONTO MEGAN'S LAW AND REALLY DIDN'T TREAT OR MAKE ANY HOLDINGS RELATED
TO TERMINATION ISSUES. AND THEN REGARDING NEW FACTS.
JUSTICE PATTERSON: NOT TERM NATHS BUT AS TO THE BAR, THE TERMINATION WAS OBVIOUSLY
AN A MEAL RACIAL OF THE BAR RIGHT. JAMES H. MAYNARD: SURE
THE ONE WAY. JUSTICE PATTERSON: OF COURSE THEY WEREN'T ON
THE TABLE BECAUSE THE LEGISLATURE HADN'T MATD THOUGH DETERMINATIONS YET.
JAMES H. MAYNARD: GREED THE WAY THE COPS SUBSTITUTION ALT DOES TOUCH THEY
DID DECIDE THE CONSTITUTIONALITY THE SKEENL AS IT EXIST TID AND OF COURSE
THE 15-YEAR TIME BAR WAS IN THE ORIGINAL VERSION EVER SUBSECTION F BUT THEY SAID
VERY SPECIFICALLY THAT IT RELATED TO RISK ONGOING RISK AND WHEN S ONE WAS NO
MORE DIFFERENT THAN THAN ELSE IN THEIR NEIGHBORHOOD THEY SHOULD THAN BOO E
BOLT ERD NIM, THAT WHEN RISK SUBSIDED, THAT MEGAN'S LAW WOULDN'T IN FACT BE
CONSTITUTIONAL TO CONTINUE TO BE #I78 POSED. REGARDING THE CONSENT
OF NEW FACTS ESPECIALLY SCIENTIFIC EVOLUTION JUSTIFYING JUDICIAL REVIEW
AND REEVALUATION OF CONSTITUTIONALITY OF LAWS I WOULD POINT TO J L G THIS COURT
IN THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME UTILIZED SCIENCE AND CHANGED
SIGN IT EVOLVING SCIENCE TO STRIKE DOWN PROCEDURES THAT HAD BEEN VERY COMMON AND
HAD PROFOUND IMPACTS IN CRIMINAL LAW. STATE V. MOORE, WHICH
STRUCK DOWN OR DEE AUTHORIZED HIN NOT CLI REFRESHED TESTIMONY, AND LAST BUT
CERTAINLY NOT LEAVE THE, BROWN VERSUS BOARD OF EDUCATION, WHICH WAS BATSED ON SOCIAL
SCIENCE AND EFRL LUGS OF SOCIAL SCIENCE TO REEVALUATE THE CONSTITUTIONALITY
OF SKEEMENTS SUCH AS SEPARATE BUT EQUAL. SO THE LAW IS REPLETE WITH THE ASSERTION
THAT CIRCUMSTANCES HAVE CHANGED BY SOME LITIGANT, MANY OF THOSE CHANGED
CIRCUMSTANCES ARISE FROM THE EVOLUTION OF SCIENCE, AND THEN OR DEMOGRAPHICS OR
OTHER THINGS, AND THEN THOSE CHANGES DUE IN FACT JUSTIFY THE REEVALUATION OF
CONSTITUTIONALITY OF LAWS. CHIEF JUSTICE RABNER: THANK YOU COUNSEL.
JAMES H. MAYNARD: YOU'RE VERY WELCOME. CHIEF
JUSTICE RABNER: MR. NOVECK. MICHAEL R. NOVECK: THANK YOU, YOUR
HONOR.S AND MAY IT PLEASE THE COURT. THE OFFICE OF THE PUBLIC
DEFENDER HAS BEEN LITIGATING THE CONSTITUTION TALT OF SUBSECTION IFS
IMPOSITION OF PERMANENT LIFETIME NOT GUILTY REGISTRATION FOR CHILDREN EVER SINCE
IN COURT'S OPINION IN H D. WE AGREE WITH J A THAT THE PERMANENT LIFETIME
REGISTRATION BAR AT ISSUE HERE VIOLATES SUBSTANTIVE DUE PROCESS AND I WANT TO
ADDRESS 3 POINTS BASED ON THE 0 PEDS EXPERIENCE LITIGATING THESE CASES.
FIRST I WAVENT TO TALK ABOUT THE HARMS THAT PERMANENT LIEFR THIENL
REGISTRATION IMPOSES ON CHIRNSS LIBLT INTERESTS WHICH IS. Q. OKAY.
TO RESPOND JUSTICE SOLOMON TO TO YOUR QUESTION ABOUT THE RIGHTS AT STAKE AND IT IS
GOING TO ADDRESS THE FIRST TWO BRONX OF THE STANLT STAF DUE PROOS EAST TEST
WHICH ARE THE NATURE OF THE RIGHT AND THE RESTRICTION IMPOSED ON THAT RIGHT.
SECOND, I WANT TO TALK ABOUT THE EVIDENCE OF CHIRNS' LACK OF
SEXUAL RECIDIVISM EVEN AFTER COMMITTING A SKWENLTS NONE SEXUAL OFFENSE WHICH ADDRESS
EAST THE THIRD FACTOR OF THE TEST REFLEERD FOR RETREKZ THEN TALK ABOUT WHAT
THE COURT IS GOING TO DO ABOUT IT? CHIEF JUSTICE RABNER: MR. NOVECK
CAN I ASK AH KWI ABOUT RIGHT DOES THE CONSTITUTIONAL CHALLENGE HERE
POTENTIALLY SET A PRESENCE PAROLE INELIGIBILITY THAT WOULD EXTEND BEYOND
JUVENILES. MICHAEL R. NOVECK: SO THE #R0RD THAT WAS CREATED
IN THIS INDICATION THE RECORD THAT WE HAVE CREATED IN OUR CASES, THE #R0RD THAT
WE'VE TRIED TO SFLIT TO THE KOERLT THROUGH OUR AM KUS BRIEF IS ALL ABOUT
CHILDREN. WE TALK ABOUT THE HARMS IMPOSED ON CHILDREN, WE TALK ABOUT THE BRAIN
SIGN IT OF CHILDREN SHLGS WE TALK ABOUT THE RISK OF FUTURE RECIDIVISM BY
CLIRN. WE ARE HERE TODAY TO TALK ABOUT CLIRN. CHIEF JUSTICE RABNER:
UNDERSTAND THAT. BUT MUCH OF THE FOCUS IS ALSO ON THE RECIDIVIST JURY THE
RATE OF REFENTS. WOULD THE PRINCIPLES BEING ADVANCED WITH RESPECT TO THAT APPLY
TO YOUNG ADULTS AS WELL? MICHAEL R. NOVECK: I THINK TO SOME
EXTENT THEY COULD DEPENDING ON THE RECORD THAT'S KRELTED. BUT THE CASE
LAW A LOT OF THE CASE LAW THAT WE ARE RELYING ON WHICH INCLUDES C K, THE ROENER
LINE OF CASES CASES FROM OTHER JURISDICTIONS REALLY TALK ABOUT YOUTH AND
CHILDREN AND THE COMMUNITY SUPERVISION FOR LIFE CHILDREN ARE DIRN JURISPRUDENCE
#6R78 SO IT THIS I WOULD BE A DIFFERENT CASE. WOULD THE TYPE OF EVIDENCE
WE'RE PROVIDING IF THERE WAS EVIDENCE SIMILAR FOR ADULTS? SUPPORT A CHANNEL LIKE
THAT? MAYBE IF THE COURT LOOKED AT THE RECORD IN THAT CASE AND DECIDED IT WAS
APPLICABLE. BUT IT WOULD BEEN A DIFFERENT ANALYSIS IT WOULD BE THE SAME I THINK
MR. MAYNARD IT RIGHT IT WOULD BE THE SAME STANLT TIFR DUE PROCESS QUESTIONS BUT
I THINK IT ANALYSIS WOULD BE DIFFERENT FRM SO I DO NOT THINK THAT A RULING
IN THIS CASE IN FAVOR OF US ON CHILDREN WOULD NECESSARILY APPLY TO YOUNG ADULTS,
WOULD NISLY REPLY TO OLDER A DULL IT WOULD BE A DIFFERENT RECORD AND A DIFFERENT
CASE. DOES THAT ANSWER THE QUESTION. CHIEF JUSTICE
RABNER: PLEASE GO AE HEAD. MICHAEL R. NOVECK: SO I DO DWANT TO
TALK ABOUT THE HARMS OF REGISTRATION FOR OUR YOUTH FULL KLEIN. IN THE PRIOR
CASE TIER ONE KONLS TO POLICE STATION AND RENLS TER EVERY YEAR THAT IS THE SAME
ARGUMENT THAT WAS MADE IN C K THAT THIS COURT REJECT. IT IS THE SALE ASHTH
THAT THE APTHS CONSIDERED AND REJECT IN THE CASE IN R.H. RENL TRANT A A WHICH BE
DISCUSSED THAT WAS ABOUT PROCEDURES FOR PEOPLE WHO MOVE OUT FROM HERE FROM
OUT-OF-STATE AND HAVE A CONVICTION THAT IS ARGUABLY SIMILAR TO A MEGAN'S LAW
RESTRICTION. AND IT'S JUST COMPLETELY CONTRARY TO THE EXPERIENCES OF OUR
CLIENTS. AND OUR BRIEF TRIED TO TELL THOSE STORIES AND I WANT TO AMPLIFY SOME OF
THEM HERE. AND RESPOND TO JUSTIN WAYNEER APRIL TEARS QUESTION
WHAT IS THE FUMAL RIGHT AT STAKE. THE RIGHT AT STAKE IT IS IN THE STATE CONSTITUTION
IT IS SEVERE IT IS A RIGHT TO SAFETY AND LIBLT AND HAN NECESSARY ARM ONE
PARAGRAPH ONE SAYS ALL PERSONS ARE BY NATURE FLEE AND INDEPENDENT EVEN HAVE CERTAIN
NATURAL AND UNEMAIL NABL RIGHTS, AMONG WHICH ARE THOSE ENJOYING AND DEFENDING
LIFE AND LIB OF AN INQUIRING POSSESSING AND PROTECTING PROPERTY AND OF PURSUING
AND OBTAINING SAFETY AND HAEP NECESSARY. THE COURT STHAS REPEATEDLY EM
PHASIZED THAT IS THAT AN AN EXTREMELY BROAD PROVISION DIFFERENT THAN THE
PROVISIONS THAT ARE IN THE FEDERAL CONSTITUTION WHERE UFRT TEERD ANALYSIS OF
WHETHER SOME IS A FINLAL RIGHT WHETHER IT IS NOT AND STRIK SCRUTINY OR NOT.
THE COURT HERE IN OUR STATE HAS ALWAYS APPLIED A BALANCING TEST. AND HAS LOOKED
AT THE NATURE OF THE RIGHT AT STAKE AND THE IMPOSITION THE NEED FOR THE INL
POSITION OF THAT RIGHT, AND DONE A REASONABLE RELATIONSHIP ANALYSIS. SO THAT'S
REALLY WHAT WE ARE TALKING ABOUT LERER WHEN WE ARE TALKING ABOUT AUMENTAL
RIGHT IT IS REALLY THE FUNLTAL RIGHT TO DUE PROPERTIES EAST AND TO TALK ABOUT THE
PRIEFRTS SIGH ACKNOWLEDGE LIBERTY INTERESTS THAT OUR CLIENTS SUFFER ARE
AFFECTED EFFECT OUR CLIENT IN THE MEGAN'S LAW CONTEXT. A BILLING ONE US
HOUSING. WE TALK IN OUR BRIEF WITH ABOUT R WFRMENT WHO WAS A SINGLE MROERT TRIED
THO OBTAIN FEDERALLY SUBSIDIZEED HOUSE WILL GO THAT WAS SPECIFIC FOR SINGLE
MOERTS AND WAS NOT ABLE TO DO THAT BECAUSE A FEDERAL STATUTE AND REGULATION PRIBTS
A PERSON ON ALIVE TIME REGISTRATION REQUIREMENT FROM OBTAINING HOUSE WILL
GO. OUR CLIENT B Y HAS LTS HAD TRUNL OBTAINING HOUSING PART
OF THAT IS BECAUSE HE HAS ADULT CONVICTION FOR FAILURE TO RERJS INTERPRETER THAT
IS ESSENTIALLY A CONSEQUENCE OF HIS REGISTRATION REQUIREMENT I AM GOING TO
TALK ABOUT THAT IN A MINUTE AS WELL. AND SO THAT CONVICTION KONLS
UP ON BACKGROUND CHECKS. BUT THERE IS TLAMG ANOTHER STATUTE THAT I APOLOGIZE
WE DID NOT CITE IN OUR BRIEF, THAT SAYS GENERALLY A JUVENILE ADJUDICATION DOES
NOT COME UP 0 NA BACKGROUND CHECK BUT UNDER THE 2022 FAIR CHANNELS AND
HOUSING ACT, THE CITATION IS N.J.S.A. 46: 8- 55 A ONE, A LANDLORD CAN ASK EVEN BEFORE LETTING YOU FILLING OUT AN APPLICATION WHETHER YOUR SUBJECT TO A
PROGRAM. AND THEY CAN LOOK AT THAT EVEN BEFORE YOU APPLY OR THEY GIVE YOU A
CONDITIONAL OFFER ON THE APARTMENT AND DECIDE TO DENY YOU ON THAT BASIS.
OUR CLIENTS OUR CHILD JUVENILE SEX OFFENDER CLIENTS ARE SRJ TO A LIFETIME REGISTRATION
REQUIREMENT AND CAN BE DENIED HOUSING ON THAT BASIS AS WELL. SO
HOUSING IS A BIG ONE. RISK TO BEING OUTED IN TERMS OF PRIVACY AND
REPUTATION EVEN FOR TIER ONE OFFENDERS WHO RNT AREN'T SUBJECT TO COMMUNITY
NOIFRGS THESE LISTS ARE LEAKY. OUR CLIENTS J U WAS OUTED TO HIS FAMILY, HIS SFEP
CLIRN WHO DID NOT KNOW ABOUT HIS REGISTER EXTRA IGS REQUIREMENT BECAUSE
A DEE THEE KROO FEE ME CASEWORKER REVEAL THE INFORMATION TO HIS SGLFRJTS THE STATE
SAYS ON PAGE 16 DOE SAGS THE PRIVACY INTERESTS AREN'T THAT R GREAT BECAUSE
PAY CRIMINAL CONVICTION IS PUBL IN I WAY. THAT IS TRUE FOR ADULTS AND DOE WAS
A CASE ABOUT ADULTS WE ARE NOT ASKING YOU TO OVERRULE DOE BUT WE ARE ASKING YOU
TO LOOK AT DOE CAREFULLY ABOUT WHAT IT HELD AND WHAT DID IT NOT HELD DOE WAS A
CASE ABOUT ADULTS. CHILDREN YOUR JUVENILE ADJUDICATION IS GENERALLY NOT PUBLIC.
MEGAN'S LAW IS AN EXCEPTION TO THAT THAT IMPLICATES PRIVACY INTERESTS THAT ARE
AT STAKE IN THIS CASE. JUSTICE WAINER APTER: SPIFRL HELD
THAT THE CHALLENGE PROVISIONS OF MEGAN'S LAW DO NOT CONSTITUTION SUBSTITUTE
PUNISHMENT DO YOU DISAGREE WITH THAT. MICHAEL R. NOVECK:
WE ARGIROPOULOS IN OUR CASES THAT THESE PROVISIONS VIOLATED THE EIGHTH A
MEMORANDUM AND ARTICLE ONE PARAGRAPH 12. THAT'S NOT AT ISSUE IN THIS CASE BUT WE
DO BELIEVE IT CONSTITUTION STUTS PUNISHMENT. IF WE LOSS THIS CASE WE EVER A
CASE PENLDZ WILL GO IN THE AN PGS THAT RAISES PUNISH NL BASED ARGUMENTS THAT
WE WOULD CONTINUE TO CONTINUE WITH. I WILL SAY WE CITED SOME OF THE
PUNISH. BASED CASES IN OUR PREEFR BECAUSE AND ACTUALLY I AM GOING TO GET
FLOO THIS RIGHT NOW THEY I AM MROO I INDICATE SOME OF THE HARMS COURTS IN THE
PUNISH MTH CONTEXT HAVE THO CONSIDER BH THERE IS AN AFRNLT TIFR DIMENT IMPOSED
BY THE CONSEQUENCE. AND COURTS IN OTHER STATES HAVE HELD IN HOLDING THAT PARTS
EVER MEGAN'S LAW ARE PUNISHMENT HAVE TALKED ABOUT THIS AND I THINK IT'S
RELEVANT TO THE IMPLICATIONS OF THE PRIVACY AND LIBERTY INTERESTS AFFECTED BY OUR
CLIENTS. JUSTICE WAINER APTER: IN YOUR OTHER CASES WITH
REGARD TO. JUSTICE PIERRE-LOUIS: THE ARGUMENT THAT THIS
IS PUNISHMENT, JUST WRASHD TO JUVENILES. MICHAEL R. NOVECK: CORRECT
WE EVER ARGUED WITH REGARD TO JUFRGS AGAIN ALL THAT JUVENILE CASE LAW COMB
ER AND ITS PREDECESSORS. JUSTICE WAINER APTER: KWI WERE ALL BASED
ON CRUEL AND STANLT I HAVE DUE PROLS EAST RIGHTS CORRECT THE FEDERAL ONES
THAT YOU ARE BASING IT ON. MICHAEL R. NOVECK: CORRECT.
SO COURTS IN THAT PUNISHMENT CONTEXT AND THEN WE ARE NOT TALKING ABOUT PUNISHMENT
HERE BUT THIS IS RELEVANT TO THE #I78 REPLY INDICATION LGS OF YOUR LINLT
INTERESTS AT STABLG IN MEGAN'S LAW. THEY TALK ABOUT HOW AND YAL REGISTRATION CAUSES
STIGMA AND TRAUMA WHICH COURTS HAVE LIKE END TO APPOINT PROBATION ON JUVENILES.
OUR CHILDREN CLIENTS WHEN TLEG TO THE POLICE STATION TO REGISTER THEY SAY YOU JUST
HAVE TO GO AND REGISTER REGISTRATION INVOLVES GOING TO THE POLICE STATION,
BEING FRINTED, RECOUNTING WHAT YOU'VE DONE, WHICH ITSELF IS A SOERTS OF TRAUJ AN
ESPECIALLY FOR CLIRN WHO MADE MISTAKES AS THEY WERE GROWING UP YOU HAVE
TO PROVIDE A WHOLE TON OF INFORMING MY FAVORITE IS YOU HAVE TO PROVIDE ANY DEVICE
THAT HAS INTERNET CAPABILITIES SOMEONE WHO IS TRYING TO PIE A NEW STOEFR I CAN
TELL YOU LOTS OF DEE VIEBLG EAST HAVE INTERNET CAPABILITY. EXPOSURE TO FAILURE
TO RENL INTERPRETER CHARGES IS ANOTHER ONE. COURTS HAVE LIKE END THAT TO
REFR KRAGS OF PROELG AND OUR KIERNT B J OBVIOUSLY HAD THAT ISSUE WITH HIS FAILURE
TO REGISTER CASE. THERE IS LOTS OF RESEARCH AND STUDIES ON PAIN 17 OF OUR BRIEF
KRIELTED IN THE KRFRM KFRMENT OPINION FRSLYLY FROM PROVIDERS OR THAT TALKS
ABOUT THE HARNLS IMPOSED ON CLIRNL THESE ARE CHILDREN SPECIFIC STUDIES, BY MEGAN'S
LAW REGISTRATION INCLUDING A SIGNIFICANT INCREASED RISK OF SUICIDE.
SO THAT'S COMMUNITY SUPERVISION FOR LIFE THE FIRST TWO THE ONE SIETD OF THE
BALANCE THE FIRST TWO PARTS OF THE TEST INTRUSION, WHAT THE LIBLT INTEREST
IS AND HOW IT'S INTRUDED AND THEN YOU HAVE TO WEIGHT OTHER SIDE WHICH IS THE PUBLIC
NEED FOR THE RESTRICTION. YOU ASKED THAT THERE WAS A PERFECT FIT WITH THE
SCIENCE IN EVERY SINGLE CASE BUT THESE ARE THE WEIGHING DECISION ALSO THAT NEED
TO HAPPEN IN THE SUBSTANTIVE DUE PROCESS CONTEXT. AND SO WHEN YOU ARE LOOKING
AT PUBLIC NEED FO ARE MEGAN'S LAW YOU ARE AND YOU ARE THINKING ABOUT THE NEED TO
NERVE LAW ENFORCEMENT AND THE PUBLIC OF PEOPLE WHO ARE A RISK, THE SCIENCE
AND THE DATA ARE ALL A HUNDRED PUBLIC EMPLOYMENT RETIREMENT SYSTEM CLEAR ON OUR
SIDE OF THE LENLER THAT JUVENILES ADJUDICATED DELINQUENT DO NOT POSE A
LIFETIME RISK OF SECTION OFFENDING INCLUDING IF THEY EVER COMMITTED A SKWENTS NON
SEXUAL OFFENSE. C KFRMENT TALKS ABOUT THE BRAIN SCIENCE LINED
THIS. SOME OF IT IS KOOIF COMBER RECOMMENDED GENERAL BRAIN SCIENCE YOUTH AND MATURING
BUT THERE ARE SPECIFIC BRAIN SCIENCE AND DEVELOPMENT ISSUES IN THE SECTION
OFFENDING CONTEXT THAT ARE APPLIED HERE AS WELL. HOW YOU GROW IN AND SEXUALLY
MATURE AND DPOE THROUGH PUBLIC TEE AND YOUR JUVENILE YOUR CHILD SEXUAL
CONDUCT DOES NOT FLAFRP WHAT YOU DO AS AN DULL YOU ARE NOT A PEDOPHILE OR A PRETD
TORE LIKE DULTHS MAYBE MORE LIKELY TO BE IF THEY COMMIT SEX OFFENSES I THINK THAT
AND ALSO TS YOUR QUESTION JUSTICE NORIEGA YOU ASKED ABOUT NEW JERSEY SPECIFIC
RESIST VITS MANY DATE I I DON'T THINK WE HAVE SPECIFIC NEW JERSEY DATA WE
FOLLOWED NEW JERSEY CHILDREN ARN LOOKED AT WITH CH REFENLDZED THE DATE IS BACKING
UP THE SCIENCE THAT WE KNOW ABOUT HOW CHILDREN DEVELOP AND THAT DOESN'T CHANGE
WHETHER YOU ARE IN NEW JERSEY OR CALIFORNIA OR ANYWHERE ELSE. SO THE
RECIDIVISM DATA MAYBE PRAUD EARN THAT BROADER THAN JUST NEW JERSEY BUT IT'S ALREADY
BACKING UP IT IS A SECONDARY COMMUNITY SUPERVISION FOR LIFE REINFORCING
MR. QUINN SM ABOUT THE SOCIAL THE NEUROSCIENCE AND THE BRAIN IENT SCIENCE AND
THE DEVELOPMENT THAT WE HAVE ALREADY. JUSTICE WAINER APTER:
DOES IT MATTER FOR IERNS P EVER USUAL OH WHETHER THE REOFFENSE OCCURS WHEN THE
PERSON IS A JUVENILE OR ADULT. MICHAEL R. NOVECK: IT DOES NOT.
MY CLIENTS ARE W BROETS REOFFENDED AS ADULTS MY CLIENT REOFFENDED AS A JUCH.
BUT THE DALT AN FROM DOCTOR CALDWELL WHICH IS WHAT IOWAS ABOUT TO GET INTO DOES
NOT DISTINGUISH BETWEEN A SUBSEQUENT OFFENSE AS A CHILD AND A SUBSEQUENT
OFFENSE AS ADULT. JUSTICE WAINER APTER: EVERYTHING YOU WERE
TALKING ABOUT ABOUT JUVENILES BEING DIFFERENT AND THEIR BRAINS STIFRL DEVELOPING
THAT IS NOT TRUE OF ADULT. MICHAEL R. NOVECK: RIGHT. SO IF YOU
ABOUT YOU IF YOUR SUBSEQUENT OFFENSE NOT IS NON SEXUAL AS AE ADULT THAT
DOESN'T EFFECT IF YOUR INITIAL OFFENSE WAS AN AN DULTH OR YOU HAVE A SUBSEQUENT
ADULT SEX OFFENSE WHICH PUTS YOU IN THE ADULT MEGAN'S LAW KONL TEBLG THAT
IS A DIFFERENT STORY FRM BUT THE ISSUE IS IF WE ARE LOOKING PATD PAT WHATS DID
IN A MEAN THAT IS A DIFFERENT STORY. MICHAEL R. NOVECK: SO
IF YOU ARE HAVE A CHILD SEX OFFENSE. JUSTICE PATTERSON: I
UNDERSTAND ARE YOU SAYING THAT THE DATA IS DIFFERENT. MICHAEL R.
NOVECK: THE DATA ARE DIFFERENT WHEN YOU GET FLOO PEJ WHO COMMIT THE VERY VERY, VERY
FEW PEOPLE WHO COMMIT A CHILD SEX OFFENSE AND DULTD SEX OFFENSE BUT IT IS
A COMPLETELY DIFFERENT LEGAL SCHEME THAT YOU ARE SUBJECT FO BECAUSE YOU ARE SUBJECT
TO THE ADULT MEGAN'S LAW LEGAL SCHEME AT THAT POINT. RIGHT? SO OUR ARGUMENT
WOULDN'T EFFECT THAT. CHIEF JUSTICE RABNER: WHAT SIKD OFFENSE IS
A SEXUAL OFFENSE COMMITTED WHILE THE PERSON IS STILL A JUVENILE.
MICHAEL R. NOVECK: NOW YOU ARE IN THE SAME LAND AS WE ARE AND THAT'S EXACTLY THE
QUESTION THAT THE COLUMN SUPREME COURT CONSIDERS IN THE T B CASE THE COLUMN
SUPREME COURT SAID IN THAT STATES YOU WERE ONLY SUBJECT TO LIFETIME REGISTRATION
IF YOU HAD TWO JUVENILE SEX OFFENSES AND IT IS COURT FELD THAT UND COUNSEL
STOONLSAL SO THE SAME LAW APPLIES. CHIEF JUSTICE RABNER: WHAT DOES
THE DATA SHOW. MICHAEL R. NOVECK: THE DATA ARE THAT
CHILDREN WHO REOFFEND SEXUALLY GENERALLY DO SO WITHIN THE FIRST 36 MONTHS AND THEN
THEY STILL DESIST IN THE FUTURE. CHIEF JUSTICE RABNER: EVEN
IF THE SEK OFFENSE IS A SEXUAL OFFENSE. MICHAEL R. NOVECK:
THAT'S TRUE YES. IF YOU XHILT ADULT SAKTS OFFENSE AGAINST AGAIN YOU ARE IN A
DIFFERENT CATEGORY BUT YOU ARE SRNL TO THE ADULT MEGAN'S LAW STATUTE IF WE ARE TALKING
ABOUT CHILDREN, THEN YOU ARE STILL KIEFR IN OUR CATEGORY. JUSTICE
PATTERSON: WHEN YOU SATS SAY IT IS A DIFFERENT LEGAL CONSTRUCT, WHAT IS THE DATA
SAY ARE YOU SAYING THAT THERE IS -- THAT THE DATA SHOWS WHAT DOES THE DATA
SHOW AS TO A RISK OF SOMEONE WHO COMMITTED A SEXUAL OFFENSE WHILE A JUVENILE AND
THEN COMMITS ANOTHER SEXUAL OFFENSE WHILE ADULT? MICHAEL R.
NOVECK: THROWS PEOPLE ARE IN KIEFRT ADULT SECTION OFFENDER CATEGORY AND THAT'S
A DIFFERENT SCHEME. JUSTICE PATTERSON: I DPET THAT YOU ARE
PRESENTING DATA TO US. WHAT DOES THE DATA SAY ABOUT THAT CATEGORY?
MICHAEL R. NOVECK: SO I THINK IT DATA SAYS ABOUT THAT CATEGORY THAT YOU
THEN GO LOOK AT THE ADULT SECTION OFFENDER DATA. THE DATA THAT WE ARE LOOKING
AT #57B9 CLASS OF PEOPLE WE ARE TALKING ABOUT. JUSTICE PATTERSON:
I ASKED YOU A SZEMPLE PAROLE INELIGIBILITY QUESTION IS THERE A HIFSHG HIGHER RISK
OF FOR REOFFENSE FOR PEOPLE IN THAT CATEGORY AS THERE IS FOR FEM WHO HAVE SCOMBLITED
A SEXUAL OFFENSE WHILE A JUVENILE BUT HAVE NOT HAD A SECOND SEXUAL OFFENSE?
MICHAEL R. NOVECK: SURE I WOULD ABSOLUTELY THINK SO. BUT
THAT'S NOT THE CATEGORY OF SFEM WE ARE TALK CAN ABOUT. JUSTICE
PATTERSON: I UNDERSTAND I UNDERSTAND I AM JUST TRYING TO UNDERSTAND BECAUSE YOU
SAY. MICHAEL R. NOVECK: I UNDERSTAND I JUST DWRANT
TO MAKE SURE I AM CLEAR ABOUT WHAT OUR ARGUMENT IS WE HAVE BEEN NARLY FOEBLGSED
ONLY THE ISSUE OF CHILD WHO COMPLITS A SEX OFFENSE AND THEN COMMITS A NON SEXUAL
SUBSEQUENT OFFENSE LIKE SHOPLIFTING OR FAILURE TO REGISTER AND THEN THE STATE ARGUES
THAT YOU ARE SUBJECT TO MEGAN'S LAW FOR THE REST OF YOUR LIFE.
JUSTICE PIERRE-LOUIS: THE DATA THAT YOU DISCUSSED AT THE BEGINNING OF YOUR ARGUMENT
WITH REGARD TO THE STUDIES BEING ALMOST ONE HUNDRED PUBLIC EMPLOYMENT
RETIREMENT SYSTEM ON YOUR SIDE OF THE ARGUMENT REGARDING RECIDIVISM RATES FOR
JUVENILES THAT DOES NOT INCLUDE JUVENILES WHO LATER AS ADULTS COMMITTED A
SEX OFFENSE. MICHAEL R. NOVECK: RIGHT I MEAN I THINK PART
OF IT IS THE RECIDIVISM MANY RATE IS SOMETHING LIKE 2.75 PUBLIC EMPLOYMENT RETIREMENT
SYSTEM. SO YEAH THERE IS SOME SMALL VERY SMALL NUMBER OF CHILDREN WHO WILL
COMMIT A JUVENILE SEX OFFENSE AND THEN A SUBSEQUENT ADULT SAKTS OFFENSE. BUT PART
OF THE ISSUE IS THAT IS THAT CATEGORY IS SO SMALL AND WHAT THE STATE IS
SEEKING TO DO THE STATUTE IS SO OVER BROAD THAT IT SAYS ANY JUVENILE SAKTS OFFENSE
AND ANY SUBSEQUENT OFFENSE THEREFORE MEGAN'S LAW FOR THE REST OF YOUR
LIEFR. THAT'S THE BREADTH OF THE STATUTE THAT WE ARE OPPOSE THAT GO WE ARE SAYING
THE DATA DON'T SUPPORT. JUSTICE WAINER APTER: FOR SOME OF THE T
.75 PUBLIC EMPLOYMENT RETIREMENT SYSTEM WERE THEY SJTD TO RENL STRAGS
REQUIREMENTS LIEBLG THE ONE AT ISSUE HERE AND IS IT POSSIBLE THAT THE RISK 68
RECIDIVISM IS SO LOW PRECISELY BECAUSE OF THE RENL STRAGS REQUIREMENTS.
MICHAEL R. NOVECK: THE DATA SUGGESTS EXACTLY THE OPPOSITE.
THE DATA SUGGESTS THAT CHILDREN WHO ARE SUBJECT TO REGISTRATION REQUIREMENTS REOFFEND
MORE THAN CHILDREN WHO ARE NOT AMONG THE CLASS OF JUVENILE SEX OFFENDERS.
FAT PAT THAT IS THE CLICK EVEN OR THE FOR EXAMPLE IF SOMEONE IS HAS A REGISTRATION
REQUIREMENT IMPOSED ON THEM THEY MAY HAVE COMMITTED MORE SERIOUS OFFENSE
THAN SOMEONE WHO IS NOT. MICHAEL R. NOVECK: IT COULD BE BUT IN
NEW JERSEY THAT IS NOT THE CASE. IN NEW JERSEY EVERYBODY WHO COMMITS A
JUVENILE SEX OFFENSE IS SNL TO REGISTRATION PRESUMPTIVE LIFETIME
REGISTRATION. I THINK IT BY WAY. JUSTICE PATTERSON: YOU ARE
TALKING ABOUT NATIONAL DATA RIGHT AND MANY STATES DON'T IMPOSE THE SAME
REQUIREMENTS ON JUVENILES. CAN WE REALLY SAY THAT AS A SCIENTIFIC CONCLUSION THAT
THE RISK THAT THE PERSON REPRESENTS AS OPPOSED TO THE RISK THAT MAYBE
MINIMIZED BY A LEGAL RESTRICTION ON THEM IS REALLY AT ISSUE. MICHAEL
R. NOVECK: YEAH IT'S CORRELATION AND NOT CAUSATION I THINK IS YOUR POIN. AND
I AGREE WITH THAT BUT THE ISSUE IS THAT THE STATUTE AT ISSUE HERE DOESN'T
MAKE ANY OF THOSE FINE DIFFICULTIES STINTHSS YOU COULD IMAGINE A STATUTE THAT IS
BETTER WRITTEN THAT'S LIMITED TO CERTAIN SECTION OFFENSES THAT IS LINLTDED
TO CERTAIN SUBSEQUENT OFFENSES THAT IS NOT WHAT IS BEFORE THE COURT RIGHT NOW #6R78
WHAT IS BEFORE THE COURT IS A STUART THAT IS BROADER THAN WHAT OTHER COURTS
HAVE STRUCK DOWN. JUSTICE PATTERSON: ARE WE IN A POSITION
SITTING HERE TODAY TO UNDERSTAND WHETHER THE DATA IS ^ CON ^ CONNECTICUT FOUNDED
BY SUCH THINGS AS WHAT LIMITATIONS THAT AN INDIVIDUAL HAS BEEN PUT UNDER THAT
MAY IN FACT REDUCE THE RISK OF RECIDIVISM. Q. DO YOU SEE WHAT I AM
SAYING? MICHAEL R. NOVECK: YEAH. JUSTICE PATTERSON:
YOU ARE ASKING US TO DECLARE A STATUTE UNCONSTITUTIONALAL ON THE BASIS OF
DATA AND YET ONE CAN CERTAINLY IMAGINE MANY FACTORS, OBVIOUSLY EP DEEM OL GEE IT
IS ALL ABOUT TRYING TO FIGURE OUT WHAT CAUSE WHY ARE THE DISTINCTIONS VALID IN
THE TWO GROUPT GROUPS AND WHAT MAYBE AFFECTING THE RESULTS IN EITHER OF
THOSE TWO GROUPS. IT IS E NORNLSLY PEOPLE DEVOTE THEIR LIEFRS TO TRYING TO FIGURE
ALL THIS OUT. MICHAEL R. NOVECK: SURE SURE AND WE TALK TO
THE EXPERTS WHO DEVOTED THEIR LIEFRPS TO TELL US WHO HAVE TOLD US THE DATA IS ALL
IN OUR GREKS NUMBER ONE. NUMBER TWO IS THAT THE EXTENT THE COURTS REVIEW IS
STRUGGLING WITH WHAT'S ON THE OTHER SIDE, THAT'S A FUNCTION OF HOW THE STATE HAS
RESPONDED TO THE ARGUMENT. AND I HAVE LITIGATED TWO OF THESE CASES MYSELF
AND THE SAME THING HAND IN THIS CASE, THE STALT DOESN'T COME BACK AND SAY ACTUALLY
THERE IS ^ CON ^ CONNECTICUT FOUNDING DATA YOUR HONOR ACTUALLY IT IS NOT
THAT CLEAR YOUR HONOR THEY JUST POINT TO THE STAULT AND SAY RELY ON THE STATUTE
#6R78 SO IF THERE IS OTHER STUFF OUT THERE WEETD' WELCOME THE OPPORTUNITY TO SEE
IT AN THAN REBUT IT BUT WE CREATED A RECORD. JUSTICE PATTERSON:
FROM THE POINT OF VIEW FROM A COURTS POINT OF VIEW YOU AN THAN YOUR COLLEAGUES
ARE SAYING WE SHOULD WRITE AN OPINION THAT STRIKES DOWN THIS STATUTE WHICH
HAS BEEN IN NECK FOR 30 YEARS AND STRIKE DOWN PARTS OF THE STATUTE BASED UPON DATA
THAT HAS CERTAIN NUMBERS IN IT WITHOUT ANY COMMUNITY SUPERVISION FOR LIFE
UNDERSTANDING AS TO WHAT THAT DATA MEANS BECAUSE THE LEGISLATURE HAS MADE A
DETERMINATION THAT THE PROTECTION OF VICTIMS OF SEX CRIMES IS AN STRARD NAR
LY IMPORTANT GOVERNMENTAL INTEREST AND THAT IT NEEDS TO BE ADDRESSED THAT'S THE
THEME OF DOE VERSUS IMPORTANT IT IS AS IT IS OF THE LETHD I HAVE HISTORY OF THE
STATUTE. AND YET WHAT WE'RE BEING PRESENTED WITH IS DATA AND WITH GREAT RESPECT
MR. NOVECK YOU ARE TELLING US THAT AN EXPERT TOLD YOU THE DATA IS ALL ONLY
YOUR SIDE, BUT THAT SEEMS TO BE A PRETTY THIN READ TO DECLARE A STATUTE UNCONSTITUTIONAL
AL. AND I AM SURE YOU ARE TELLING US EXACTLY WHAT AN EXPERT OUT THERE HAS
SAID TO YOU IN A MEETING OR A PHONE CALL OR WHATEVER. BUT THAT'S A LOT TO ASK OF
A COURT TO STRIKE DOWN A STATUTE BECAUSE OF A CONVERSATION THAT HAPPENED BETWEEN
DEFENSE COUNSEL AND I'M SURE YOUR ADVERSARY WASN'T ON IT, AND AN EXPERT
WHO IS UNIDENTIFIED. MICHAEL R. NOVECK: RIGHT. SO I JUDGE US
WHAT THAN TO MAKE A KUNL THINTHS CLEAR THE DATA IS 1 PIECE OF THE PUS WILL RIGHT?
NO SON IS SAYING THE DATA IS THE END OF THE STORY RIGHT? I WAS GOING THROUGH
I WENT THROUGH THE NEUROSCIENCE, I WAS GOING INTO THE DATA I WAS GEEG TO GO INTO
OTHER COURT DECISIONS IT DATA IS 1 PIECE OF THE PUS WILL I AGREE IT IS AN
IMPORTANT PIECE OF THE PUZZLE BUT IF THE STATE WANTS TO CROSS-EXAMINE OUR EXPERTS
AND THIS IS STUFF THAT WE SUBMITTED TO THE COURT IN OUR CASES, SO THEY HAD
ALL THAT INFORMATION AVAILABLE TO THEM, WE MADE THE EXPERTS AVAILABLE FOR
CROSS-EXAMINATION, THAT WAS DECLINE SHG WE NOIFRD THE ATTORNEY GENERAL WHEN I FILED
CHALLENGES TO BOTH OF MINE I NOEFRD THE ATTORNEY JENS OFFICE WHEN WE FILED
THE CLANL THE ATTORNEYS JENS OFFICE DID NOT COME INTO TOO THE CASE THE ATTORNEY
JENS OFFICE ISN'T AT THE TABLE IN THIS CASE TODAY SO THE OPPORTUNITY HAS
BEEN THERE FOR THE STATE AND THE LEGISLATURE AMICUS FOR THEM TO COME BACK AND
SAY EXACTLY WHAT YOU ARE SAYING THERE IS PROBLEMS WITH THE DATA. WE CREATED
A RECORD AND WE ARE ASKING THE COURT TO REVIEW THAT RECORD. THE COURT SHOULDN'T
^ IGNORE THE ^ IGNORE IT RECORD BECAUSE THERE IS SOME HYPOTHETICAL OTHER
RECORD OUT THERE. THAT'S MY POINT. I DON'T KNOW IN THAT #12307BDED TO THE QUESTION
OR NOT BUT JUST TO GO THROUGH THE DATA A LITTLE BIT. THE RECIDIVISM RATE
IS BELOW 3 PUBLIC EMPLOYMENT RETIREMENT SYSTEM FOR CHILDREN. THAT RECIDIVISM RATE
DOESN'T CHAJ BASED ON WHETHER YOU COMMIT A SUBSEQUENT NON SEXUAL OFFENSE
WHICH MANY KRIRN DO E SFEGSZLY AS THEY ARE MATURING INTO ADULT HOOD.
THE MOST REENTS SUBSTITUTE I FROM DOCTOR CALL WELL THE ANL OF REDEJ SHUN STUDY WE
CITED IN OUR BRIEF THIS PARTICULAR POINT IS MADE AT 0 P DEE A 37 IS THAT
CHILDREN WHO COMMITTED JUVENILE SEX OFFENSES WERE ACTUALLY LESS LIKELY TO COMMIT
A SUBSEQUENT DULTD SEX OFFENSE BY AGE 22 THAN SOME WOULD THAN WHO IS A JUDZ
INDICATED DELINQUENT OF ANOTHER FERNLTS FRM SO ^ CURVE ^ COULD I HAVE ACTUALLY SWISH
EAST A JUTED DELINQUENT SOMETHING OTHER THAN SECTION OFFENSE BY THE TIME
YOU REACH AGE 22 YOU ARE IN OTHER LIKELY TO COMMIT A SAEKS OFFENSE THEN THE PERSON
WHO COMMITTED THE JUVENILE SEBLGS OFFENSE. JUSTICE PATTERSON:
I WILL ASK YOU A PROCEDURAL QUESTION ON WHAT YOU JUST SAID TRIGGERED THAT
WITH ME. YOUR COLLEAGUE MENTHSED J L G AND THE CREDITS AS SEATING AND OBVIOUSLY
THERE ARE OTHER SETTINGS AS WELL WITH EVIDENCE. A. NORMAL IN A 702-CASE
THERE IS A PROCESS THAT HAPPENS WHEN THERE IS A CHALLENGE TO EXPERT EVIDENCE
WHICH IS WHAT HAPPENED THERE, AND THERE IS A HEARING, AND THERE IS AN OPPORTUNITY
BY A TRIAL COURT TO MAKE A DETERMINATION AS TO THE KRENLT OF EXPERTS AND GET SOME
TIEVENLS QUITE DEEPLY INTO THE SCIENCE. WE DON'T HAVE THAT HERE. WE HAVE
A CONSTITUTIONAL CHALLENGE THAT I WOULD -- I SEE AS VERY SUBSTANTIALLY RELIANT
ON SCIENCE AND EXPERTS IN ESSENCE. CAN YOU TELL US, CAN YOU GIVE US AN
EXAMPLE OF A DECISION BY THIS COURT STRIKING DOWN A STATUTE BASED UPON NOT ON A
HEARING, NOT ON A FACTUAL RECORD WITH RESPECT TO THE ACTUAL SCIENCE BUT
ON A REPRESENTATION, OBVIOUSLY A LOT OF WORKS INTO THIS BUT A REPRESENTATION BY
COUNSEL THAT WE EVER LOOKED AT THE SIGN IT AND THE SCIENCE SUPPORTS OUR POSITION
ON THE LACK ON THE UNKONLS SUBSTITUTION ALT OF THE STATUTE WE ARE ASKING ABOUT PROCESS.
MICHAEL R. NOVECK: I UNDERSTAND THAT. JUSTICE
PATTERSON: BROWN VERSUS BOARD OF ED AND THAT HAD AS I UNDERSTAND THAT CASE THAT
HAD A FACT FINDING PROCESS. MICHAEL R. NOVECK: ON THE SESSION
SCIENCE IN BRUN I DON'T NECESSARILY THINK IT DID HAVE A FAK FIENTD WILL GO
BROTS EASY TLIT WLAS PENNSYLVANIA AM BUS BRIEF I WOULD AGREE THAT DOING WHAT WE
DID HERE WHICH WS SFLITING SOMETHING IN A MA'AM GUST FWREEFR IS A LITTLE
EXCEPTION RATS EARN A RULE IT IS UNIQUE BECAUSE WE TOOK RORTD THAT WE CREATED KNOW
OTHER LITIGATION AND TRIED TO BRING IT TO THE COURT. AND I THINK YOU HAVE GIVEN
A LITTLE BIT OF SHORT SLIFRT TO WHAT MR. MAYNARD DID. ACTION HE WASN'T TRIAL COUNSEL
WHAT TRIAL COUNSELOR DID IN THIS CASE THERE WAS A HAERLG THERE WAS AN EXPERT
WHO TEFRTD WHO WAS SUBJECT TO CROSS-EXAMINATION AND THE COURT HAS THAT
TRINT. JUSTICE PATTERSON: THAT IS ABOUT THE INDIVIDUALS RIFK
THAT EXPERT WAS. MICHAEL R. NOVECK: NO DOCTOR NOR BERTH
TESTIFIED ABOUT THE COUNTY JAIL WELL STUDY ONE OF THE CALL WELL STUD IT IS TALK
ABOUT THE 2016 STUDY THAT WAS AVAILABLE AT THE TIME WHEN HOO I HAD TIETD THE 2022
STUDY WAS I THINK MOEFRT DATED THE LAERG IN THIS CASE. BUT THE ISSUE IS THAT
WHEN I'VE WE SUBMIT EXPERT REPORTS THE MEGAN'S LAW PROCESS IS GENERALLY THANK YOU,
YOUR HONOR. INDICATED RIGHT YOU DON'T USUALLY HAVE AN EVIDENTIARY HEARING.
SO WHEN WOOEFR' SUBMITTED REPORTS IN OUR MEGAN'S LAW CASES, THE STATE HAS ESSENTIALLY
WAIVED THE HEARING. SO I DON'T KNOW WHAT YOU WANT YOUR HONOR WANTS US TO
DO. JUSTICE PATTERSON: I AM KNOW THE SAYING I WANT TO YOU
DO ANYTHING IN PARTICULAR BUT I AM ASKING YOU BECAUSE THERE ISN'T QUITE A MATCH
WITH THE EXPERT DETERMINATIONS, WHICH WENT THROUGH A PROCESS THAT IS ACCEPTED
UNDER THE EVIDENCE RULE. IS THERE A PRECEDENT FOR A STUDY THAT ARE DISCUSSED IN
EITHER A MIDDLESEX COUNTY MUST BRIEF OR A PARTIES' BRIEF BEING THE BASIS TO
STRIKE DOWN A STATUTE WHICH IS A VERY BIG DEAL. MICHAEL R. NOVECK:
BROWN IT IS PROBABLY THE CLOSEST COMBAM TO THAT. I AGREE WITH YOU IT IS NOT THE
ORDINARY COURSE BUT WE'VE CREATED THE RECORD UNTIL THE CASES THAT WE HAVE HAD IN
THE MEGAN'S LAW ^ CON ^ CONNECTICUT TECH THAT THESE ISSUES COME UP IN THAT THE
COURT CREATED A CONSTRUCT WHERE THE EVIDENCE IS USUALLY A PAPER RECORD. SO WE'VE
DONE WHAT WE'VE AVAILED OURSELVES OF THE PROCEDURES THAT ARE OUT THERE. AND
IF THERE ARE OTHER PROCEDURES OUT THERE UNION COUNTY THE COURT THINKS THAT THE
RORTD IN THIS CASE IS NOT SUFFICIENT I SUBMIT THAT IT IS BUT IF THE COURT
THINK IT'S NOT WE JUST ASK FOR AN UNDERSTANDING EVER WHAT IT IS THAT WE ARE SUPPOSED
TO DO. BUT AGAIN, THIS IS A CASE WHERE THIS IS NOT A CASE WHERE THE STATE CAME
IN I DON'T EVEN READ THEIR BRIEF IN THIS CASE TO SAY PLEASE SEND THIS BACK
FOR AN EVIDENTIARY HEARING. THEY DON'T THERE IT IS NOTHING ELSE THERE. THERE
IS NOTHING WE HAVE SUBMITTED THE EXPERT TESTIMONY THAT IS THERE THE SCIENCE
THAT IS THERE AND OUR CERTIFICATIONS IN MY CASES HAVE ALL SAID THERE IS THE DATA,
RIGHT? SO IF THERE WAS SOME OBJECTION MADE BY THE OTHER SIDE BY THE STATE
THE ATTORNEY GENERAL EXCELLENT ATTORNEYS ON THEIR SIDE THAT SAYS SOMETHING ELGS
IS OUT THERE AND COURT YOU CAN'T RULE ON THIS ARE ORD I THIS I YOU ARE WOULD BE
IN A DIRN POSITION. CHIEF JUSTICE RABNER: MR. NOVECK I THINK
WHEE NEED TO MOVE THROUGH THE BALANCE OF YOUR ARGUMENT. MICHAEL R.
NOVECK: I WHAT THAN THE TO GET BACK TO SOME OF OUR ISSUES I WANT TO TALK ABOUT.
CHIEF JUSTICE RABNER: WE ARE CLOTHESING IN ON A HAFR HOUR
YOU ARE PROBABLY NOT GOING TO BE ABLE TO GET TO THIFRG YOU HAVE BEHIND UP IDENTIFY
THE FEW REMAINING POINTS YOU HAVE. MICHAEL R. NOVECK: I WAS
GOING TO TALK BREEFRL ABOUT THE LAW. A. LENGTHY UNREVIEW ABL KWENLS
EAST FOR CLIRN AND MATED KRCHLTH KFRMENT AND MATS COMBER, IT'S AND MATED OTHER
COURTS, CREDIT. IN OHIO JUDGE ABOUT IN PENNSYLVANIA TEE BE IN COLORADO TOO H IN
IOWA WHICH UNHELL ITS JUVENILE REGISTRATION STATUTE ONLY BECAUSE YOU
COULD TERMINATE THE RENL TRA I UNUNTIL THE TIME OF DISPOSITION. I DO WANT TO MAKE
THIS POIN. THE PURPOSE OF MEGAN'S LAW IS THAT ESPECIALLY FOR ONE IS THAT LAWN
HAS AKD FACT? IS NOT A STACK OF A STACK OF PEOPLE UNSOLVED SEX CRIME IN
GLOSS DMROE INTERPRETER UNI COUNTY WANTS TO GO LOOK AT THE RENL TRALT THEY PICK
UP THE STACK OF PAPER RIGHT THEY ARE GOING TO LOOK THROUGH IT. IF YOU HAVE
A BUNCH OF JUVENILE FENDERS WHO DON'T POSE A RIFRNG TO THE PUBL THIS IS USELESS.
OUR POSITION HELPS LAW ENFORCEMENT BY NARROWING THE LIST OF PEOPLE WHO
ARE ACTUALLY GOING TO BE INVESTIGATED WHO ARE WORTH INVESTIGATING WHEN A SEX CRIME
HAJTS THAT POINT WAS MADE IN POUL V KEEL THE SOUTH CAROLINA CASE.
IOWA THAN TO TALK QUICKLY ABOUT REMEDIES AND IOWA THAN TO CLOSE ABOUT OUR CLIENTS.
SO OUR PRIMARY REMEDY THAT WE EVER ASKED FOR THE 0 PED IS THE
RENL DOO E IN OTHER CASE WHICH IS LOOK AT THE PLAIN LANGUAGE OF THE STATUTE AND
ALL TERRIBLE TIFRL THESE CONSTITUTIONAL ISSUES ARE REALLY ABOUT THE DOCTRINE
OF CONSTITUTIONAL AVOIDANCE AND THE ATTORNEY I THINK MADE AN IMPORTANT CONCESSION
WHEN IT WAS ARGIROPOULOSING HERE IN THE LAST CASE. I WROTE IT DOWN, THE
AFRMENT G SAID THE PLAIN LANGUAGE ARTHD DOESN'T GET IS ALL THE WAY THERE ON THEIR
POSITION. SO IF THEY'RE CONCEDE TLG IS AM ABOUT GUT ANY AMBIGUITY IS RESOLVED
IN FAVOR OF A VOIDING THE CONSTITUTIONAL QUESTION THAT IS POSED IN THIS CASE.
I THINK. JUSTICE WAINER APTER: I WANT TO MAKE SURE I
UNDERSTAND. ARE YOU SAYING THAT IN WE DECIDE THE PRIOR INDICATES IN THE RETHS'
FAIR THEN THERE IS NO LONGER ANY LIFE CONSTITUTIONAL CHALLENGE?
MICHAEL R. NOVECK: THAT'S CORRECT. WHAT WE WOULD ASK THE COURT TO DO IS SET
SOME CONSTITUTIONAL BOUND TREES FOR THE LEG YOU ARE TO FOLLOW SHOULD THE LEG
YOU ARE GO FWAK TO THE DRAWING BOARD BUT YES IF YOU ADOPT THE PLAIN LANGUAGE ARGUMENT
IN ARE H AND T.L. BOATS OF THE PARDON AVOID THE KONLAL ISSUE THERE IS NO
NEED TO REEFRNL SOME OF THE TLORN I CONSTITUTIONAL FLISHGS IN THIS COMBATS WE WOULD
JUST ASK YOU TO SET A LINE SOME BOUNDARY SOME GIEPD AND ALSO AS TO WHAT IT IS
CONSTITUTIONAL AND WHAT IS NOT BECAUSE THE WEIGHTY CONSTITUTIONAL ISSUES
HERE WOULD COMMUNITY SUPERVISION FOR LIFE IT WOULD COMMUNITY SUPERVISION FOR LIFE
BE A PIR I CAN ADVICE FRI IF YOU SAID IN THE LAST CASE WELL YOU DIDN'T SAY
A JUD LIGS EVER DLIJ AND F THE CASE DELINQUENCY I INTO THAT LANGUAGE AND THEN
WLEEFR TO COME BACK THROUGH AND DOO THIS WHOLE PROCESS AGAIN SO SET SOME
BROUND DREES TLAS HE WHAT WREE WOULD ASK YOU TO DO. LET ME
CLOSE BY TALKING ABOUT. CHIEF JUSTICE RABNER: IT IS I EMAIL LUN
USUAL WILL AN FOR THIS COURT TO TRAES KONTSZAL ISSUES IF THE STATUTORY
QUESTION RESOFRTS THEM WOULD YOU AGREE. MICHAEL R. NOVECK:
YES. AND I DON'T KNOW THAT YOU NIED TO KIEFR GO THROUGH THE WHOLE
CONSTITUTIONAL ANALYSIS IF YOU AGREE WITH US IN THE OER CASE THAT THE STATUTE IS
CLEAR. BUT I THINK HIGHLIGHTING THAT THERE ARE CONSTITUTIONAL ISSUES AT
STAKE IF YOU IMPOSE LIFETIME REGISTRATION ON JUVENILES AND SETTING SOME BOUNDARIES
WOULD BE #4E6R8 FOR THE LEGISLATURE AS THE PROPERS EAST TINTS TO UNFOLD.
JUSTICE PATTERSON: THAT WOULD BE IN THE OTHER CASE ROOEFRPG CONSTITUTIONAL
ISSUE THAT WOULD NOT BE PRESENT RIGHT. MICHAEL R. NOVECK:
WELL IF THE COLUMN DRINL MUCH CONSTITUTION A -- A VOID ANLSZ INFORMS THE COURTS
SDIEGS IT WOULD BE A LIEFR ISSUE IN THAT CASE IF THE COURT REALLY SAYS THE STATUTE
IS CLEAR AND WE ARE NOT GOING TO TALK ABOUT CONSTITUTIONAL ISSUES AT ALL
THEN SO BE IT WE JUST THINK SOME GUIDANCE WOULD BE HEFRL TO THE LEG YOU ARE AS THE
STATUTE CONTINUES TO REVOLVER IFRMG UNDERSTOOD PLEASING AHEAD.
MICHAEL R. NOVECK: I WANTED TO CLOSE JUST BY TALKING ABOUT OUR CLIENTS STORIES
ONE MORE TIME. J UFRMENT SUBMITTED A JUVENILE SECTION OFFENSE
HE THEN STOLE LEG GO FROM A BRAD LEETS DEPARTMENT STORE SO FOR THAT HE WAS REQUIRED
REGISTERS FOR 26 YEARS BEFORE OBTAINING TERMINATION ON VERY NARROW GROUNDS
THAT DON'T APPLY IN THIS CASE. RFRMENT W AFTER HER JUVENILE SEX OFFENSE
STOLE CLOTHES AND JEWELRY FROM THE LIVINGSTON MALL FOR THAT SHE HAS NOW
BEEN REQUIRED TO REGISTER FOR LICENSE 30 YEARS WITH NO END IN STALT. B Y AFTER
HIS JUVENILE SECTION OFFENSE FAILED TO REGISTER ONE TIME WHILE HE WAS HOME
LESS AND LIVING IN A MOTEL. FOR THAT HE'S BEEN REQUIRED TO RENL INTERPRETER FOR
ALMOST 20 YEARS AGAIN WITH NO END IN SITE. THE IR REBIT AN
PRESURM SHUN OF LIFETIME MEGAN'S LAW FOR THESE CLIENTS AND OTHERS FOR NIS TAKES
THEY NAD AS CLIRN AND MINOR SKWENTS NON SEXUAL OFFENSES CANNOT BE SPOERTDED
BY SOCIAL SCIENCE THE COURTS JURORS BRIENLTS OR THE RECORD IN THIS CASE JUST AS
THE IR REBITS ABL PRESUNL AT C WAS NOT SPOERDED IN THAT CASE OUR CLIERN
HAVE SUFFERED AND CONTINUE TO SUFFER FROM THE SHAME TRAUNL HA AND COLLATERAL LEGAL
KWENLS EAST OF MEGAN'S LAW AND WE ASK THE COURT TO PLEASE ISSUE A HOLDING
THAT GIVES THE CHILDREN A CHANCE AN OPPORTUNITY TO TERMINATE THEIR MEGAN'S LAW
REGISTRATION. THANK YOU. CHIEF JUSTICE RABNER: THANK YOU
COUNSELOR. PROFESSOR COHEN. PROFESSOR COHEN. CHIEF
JUSTICE RABNER: THANK YOU, COUNSEL. PROFESSOR COHEN. PROFESSOR LAURA
COHEN: GOOD AFTERNOON, YOUR HONORS MAY IT PLEASE THE COURT. I THINK MR. NOVECK COVERED
MOST OF WHAT I WAS HOPING TO ADDRESS WITH YOU. I WOULD LIKE TO ANSWER A COUPLE
OF QUESTIONS THAT CAME UP IN THE EARLIER ARGUMENT AND MAKE A COUPLE OF BRIEF POINTS.
FIRST, I THINK ALL OF US AGREE THAT THIS CASE IS ABOUT THE SPECIFIC IMPLICATIONS
OF 2C:7-2 F CATEGORICAL BAR TO REMOVAL FROM THE REGISTRY AS IT APPLIES TO YOUTH; THAT'S
WHAT THE RECORD IS ABOUT; THAT WAS BRIEFED; THAT WAS THE ISSUE BEFORE THE COURT.
WITH REGARD TO THE QUESTION THAT I THINK YOU ASKED CHIEF JUSTICE IN THE LAST ARGUMENT WITH
REGARD TO WHETHER OR NOT, YES, IF THEY ARE SENTENCED TO A TERM OF INCARCERATION, THEY
ABSOLUTELY ARE INCARCERATED. THEY ARE INCARCERATED UN 2C:. THE PLACE AT WHICH THEY
ARE HOUSED MAY INITIALLY BE WITH THE JUVENILE JUSTICE COMMISSION AND WE KNOW THAT THEY ARE
DEFINED AS JUVENILE YOUTH FACILITIES UNDER THE LAW. HOWEVER, THEY HAVE A CONVICTION.
SO SUBSECTION F REFERS TO CONVICTION OR RELEASE FROM A CORRECTIONAL FACILITY. MOST OF
THOSE YOUTH, UNLESS THEY ARE SENTENCED TO VERY SHORT SENTENCES ARE GOING TO BE TRANSFERRED
TO THE DEPARTMENT OF CORRECTIONS AS EARLY AS THEIR 18TH BERTH DAY. IT COULD BE AS LATE
AS THEIR 25TH BIRTHDAY BUT IF THEY ARE SERVING ANY KIND OF LENGTHY SENTENCE THEY WILL
MORE LIKELY BE IN THE DEPARTMENT OF KREKZ AN RELEASED FROM THE DEPARTMENT OF CORRECTIONS.
CHIEF JUSTICE RABNER: IS THAT PURSUANT TO THE STATUTORY TUT IN 2 A.
PROFESSOR LAURA COHEN: THAT IS PURSUANT TO THE 2015, AMENDMENTS TO THE WAIVER LAW.
I ALSO WANT TO POENT OUT AND I THINK THIS GOES TO YOUR QUESTION, JUSTICE WAINER
APTER ABOUT WHETHER OR NOT THERE IS PUN NESH MENT EMBEDDED IN THIS. I THINK
THERE ARE ONLY TWO POSSIBLE INTERPRETATION OR OPERATIONS OF SUBSECTION F AS THEY APPLY
TO CHILDREN -- AS IT APPLIES TO CHILDREN. THE FIRST IS THAT IT CREATES AS MY COLLEAGUE
HAVE SAID AN IR REBUTTAL ASSUMPTION OF DANGEROUSNESS THAT THERE IS NO WAY FOR A
YOUNG PERSON TO REFUSE EVEN WITH THE BENEFIT OF A PUBLIC SAFETY ANALYSIS. WE KNOW FROM
THIS COURT'S JURISPRUDENCE, FROM THE SUPREME COURT'S JURISPRUDENCE ARE LOOKED AT WITH
GREAT SIN NICK SIFRM, THAT IS THE. THE ONLY OTHER OTHER POSSIBLE OPERATION
OF SUBSECTION F IS PUNISHMENT. AND IF IT IS PUNISHMENT, IT IS IN VIOLATION OF WHAT DOE
ANNOUNCED TO BE AND RECOGNIZED TO BE THE PURPOSE, THE FUNDAMENTAL PURPOSE OF REGISTRATION
AND THE OBVIOUSLY THE LEGISLATIVE INTENT OF THE REGISTRATION SCREAM. EITHER
OF THESE APPLICATIONS, EITHER OF THESE OPERATIONS FAIL ON CONSTITUTIONAL SCRUTINY.
WITH REGARD TO CONCERNS ABOUT SUBSEQUENT RECIDIVISM, OBVIOUSLY ALL OF THOSE ARE
ADDRESSED THROUGH THE PUBLIC SAFETY ASSESSMENT, WHICH IS GOING TO BE PART OF ANY POSSIBLE
REMOVAL FROM THE REGISTRY FOR ANY ONE REGARDLESS OF WHETHER -- OF WHEN THAT PETITION FOR
THE REMOVAL OCCURS AND HOW LONG AFTER AN ADJUDICATION OR RELEASE FROM CUSTODY THAT
MIGHT OCCUR. WITH REGARD TO THE QUESTION ABOUT THE RECORD AND I THINK THIS
WAS YOUR QUESTION, JUSTICE PATTERSON, C.K., WHICH, AS YOU ALL KNOW FAR BETTER THAN I DO
WAS JUST DECIDED SIX YEARS AGO, CONTAINED A ROBUST SUMMARY OF THE EVIDENCE THAT WAS
PRESENTED AT THE TRIAL COURT IN THAT CASE. AND, THEREFORE, IS PART OF THIS COURT'S
JURISPRUDENCE, AS IS THE SCIENCE WITH REGARD TO DEVELOPMENT IMMATURITY AND ITS IMPACT ON
CHILDREN'S DECISION MAKING THAT HAS MADE IT'S WAY INTO COMB MER AND SO MANY OTHER CASES
DECIDED BY THIS COURT. WITH REGARD TO THE C.K. RECORD, THAT SCIENCE REALLY
HASN'T CHANGED THAT MUCH EXCEPT THAT IT HAS FWOT TEN MORE CLEAR. AS MR. NOVECK
SAID, IT HAS FWOT TEN MORE I WILL LUS STRAT ACTIVE OF THE DESIST INSTANCE THAT OCCURS
AS CHILDREN PROGRESS THROUGH ADOLESCENCE AN CERTAINLY WHICH BECOMES COMPLETE, WHICH
BRINGS THEM TO NO GREATER RISK OF COMMITTING ANOTHER SEX OFFENSE THAN SOMEBODY IN THE
GENERAL POPULATION BY THE TIME THEY HIT AGE 22. ALSO, I POINT OUT COMB MER.
THIS WAS A TESTIMONIAL RECORD CREATED IN SOOUB BER, BUT WHEN KOEM MER CAME
BEFORE THIS COURT THERE WAS NO NEW FACTUAL RECORD THAT HAD BEEN CREATED. THE COMB MER
WAS REMEDIAL AND ADDRESSING EXACTLY THE PROBLEM THAT WE'RE WORRIED WOULD HAPPEN HERE,
A LEGISLATIVE ABANDONMENT, I SUPPOSE, BUT IN KOEM MER THIS COURT ANNOUNCED A NEW CONSTITUTIONAL
REMEDY THAT WAS NOT BASED ON A TRIAL RECORD IN THAT CASE, BUT INSTEAD ON THE ROBUST BODY
OF DEVELOPMENTAL SCIENCE THAT WE HAVE ALL RELIED ON REPEATEDLY AND THAT THIS COURT HAS
FULLY AND FULSOMELY EMBRACED. THANK YOU. CHIEF JUSTICE RABNER: MS.
HEFFRON. CLAUDE CAROLINE HEFFRON: MAY IT PLEASE THE COURT. I WILL
KEEP THIS BRIEF AS WE ARE IN THE FOURTH HOUR OF THESE COLLECTIVE CASES. I
WANT TO EMPHASIZE IN ADDITION TO RELYING ON ARGUMENTS MADE BY PREVIOUS COUNSEL AS WELL AS
MY OWN BRIEFS THAT THE PURPOSE OF MEGAN'S LAW, THE WHOLE SCHEME HINGES ON THE REMEDIAL
PURPOSE OF MEGAN'S LAW AN THE PURPOSE IS REMEDIAL TO PROTECT CHILDREN. AND THE PHRASE
TO PROTECT CHILDREN IS USED DOZENS OF TIMES IN THE DOE OPINION AND THAT PURPOSE NOT ONLY
WITH RESPECT TO THE 15 WREER BAR IS NOT ONLY NOT ACHIEVED AS PRIOR COUNSEL HAVE ELUCIDATED,
IT IS ACTUALLY BEING UNDERMINED BECAUSE AT SOME POINT THE STATUTE IS NOT PROTECTING KIDS,
BUT HURTING KIDS. THE KIDS THAT MR. NOVECK HAS SPOKEN ABOUT THAT WERE REFERENCED
IN BRIEFS, AS WELL AS J.A.'S BRIEFS ARE CHILDREN WHO ARE BEING HURT BY THE STATUTE.
JUSTICE PATTERSON: YOU SAY THAT MEGAN'S LAW STATUTORY TUT AS IT EKS I SEE.
S TODAY IS NOT PROTECTING KIDS, THAT'S A FACTUAL STATEMENT. IT'S NOT
PROTECTING KIDS. HOW DO WE KNOW THAT? I'M REFERRING HERE, I
UNDERSTAND YOU'RE ADVOCATING ON BEHALF OF JUVENILE OFFEND ERS AND THEY ARE CHILDREN, BUT
IN DOE VERSUS PORCH THE PROTECTION OF CHERN IS ABOUT VICTIM TIMS, DOE V PORCH.
SO HOW DO WE KNOW THAT MEGAN'S LAW IS NOT FUNCTIONING TO PROTECT CHILDREN BECAUSE
THAT'S WHAT YOU JUST SAID TO US. CLAUDE CAROLINE HEFFRON: BECAUSE SOME OF
THE CHERN THAT ARE IMPACTED BY MEGAN'S LAW ARE THOSE CHILDREN REQUIRED TO REGISTER AND
WHEN THOSE CHILDREN ARE REQUIRED TO REGISTER AND THEY ARE NO LONGER A DANGER TO ANYONE
ELSE IT IS NOT EFFECTUATING ANY. JUSTICE PATTERSON: ARE YOU SAYING IF YOU
LOOK AT THE CHILD VICTIMS AND, OBVIOUSLY, MANY VICTIMS OF SEX OFFENSES ARE CHILDREN, ARE YOU
SAYING THAT MEGAN'S LAW IS NOT PROTECTING CHILDREN? LEAVING ASIDE, FOR
THE MOMENT, THE JUVENILE OFFENDERS, WE'RE TALKING ABOUT POTENTIAL VICTIMS. IS
MEGAN'S LAW FAILING TO PROTECT CHILDREN? CLAUDE CAROLINE HEFFRON: I DON'T THINK
I'M CAPABLE OF ANSWERING THAT QUESTION ON THE RECORD BEFORE YOU. JUSTICE
PATTERSON: BUT YOU JUST TOLD US THAT AND YOU'RE ASKING THE COURT TO MAKE A CONSTITUTIONAL
DETERMINATION BASED ON A CONCLUSION THAT THE STATUTE DOES NOT PROTECTION CHILDREN
EFFECTIVELY. CLAUDE CAROLINE HEFFRON: IF I WAS IN ARTFUL IN SAYING WHAT I
IN TENLDED AND HOPEFULLY I WILL GET IT RIGHT THIS TIME IS THAT ONCE YOU EXCEED THE PURPOSE,
ONCE A CHILD IS NO LONGER A DANGER, WHICH, WITH RESPECT TO THE 15-YEAR OFFENSE FREE BAR
CAN HAPPEN AFTER A CHILD COMMITS ANOTHER OFFENSE, PERHAPS A PETTY, DISORDERLY PERSONS,
PETTY DISORDERLY PERSONS, OR ONCE A CHILD HAS REACHED THAT A, THEN WE ARE NO LONGER IN
THE CASE WHERE THAT STATUTE IS SERVING A FUNCTION, IS GETTING US CLOSER TO REACHING
THE GOAL OF PROTECTING POTENTIAL CHILD VICTIMS AND IT IS IMPOSING HARMS UPON THE CHILDREN
WHO MUST REGISTER AND THAT'S THE POENT AT WHICH THE COURT IN C.K. SAID THAT WE ENTER INTO
A CONSTITUTIONAL CHALLENGE. I AM POSITING THAT THAT CAN ARISE NOT JUST IN THE CASE SUCH
AS C.K. WHERE THERE IS A LIFETIME BAR, BUT THAT CAN ARISE IN THE CASE WHERE YOU HAVE NOT
YET MET 15 YEARS OR IN A CASE WHERE A PERSON HAS BEEN 15 YEARS BUT THEY HAVEN'T BEEN OFFENSE
FREE. WHAT I AM TRYING TO ARTICULATE IS IT OUT LIVES IT'S USEFULNESS AN THEN
BECOMES EXTRAORDINARILY HARMFUL. IT DOES HAVE REAL IMPACT AS MR. NOVECK DISCUSSED THE
HOUSING IMPACT, THE MENTAL HEALTH IMPACT. I THINK ALL AMICI WROTE ABOUT THAT AND I DON'T
WANT TO BELABOR THOSE POINTS. BY ASKING THAT THIS COURT FIND THAT THE 15 FREE,
YEAR OFFENSE FREE BAR ROOUFS THE IMPEDIMENT TO CONSTITUTIONALITY, WE'RE NOT SAYING THAT
THIS COURT SHOULD ABOLISH MEGAN'S LAW FOR CHILDREN. WE'RE MERELY SAYING THAT
CONSISTENT WITH OTHER JURISPRUDENCE AS TO CHILDREN, THE MEANINGFUL OPPORTUNITY FOR
RELIEF MUST BE AVAILABLE TO THEM AND I WANT TO JUST RETURN TO A POINT THAT I THINK IS I'M
MREK INDICATED IN BOTH CASES IS THAT THE SECOND PART, THE DANGER OF THIS STANDARD IS NOT
A TOOTH LESS STANDARD BY ANY MEANS. NOT ONLY DO JUDGES HAVE TO ADDRESS THAT
STANDARD, BUT THERE ARE MANY GATEKEEPERS ALONG THE WAY. IF A CLIENT COMES TO ME AND ASKS
ME TO FILE A MOTION TO GET OFF MEGAN'S LAW BECAUSE THERE WAS NO 15 YEAR BAR AND THEY
WERE PUT ON MEGAN'S LAW YESTERDAY AND I HAVE AN OBLIGATION TO MAKE A DETERMINES ABOUT WHETHER
OR NOT THAT'S A FRIVOLOUS CLAIM AND I AM GOING TO EMPLOY AN EXPERT WHO HAS SIMILAR MOTIVATIONAL
FINDINGS AND THEN AFTER ALL OF THOSE GATEKEEPERS, THEN IT ACTUALLY GETS TO THE COURT WHO
HAS THE DISCRETION TO SAY THAT THEY'VE MET THE BURDEN OR NOT. THAT ISSUE
CAN BE REVISITED IF THEIR DANGEROUSNESS LEVEL DECREASES AT A FUTURE TIME SO I WANT TO
EMPHASIZE THAT THE REMEDY WE'RE ASKING FOR REMOVING WHAT WE SEE AS A CONSTITUTIONAL I
MPEDIMENT DOES NOT REMOVE ALL BARRIERS. IT DOESN'T MAKE EVERY CHILD SUDDENLY OFF MEGAN'S
LAW AND IT DOESN'T CREATE A DANGER. IT MERELY ENABLES THE CHILDREN WHO ARE NO LONGER
A DANGER TO BE RELIEVED OF THEIR REPORTING OBLIGATIONS. THANK YOU.
THE COURT: THANK YOU, COUNSEL. MR. SANT SANT SANT. JOHN J.
SANTOLIQUIDO: MR. SANTOLIQUIDO. JOHN J. SANTOLIQUIDO: MAY IS V IT PLEASE
THE COURT. MEGAN'S LAW IS A REMEDIAL, NOT A PUNITIVE STATUTE AS THIS COURT
HELD IN DOE AN IT HAS ALWAYS APPLIED TO JUVENILE OFFEND ERS AS THIS COURT RECOGNIZED
IN DOE AND HAS SINCE RECOGNIZED IN SUBSEQUENT CASES IN WHICH MEK LAW INCLUDING SUBSECTION
F HAS BEEN APPLIED TO JUVENILES. THE QUESTIONS BEFORE THIS COURT, THE
CONSTITUTIONALITY OF THE STATUTE, THE FIRST THING THAT THE COURT LOOKS TO WHEN DECIDING
THE CONSTITUTIONALITY OF A STATUTE IS THAT THERE IS A PRESUMES OF CONSTITUTIONAL VALIDITY
TO STATUTES. THEY ARE PRESUMED TO BE CONSTITUTIONALLY VALID. AND THE STANDARD BY
WHICH THE COURT DETERMINES WHETHER THE STATUTE IS CONSTITUTIONAL WHEN CONSIDERING THE QUESTION
IS WHETHER IT PROMOTES A LEGITIMATE STATE INTEREST. AND IF THE STATE INTEREST IS
PROTECTIVE OF THE PUBLIC SAFETY, THE PRESUMES OF VALIDITY IS HEIGHTENED AND THEN THE QUESTION
IS WHETHER THAT STATUTE RATIONALLY PROMOTES THAT LEGITIMATE STATE INTEREST. AND,
IN FACT, AS THIS COURT SAID IN GREENBERG BERGEN, THE QUESTION BECOMES WHETHER THERE IS
ANY CONCEIVABLE RATIONAL BASIS FOR THE STATUTE PROMOTING THAT LEGITIMATE STATE INTEREST.
CERTAINLY, WITH MEGAN'S LAW AS THIS COURT HELD IN DOE, THAT THERE WERE VERY
STRONG STATE INTERESTS THAT ACTUALLY APPROPRIATELY AND NARROWLY THROUGH ITS MANY
PROVISION, COMPLIMENTARY PROVISIONS THAT THE STATUTE RATIONALLY PROMOTES A LEGITIMATE
PUBLIC INTEREST OF PROTECTING THE PUBLIC, ESPECIALLY CHILDREN, THE MOST VULNERABLE
MEMBERS OF THE PUBLIC. THAT IS ESPECIALLY IMPORTANT WITH SEX OFFEND ERS,
JUVENILE OR ADULT, IN THIS CASE OBVIOUSLY DEALING WITH JUVENILES, BUT SEX OFFENSES, IN
PARTICULAR, AS DOE RECOGNIZED, AS THE LEGISLATURE RELIED ON, THAT SEX OFFEND ERS IN PARTICULAR
HAVE HEIGHTENED RATES OF RECIDIVISM AN CERTAIN SEX OFFEND ERS HAVE FURTHER STILL HEIGHTENED
RATE OF RECIDIVISM. INCLUDING CHILD MOLEST STERS, THEY WERE FOUND TO HAVE RATES OF RE
CIDIVISM ELEVATED EVEN AMONG SEX OFFEND ERS AN THAT RECIDIVISM CONTINUED FOR MANY YEARS.
THAT'S WHAT WE HAVE HERE. WE HAVE A JUVENILE SEX OFFENDER WHO, AGAINST A
FIVE YEAR OLD LETTERS GIRL AND HE DID SO NOT OUT OF SEXUAL CURIOSITY AS SOME OF THE RESEARCH
SUGGESTS THAT JUVENILES ARE SEXUALLY CURIOUS WHEN THEY COMMIT SEX OFFENSES, BUT HE DID
THIS TO THIS LITTLE GIRL WHILE HE EXPOSED HIMSELF AND WAS PLEASURING HIMSELF; THAT'S DECEIVE
YABT SEXUAL BEHAVIOR NOT SEXUAL CURIOSITY. I THINK THAT'S AN IMPORTANT POINT THE OFFENSE
FOR WHICH HE WAS CONVICTED. ANOTHER FEATURE OF THIS OFFENSE AND I THINK IT
GOES TO THE RESEARCH THAT THE REGISTRANT HAD PRESENTED IN THIS CASE IS THAT THE RECIDIVISM
RATE IS LOW FOR JUVENILE OFFEND ERS AND EVENTUALLY IT REACHES A POINT OF DESIST
INSTANCE. THE RESEARCH THAT IS AVAILABLE, MUCH OF IT FOCUSES ON ARRESTS AND
CONVICTIONS, BUT THAT LEAVES OUT A VERY LARGE PART OF THE UNIVERSE OF SEX OFFEND ERS AN
THE RESEARCH ON WHICH REGISTRANT AND AMICI RELY RECOGNIZE THAT, THERE ARE LIMITATIONS.
AMONG THE LIMITATIONS IS THAT THE TYPES OF SEX OFFENSES ARE NOT DISTINGUISHED AS OPPOSED
TO NO CONTACT VERSUS CONTACT SO VOIR YIFRM AN EXHIBITION NIFRM ARE LUMPED IN WITH
AGGRAVATED ASSAULT AN SEXUAL MOLESTATION. THE RESEARCH DOESN'T DISTINGUISH.
THE RESEARCH ALSO RECOGNIZES THAT SEX OFFENSES ARE A VERY UNDER REPORTED CRIME,
MANY OF THE SEXUAL OFFENSES, INAPPROPRIATE SEXUAL CONDUCT IS NOT EVEN REPORTED TO THE
POLICE. I THINK ONE OF THE STUDIES IS THAT HALF OF SEX OFFENSES ARE EVEN REPORTED TO
POLICE TASH DASH I THINK IT'S MORE THAN HALF. I THINK IT'S ONLY 25 PERCENT AN OF THAT
25 PERCENT ONLY HALF RESULT IN CON VEKSZ SO MANY SEX OFFENSES GO ZUN REPORTED, CERTAINLY
DO NOT RESULT IN CONVICTIONS APPEND THAT'S ACTUALLY WHAT WEE IN THIS CASE BECAUSE WHEN
THE CHILD EXPOSED TO HER MOTHER WHAT REGISTRANT HAD DONE, SHE FURTHER DISCLOSED THAT
REGISTRANT HAD SEXUALLY ABUSED HER MANY TIMES PREVIOUSLY SO THERE WAS A VERY REAL RISK
INVOLVED IN THIS OFFENSE AND I THINK THAT IT IS REPRESENTATIVE OF THE LIMITATIONS OF THE
RESEARCH IN THIS AREA. THE LEGISLATURE, WHEN IT ENACTED MEGAN'S LAW,
THEY HAD A LOT OF DIFFERENT RESEARCH. THIS COURT RECOGNIZED THAT. THERE IS A FOOTNOTE,
FOOTNOTE 1 IN DOE THAT CHIEF JUSTICE WILL LENS WRITES THAT CONFLICTING STUDIES AND TERM
TAGSZ PARTICULARLY ABOUT THE PRECISE NUMBERS ABOUND BUT IT IS THE PREROGATIVE OF THE
LEGISLATURE TO RESOLVE THOSE ISSUES. JUSTICE WAINER APTER: I WANT TO ASK,
I THOUGHT YOU HAD BEEN DISCUSSED HOW SEX OFFEND ERS HAVE HEIGHTENED RATES OF RECIDIVISM
BUT THEN IT SEEMS LIKE YOU WERE AGREEING THAT THE RECIDIVISM RATE IS LOW AND REACHES A
POINT OF DESIST INSTANCE SO ARE YOU CHALLENGING THE SCIENCE THAT THE OTHER SIDE SAYS IS
UNCONTROVERTED OR ARE YOU COMBRAEG THAT THE SCIENCE IS ALL IN THEIR FAVOR AND THERE IS
A RECIDIVISM RATE OF ONLY 2 PERCENT NO MATTER WHAT THE JUVENILE DOES OTHERWISE.
JOHN J. SANTOLIQUIDO: THE STATE DOES NOT AGREE WITH THAT, ONE OF THE AMICI I THINK SAID
THAT EVENTUALLY, JUVENILE SEX OFFEND ERS THEY REACH A POINT OF DESIST INSTANCE AN THEY ARE
EVEN LESS LIKELY THAN MEMBERS OF THE GENERAL PUBLIC TO OFFEND AND I DON'T THINK THAT THE
RESEARCH BEARS THAT OUT AND IT IS BECAUSE OF LIMITATIONS IN THAT RESEARCH.
JUSTICE MICHAEL NORIEGA: COUNSEL IS THERE RESEARCH THAT WAS CITED IN YOUR BRIEF OR THAT
YOU CAN POINT TO THAT WOULD HELP US REACH THAT CONCLUSION THAT YOU JUST TOLD US.
JOHN J. SANTOLIQUIDO: NOT IN MY BRIEF BUT IN THE STUDIES THAT REGISTRANT AND AMICI PRESENT
TO THE COURT, THE STUDIES HAVE LIMITATIONS SECTION AND THEY TALK ABOUT THOSE LIMITATIONS
AS I DISCUSSED. THE RESEARCH IS NOT IRREFUTABLE AS REGISTRANT AND HIS AMICI CONTEND.
JUSTICE PIERRE-LOUIS: DO YOU HAVE CONFLICTING RESEARCH TO REFUTE THE STUDIES
WITH REGARD TO THE RECIDIVISM RATE OF THE INDIVIDUALS WHO WERE PROSECUTED AND CONVICTED
OF THESE CRIMES BECAUSE I KNOW YOU VOTE THAT ONE OF THE LIMITATIONS IS THE FACT THAT
SEX OFFENSES ARE UNDER REPORTED, BUT THE RATE OF REAS I SAID DEFRM IN THOSE STUDIES FOCUS
ON THE INDIVIDUALS WHO THE SEX OFFENSES WERE REPORTED AND THEY WERE PROSECUTED, CORRECT?
JOHN J. SANTOLIQUIDO: YES. JUSTICE PIERRE-LOUIS: SO OF THAT
CATEGORY OF INDIVIDUALS ARE YOU ARGUING THAT THE RATES OF RECIDIVISM FOR THOSE INDIVIDUALS
IN THOSE STUDIES ARE INACCURATE AND, IF SO, WHAT STUDIES DO YOU HAVE TO SHOW THAT.
JOHN J. SANTOLIQUIDO: I DON'T KNOW THAT IT'S INACCURATE, BUT IT IS NOT COMPLETE. WELL,
IT'S TRUE AS FAR AS IT GOES BUT IT LIMITS THE UNIVERSE OF SEX OFFENDING THAT DOESN'T
PRESENT A REPRESENTATIVE PIKT. JUSTICE PIERRE-LOUIS: YOU COULD SAY THAT
ABOUT A LOT OF CRIMES, NOT EVERYONE THAT SELLS DRUGS GET ARREST TD AND GETS CONVICTED AN
THEREFORE YOU KPTD HAVE A FULL PIKT FULL PIKT OF EVERYBODY WHO WOULD RESIT VAT AFTER THAT
EXPERIENCE. I AM TRYING TO GET AN UNZING OF WHAT YOUR POSITION IS ON THE RATES THAT THEY
DO HAVE IN THE RESEARCH THAT THEY HAVE PRESENTED, JUST SIMPLY THAT IT IS NOT THE WHOLE
PIKT TUR. JOHN J. SANTOLIQUIDO: ALSO, THE RESEARCH THAT HAS BEEN PRESENTED
FOIKSS ON THE REDID AS I SAID DIFRM RATE IT'S 2.75 RECIDIVISM RATE, WELL THAT 2.5
RECIDIVISM RATE WAS A RANGE OF FOLLOWING OFFEND ERS AFTER THEIR CONVICTION AND THEIR RELEASE
AND IN SOME CASES AS SHORT AS 12 MONTHS, BUT IN THAT SAME STUDY WHEN IT BROUGHT IT OUT
TO 5 YEARS, YOU KNOW, 60 MONTHS AN THEN TEN YEARS THE RATES OF REAS I SAID DEFRM WENT
UP TO ABOUT 9 PERCENT. JUSTICE WAINER APTER: CAN YOU SAY THAT ONE MORE
TIME. JOHN J. SANTOLIQUIDO: THE STUDY LOOKED AT OFFEND ERS FOR BETWEEN I
THINK 12 MONTHS AND 40 SOMETHING MONTHS. IT WAS A RANGE OF TIME. SOME OF THE OFFEND
ERS INCLUDED IN THAT 2.75 PERCENT, IT HAD BEEN ONLY A YEAR. JUSTICE WAINER
APTER: YOU'RE SAYING THAT THE RECIDIVISM RATE IS 9 PERCENT WHEN YOU FOLLOW OFFEND ERS
FOR WHAT? JOHN J. SANTOLIQUIDO: FOR TEN YEARS, I THINK IN THAT SAME STUDY
IT WAS ALMOST 9 PERCENT WHEN YOU FOLLOWED IT OUT TO TEN YEARS. JUSTICE MICHAEL
NORIEGA: LET'S LOOK A LETTER JUSTICE WAINER APTER BECAUSE I RELIED HEAVILY ON JUSTICE WAINER
APTER'S CASE AN WHAT HAPPENED IN THIS INSTANCE. AM I MISTAKEN OR DID THE RECORD
REFLECT THAT THE COURT DECLINED TO FIND THAT JUSTICE WAINER APTER POSED A DANGER TO
SOCIETY? THE COURT CANNOT FINE JUSTICE WAINER APTER WAS A DANGER TO SOCIETY.
THE ONLY FACTOR WAS FOLLOWING REMOVAL FROM REGISTRATION WAS A NONSEXUAL OFFENSE.
JOHN J. SANTOLIQUIDO: IN THIS CASE. JUSTICE MICHAEL NORIEGA:
IN THIS CASE. JOHN J. SANTOLIQUIDO: CORRECT. THE MOTION COURT FOUND THAT
THE 15 YEAR BAR APPLIED AND JUSTICE WAINER APTER HAD NOT JUST ONE, BUT TWO ADDITIONAL
OFFENSES AFTER RECEIVING THE ADJUDICATED DELINQUENT AND AFTER THAT ADJUDICATED
DELINQUENT OF ROBBERY, SECOND DEGREE ROBBERY AND IT WAS ON THAT BASIS THAT THE COURT FOUND
JUSTICE WAINER APTER WAS IN. THE COURT DID GO ON TO FIND THAT REGISTRANT
MET THE SAFETY PRONGS THAT REGISTRANT WAS NOT A RISK, BUT AS I THINK JUSTICE PATTERSON
HAD INDICATED, THERE WAS NOT A FULL PICTURE HERE AND I THINK ONE OF THE AMICI SAID THAT
THE STATE HASN'T PRESENTED ANY OTHER RESEARCH. WELL, THERE WAS NO NEED TO
DO THAT BECAUSE THERE WAS THE 15-YEAR BAR. THERE WAS A ONE SITED PRESENTATION, BUT AS
THIS COURT RECOGNIZED IN DOE, CONFLICTING STUDIES AND TERMSZ ABOUND, THERE IS OTHER RESEARCH.
JUSTICE WAINER APTER: SO THEY WERE CHALLENGING THE 15 YEAR BAR BASED ON
DATA AND YOU SEEMED TO JUST SAY THAT THERE WAS NO NEED TO INTRODUCE ANY CONFLICTING DATA
BECAUSE THE 15 YEAR BAR EXISTS. JOHN J. SANTOLIQUIDO: YES. JUSTICE
WAINER APTER: I DON'T UNDERSTAND. THEY ARE SAYING THE 15 YEAR BAR SHOULD NO LONGER EXIST
BECAUSE ALL THE DATA IS ON THEIR SIDE AND YOU'RE SAYING WE DON'T HAVE TO PUT UP ANY
CONFLICTING DATA BECAUSE THE 15 YEAR BAR EX IGSS SAN SAN UNDER THE LAW AS IT IS BECAUSE
JUSTICE WAINER APTER WAS NOT GOING TO BE ELIGIBLE FOR RELIEF. HE STILL HAD THE HEARING.
I THINK JUSTICE NORIEGA TO YOUR POINT THERE WAS STILL A HEARING IN THIS CASE.
JUSTICE WAINER APTER: THEY ARE ATTACKING THE CONSTITUTIONALITY OF THE BAR ON THE BASIS
OF DATA, CORRECT? JOHN J. SANTOLIQUIDO: CORRECT. JUSTICE
WAINER APTER: SO IS THERE ANY CONFLICTING DATA TO JUSTIFY THE CONSTITUTIONALITY OF THE
BAR. JOHN J. SANTOLIQUIDO: I THINK THE CONFLICTING DATA IS IN THE RESEARCH
THAT THEY PRESENT IN THE SERIOUS LIMITATIONS IN THIS STUDY. ANOTHER OF THE
EDUCATE THAT IS TOO MANILY IN, I THINK IT'S THE AMICI ACLU, I THINK IT WAS TO YOUR POINT,
JUSTICE WAINER APTER, ABOUT THE OVERALL EFFECTIVENESS OF MEGAN'S LAW AND I THINK
CHIEF JUSTICE AN MAYBE JUSTICE PATTERSON, ABOUT THE OVERALL EFFECT OF MEGAN'S LAW AND IT'S
ACTUALLY IN THE -- IT'S A 2008 STUDY THE THAT AMICI ACLU PRESENT, CHRIS STA BLANK ET
AL., FROM 258. IN THAT STUDY IT LOOKED AT TRENDS IN NEW JERSEY IN THE 21 COUNTIES AND
STATE WIDE AND IT FOUND THAT THERE HAS BEEN A MARK KED DECLINE IN SEXUAL RECIDIVISM SINCE
1994. NOW THE AUTHORS POENT OUT THAT THERE WAS A CLIENT PRIOR TO 1994 BUT
THERE WAS A STEEPER DECLINE AFTER 1994 THAT CONTINUED AND IT WAS REFLEBTD BY THE FACT
THAT COUNTY BY COUNTY WITH TWO EXCEPTION OF THE 21 COUNTIES THAT THE PRIOR RATES OF RE
CIDIVISM WERE PRIOR TO 1994 AND THE STUDY WENT OUT PAST 2000. AFTER ACKNOWLEDGING
THERE WAS A DECLINE PRIOR TO 1994 THEY WRITE IT IS NEVERTHELESS HARD TO EXPLAIN, AFTER
THE IMPLEMENTATION OF MEGAN'S LAW GIVEN THAT SEX OEFRMGSS ARE LOW BASE RATE EVENTS, A
CCELERATED RATE AFTER 1994 SUGGESTS THAT SOMETHING OTHER THAN A NATURAL DECLINE MAY BE
RESPONSIBLE AND THEY ADD, ALTHOUGH THE INITIAL DECLINE CANNOT BE ATTRIBUTED TO MEGAN'S LAW,
THE CONTINUED DECLINE MAY, IN FACT BE RELATED IN SOME WAY TO REGISTRATION AN NOTIFICATION
ACTIVITIES. JUSTICE PATTERSON: SO WHEN YOUR ADVERSARY IS SAYING THAT THERE
COMES A POINT WHEN A JUVENILE OFFENDER IS A SAFER CITIZEN IN SOCIETY THAN PERHAPS SOMEONE
WHO HAS NEVER BEEN CONVICTED OR HAS NOT BEEN AN ADJUDICATED DELINQUENT, COULD THAT BE,
IN FART, THE RESULT OF RESTRICTIONS BY MEGAN'S LAW. JOHN J. SANTOLIQUIDO:
I THINK SO, I THINK THAT'S THE IDEA OF MEGAN'S LAW THAT THERE WAS GOING TO BE A FORM OF
PASSIVE COMMUNITY SUPERVISION. JUSTICE WAINER APTER: I ASKED THAT QUESTION
TO THE OFFICE OF THE PUBLIC DEFENDER AND HE SAID ACTUALLY THE OPPOSITE, PEOPLE WHO WERE
REQUIRED TO REREGISTER REAS I SAID VAT MORE THAN PEOPLE WHO ARE NOT. JOHN J.
SANTOLIQUIDO: THOSE WHO NEED TO REGISTER AN THOSE WHO ARE MORE LIKELY TO REAS I SAID
VAT, THEY ARE TIERED AT A HIGHER LEVEL AND THEIR RATES OF RECIDIVISM GO UP SO THERE IS
SOME CORRELATION VERSUS CAUSATION ASPECT TO THIS. JUSTICE PIERRE-LOUIS:
DO YOU HAVE A COUNTER TO THOSE STATISTICS WITH REGARD TO WHAT JUSTICE WAINER APTER JUST
STATED. JOHN J. SANTOLIQUIDO: I DON'T HAVE ANY RESEARCH MYSELF ON THE POINT
BUT THE MOST LIKELY OFFENDER -- JUVENILE OR ADULT, WHO ARE MOST LIKELY TO REOFFEND ARE
MOST LIKELY TO BE ON MEGAN'S LAW AND SO THEY'RE GOING TO HAVE HIGHER RATES OF REAS I SAID
DEFRM POTENTIALLY BUT THE WAY TO AMELIORATE THAT IS THROUGH THE TIERING PROCESS AND THAT IS
ACTUALLY SOMETHING THAT THIS REGISTRANT AS HAS NOT AVAILED HIMSELF OF THE OPPORTUNITY,
IF THERE ARE CHANGED CIRCUMSTANCES TO RETIER. HE IS TIERED AT A TIER 2. HE WAS TIERED
AS A TIER 2 TWENTY YEARS AGO. JUSTICE MICHAEL NORIEGA: GIVEN YOUR COMMENTS
ABOUT THE HISTORY AN THE NEW OFFENSES WOULD YOUR OFFICE OPPOSE RETIERING. JOHN
J. SANTOLIQUIDO: MY OFFICE, IF THE REGISTRANT, IF HE RICHED TO RETIER, WE WOULD INVESTIGATE
-- IT'S NOT SOMETHING THAT WE WOULD CONCEDE, BUT WE WOULD CERTAINLY TAKE THE OPPORTUNITY
TO DETERMINE WHETHER ANY OF THE FACTORS ARE CHANGED. I MEAN, THE RISK -- THE
R R A S. IT HAS THOSE CERTAIN ELEMENTS. JUSTICE MICHAEL NORIEGA: KNOWING
YOUR POSITION THAT YOU GAVE US TODAY ON THE TYPE OF OFFENSE, WHAT THE ORIGINAL OFFENSE
WAS AND THE NATURE OF THE ADDITIONAL SUBSEQUENT OFFENSES THAT YOU SPOKE OF THAT WERE VERY
HARSH OFFENSES AT THE TIME, WOULD THOSE CAUSE YOUR OFFICE TO USUALLY OBJECT TO RETIERING,
SAAB SAN. JOHN J. SANTOLIQUIDO: THOSE ARE ACCOUNTING FOR IN THE OFFENSE
CHARACTERISTICS PORTION OF THE R R A S BUT THERE ARE COMMUNITY ENGAGEMENT AN TREATMENT
ASPECTS AMONG THE FOUR PARTS OF THE R R A S AND FOR INSTANCE, IN 24:00 WHEN REGISTRANT
WAS YOUNG HE WAS UNEMPLOYED, THAT WAS THREE POENTS THERE WHERE THERE WAS A TOTAL, WELL
HE HAS A JOB NOW. HE DOESN'T IDENTIFY ANY LIBERTY INTERESTS THAT ARE I'M MREK
INDICATED IN THIS AND THE OFFICE OF THE PUBLIC DEFENDER, THEY POINT OUT THE HARMS IN GENERAL
TO OTHER OFFEND ERS, BUT REGISTERED IN THIS CASE, HE HAS NOT BEEN PREVENTED FROM REINTEGRATING
INTO SOCIETY AND THAT WAS PART OF THE PROMISE OF MEGAN'S LAW THAT IT WAS GOING TO BE A
WAY FOR THE COMMUNITY TO PROTECT ITSELF, BUT IN A WAY THAT WOULD NOT PROHIBIT REGISTRANT'S
FROM REINTEGRATING INTO SOCIETY. THE COURT: COUNSEL, FOLLOWING UP ON JUSTICE
NORIEGA'S RECORD, YOU HAVE A COMMAND ON THE RECORD BASED ON WHAT YOU KNOW IF AN
APPLICATION FOR A HEARING TO ASSESS HIS TIERING WERE SUBMITTED TOMORROW, WOULD YOUR OFFICE
OPPOSE IT? HAD. JOHN J. SANTOLIQUIDO: MY OFFICE WOULD CONSIDER -- I
LOOKED AT THE R R A S THAT JUSTICE WAINER APTER -- THAT WAS CONDUCTED ON J.A.'S BEHALF
IN FEBRUARY OF 2004. DEPENDING ON THE RETIERING -- I AM NOT A MEGAN'S LAW PROSECUTOR,
BUT SOME OF THE FACTORS INCLUDING THE LENGTH OF TIME SINCE THE LAST OFFENSE, HE GOT SEVERAL
POINTS FOR THAT IN 2004. THERE HAS BEEN A LONGER PERIOD OF TIME. HE MIGHT GET AS MANY
AS 12 POENTS OFF. I DON'T WANT TO HEM IN MY OFFICE ON THAT POSITION, BUT CERTAINLY HE
HAS EMPLOYMENT NOW, THAT'S 3 POINTS OFF. HE MIGHT BE TIERED AS A TIER 1. THERE ARE
OPPORTUNITIES FOR RELIEF AND THAT'S WHAT IS SO IMPORTANT TO THIS COURT ABOUT STATUTES THAT
IMPACT JUVENILES, WHETHER THERE IS AN AVENUE FOR RELIEF AND SUBSECTION F PROVIDES THAT
AND THIS COURT RECOGNIZED THAT IN C.K. C.K. WAS SEEN AS A SAFLT VALVE BY THIS COURT, THAT
SUBSECTION G, THERE WAS AN IR REBUTTABLE PRESUMES, BUT THAT SUBSECTION F WAS LOOKED AT
IN CONJUNCTION, NECESSARILY AS JUSTICE AL WROTE IN CONJUNCTION. HE HAD THAT AVENUE AND
IT'S SIGNIFICANT THAT THE OPPORTUNITIES THAT WERE PROVIDED FOR REHABILITATION TO THIS
JUVENILE, HE DID NOT AVAIL HIMSELF OF THOSE OPPORTUNITIES. INSTEAD HE REOFFENDED AGAIN
AND THE SECOND TIME VERY SERIOUSLY WITH A ROBBERY AFTER THAT SO HE HAD OPPORTUNITIES TO
REHABILITATE AND THIS COURT HAS FOUND WITH THE WAIVER STATUTE WHEN THE COURT UPHELD THE
WAIR STATUTE IN 2016, IT RECOGNIZED THAT A SIGNIFICANT CONSIDERATION IS WHETHER THE
INDIVIDUAL, THE JUVENILE HAS A JUVENILE DELINQUENCY HISTORY AND WHETHER THE JUVENILE
HAS BEEN IN A JUVENILE JUSTICE COMMISSION FACILITY AN THEN OFFERED TUPTS FOR TREATMENT
AND REHABILITATION AND HOW HE HAS RESPONDED TO THAT APPEND SO IT'S SIKT THAT A SITTING
SIGNIFICANT, THAT A JUVENILE WHO DOES NOT TAKE THOSE OPPORTUNITIES FOR RELIEF IS DIFFERENT
LY SUEDE THAN OFFEND ERS WHO HAVE OFFENDED ONLY ONCE. THE QUESTION F, AS PART
OF THE LEGISLATURE'S OVERALL SCHEME AND AS THIS COURT RECOGNIZED T IN DOE, THE PARTS OF
MEGAN'S LAW ARE COMPLIMENTARY. THERE IS A CAREFUL BALANCE. THE LEGISLATURE THOUGHT
THIS OUT ABOUT HOW TO BEST PROTECT THE PUBLIC WITHOUT IMPACTING UNDULY ON REGISTRANT'S
AND THE 15-YEAR BAR WAS NECESSARY BECAUSE IT WAS AN OPPORTUNITY FOR REGISTRANT'S TO
DEMONSTRATE THAT THEY HAD REHABILITATED, THAT THEY HAD GAINED AN ABILITY TO COMPLY WITH
THE LAW. JUSTICE MICHAEL NORIEGA: YOU SAY HE MISSED AN OPPORTUNITY TO
REHABILITATE. THE JUDGE FOUND HE LED AN EXEMPLARY LIFE, SINCE THE JUVENILE ADJUDICATIONS,
WHAT GOOD DOES THAT SERVE AT THIS POENT BEING THAT NOW THE PERSON IS ABLE TO LIVE AN EX
EMPLAR RELIFE AND BE A PRODUCE LAW BOOKING CITIZEN. JOHN J. SANTOLIQUIDO:
THAT'S TO REGISTRANT'S CREDIT NOR NOR WHERE IS THE RATIONAL BASIS TO THE PROTECTION OF.
JOHN J. SANTOLIQUIDO: I THINK IT SHOWS WITH THE DECLINES IN SEXUAL REAS
I SAID DEFRM AFTER 1994 THAT MEGAN'S LAW PROVIDES A USEFUL CHECK ON SEX OFFEND ERS AND
I THINK THAT'S ESPECIALLY NECESSARY FENDING ON THE SEX OFFENSE AN HERE IT WAS A VERY SERIOUS
SEX OFFENSE. JUSTICE MICHAEL NORIEGA: THERE IS STILL A RISK OF
RECIDIVISM. JOHN J. SANTOLIQUIDO: THERE CERTAINLY IS. JUSTICE
MICHAEL NORIEGA: FROM WHAT? SON. JOHN J. SANTOLIQUIDO: IT ACTUALLY WAS
IN THE HEARING THAT WAS CONDUCTED ON THIS MATTER BEFORE THE MOTION COURT, REGISTRANT'S
PRESENTED EXPERT TESTIMONY FROM MICHAEL NOEFR AND IT WAS ACTUAL ON THE CROSS-EXAMINATION
OF MR. NOEB, WHERE HE INDICATED, THAT HE ACKNOWLEDGED THAT ADULT SEX OFFEND ERS WHO
COMMIT SUBSEQUENT NONSEXUAL OFFENSES REAS I SAID VAT AT A HIGHER RATE. L THAT'S SIGNIFICANT
BECAUSE THIS REGISTRANT, HE DID THAT AND IN A VERY SERIOUS WAY AND IN A WAY SERIOUS ENOUGH
THAT DOES PT ALLOW FOR EXPUNGEMENT. I KNOW THAT CAME UP IN THE PREVIOUS CASE I THINK
THAT'S A SIGNIFICANT CONSIDERATION AS WELL BECAUSE THE REGISTRANT IN AMICI, THE AMICI,
AND. ANY SUBSEQUENT OECHLS WITHIN THAT 15 YEARS PREVENTS TERMINATION UN
SUBSECTION F IT COULD BE LITTERING A PETTY DISORDERLY PERSONS. IF IT IS A NONVIOLENT
MINOR OFFENSE SUBJECT TO EXPUNGEMENT THEN EVEN UNDER SUBSECTION F THERE WOULD BE THE
OPPORTUNITY TO EXPUNGEMENT AND IN SOME OF THE OTHER COUNTIES THEY DO AVAIL THEMSELVES OF
THAT OPPORTUNITY. MY OWN EXPERIENCE WHEN I WAS A PROSECUTOR IN AT KOUPT FOR
GUNN PERMITS UNDER CHAPTER 58, THE FIREARM LAWS, THAT IF AN INDIVIDUAL HAS A CRIMINAL
RECORD, THEY ARE BARRED FROM HAVING A FIERNLS IDENTIFICATION CARD, A CARRY PERMIT AN I
REMEMBER IN TWO, MAEB THREE OF MY CASES THAT THE APPLICANTS HAD CRIMINAL CONVICTIONS,
ONE WAS A MINOR DRUG CONVICTION FROM LIKE 1985 AND THE WAY THAT THAT WAS RESOLVED, THAT
THE APPEAL, THE FIREARM APPEAL WAS ADMINISTRATIVELY DISMISSED ALLOWING FOR THE
REGISTRANT TO APPLY FOR AN EXPUNGEMENT AN THEN REAPPLY TO THE POLICE DEPARTMENT AFTERWARDS.
JUSTICE MICHAEL NORIEGA: HERE YOU WOULD BE AWARE THAT THE MATTER HAD BEEN
EXPUNGED, CORRECT? THE PROSECUTORS OFFICE WOULD KNOW IF A REGISTRANT WAS
APPLYING TO BE RUFD FROM MEGAN'S LAW THE PROSECUTOR HANDLING IT WOULD KNOW THAT THEY
HAD AN EXPINGED MATTER. JOHN J. SANTOLIQUIDO: I DON'T THINK WE WOULD
NECESSARILY KNOW. JUSTICE MICHAEL NORIEGA: I THINK THEY WOULD BE AWARE OF THE
CRIMINAL COURT HISTORY AN KNOW EXACTLY WHAT MATTERS THEY HAD. JOHN J.
SANTOLIQUIDO: IT WOULD REMOVE IT FROM THE RAP SHEET SO WE WOULDN'T KNOW UNLESS WE DID
SOME DIGGING. IT WOULDN'T BE AN AUTOMATIC BAR IT WOULD ALLOW FOR THE SECOND PRONG OF
SUBSECTION F TO A TAKE PLACE AN THAT THE REGISTRANT WOULD HAVE AN OPPORTUNITY TO
DEMONSTRATE THAT HE IS NO LONGER A HARM TO OTHERS. IT'S AN EXPUNGE ABDOMINAL OFFENSE,
IT WOULDN'T COME UP AUTOMATICALLY BUT IF IT WERE DISCOVERED BY THE STATE IT STILL WOULD
ALLOW FOR TERMINATION IF THE REGISTRANT COULD PROVE UN THE SECOND PRONG THAT HE IS NO
LONGER A DANGER TO OTHERS. JUSTICE WAINER APTER: OFFENSE FOR PURPOSES OF THE
15 YEAR BAR. JOHN J. SANTOLIQUIDO: NO, IT COULD, YOUR HONOR, IT CERTAINLY
COULD, BUT IT WOULD BE. JUSTICE WAINER APTER: IT WOULDN'T AND IT'S ALL ABOUT
THE DISCRETION OF THE JUDGE AS TO WHETHER THE PERSON IS STILL A HARM TO THE PUBLIC.
JOHN J. SANTOLIQUIDO: IF THE REGISTRANT WERE TO AVAIL HIMSELF OF EXPUNGEMENT AN IF
THAT EXPUNGEMENT WERE GRANTED, THEN THERE WOULD BE AN OPPORTUNITY TO ESTABLISH TO THE
JUNL THAT THE REGISTRANT IS NO LONGER A RISK OF HARM TO OTHERS. JUSTICE WAINER
APTER: THAT MEANS THE 15-YEAR BAR WOULD NOT APPLY. JOHN J. SANTOLIQUIDO:
CORRECT, WAN. JUSTICE WAINER APTER: WAYNE IF SOMEONE HAS A SECOND OFFENSE,
IT IS EXPUNGED DOES THE 15-YEAR BAR APPLY. JOHN J. SANTOLIQUIDO: NO, IT
WOULD NOT BECAUSE THERE WOULD NOT BE A CONVICTION AT THAT POENT. THE EFFECT OF AN EXPUNGEMENT
IS THAT IT IS NOT A CONVICTION SO THE REGISTRANT WOULD BE ABLE TO TRUTHFULLY SAY THAT
HE HAD NOT BEEN CONVICTED OF A SUBSEQUENT OFFENSE. JUSTICE MICHAEL
NORIEGA: THAT'S NOT TRUE FOR ALL PURPOSES, THOUGH. L SOMEBODY IS PREVENTED FROM GETTING
PTI SHTHS ALL SORTS OF OTHER AREAS OF THE LAW DESPITE HAVING EXPUNGED OFFENSES BECAUSE
IT'S NOT NECESSARILY DELETED AS A CONVICTION FOR ALL PURPOSES UNDER THE 2C:SAN SA SAN
THAT'S CORRECT. IT DOES PROVIDE FOR PAROLE BOARD CONSIDERATIONS. JUSTICE MICHAEL
NORIEGA: SO A PROSECUTOR'S OFFICE COULD TAKE THE POSITION THAT WE COULD STILL CONSIDER
A CONVICTION FOR PURPOSES OF THE 15 YEAR BAR. JOHN J. SANTOLIQUIDO: WE CERTAINLY
COULD BECAUSE THERE IS ANOTHER PROVISION IN THE EXPUNGEMENT STATUTES WHERE THE STATE CAN
APPLY OR ANYONE CAN APPLY TO THE COURT FOR AN ORDER RELEASING THE EXPUNGED RECORDS FOR
LEGITIMATE PURPOSES, BUT THE POINT IS THAT IT WOULD NOT BE AN AUTOMATIC BAR. IT WOULD
NOT RUN AFOUL OF THE 15 YEAR OFFENSE REBAR IT WOULD PROVIDE AN OPPORTUNITY FOR RELIEF.
JUSTICE WAINER APTER: IT SOUNDS LIKE YOU JUST TOLD JUSTICE NORIEGA THAT
IT WOULD APPLY. THE ONLY THIS EVENING WE'RE ASKING IF THERE IS A PRIOR OFFENSE AND IT
EXPUNGED DOES THE 15 YEAR BAR APPLY. JOHN J. SANTOLIQUIDO: NO IT DOES NOT
APPLY AN THEN THE JUVENILE -- THE REGISTRANT, EXCUSE ME WOULD HAVE TO THEN CONVINCE A
COURT BY CLEAR AND CONVINCING EVIDENCE UNDER THE SECOND PRONG, THE SAFETY PRONG OF SECTION
F. THERE ARE AVENUES FOR RELIEF, BUT THERE ARE AVENUES FOR RELIEF UNDER THE
15 YEAR BAR ITSELF AN FOR THE REGISTRANT AN AMICI TO ARGUE THAT THE 15 YEAR SHOULDN'T
APPLY THAT'S ASKING FOR A RIGHT TO REOFFEND, THAT THEY SHOULD HAVE THE ABILITY TO.
JUSTICE PIERRE-LOUIS: YOU'RE SAYING THE RELIEF UNDER THE 15 YEAR IS DON'T REOFFEND, IS
THAT THE RELIEF THAT YOU'RE REFERRING TO THAT REGISTRANT HERE DID NOT AVAIL HIMSELF OF
THAT HE WOULD HAVE BEEN ABLE TO SEEK TERMINATION AFTER 15 YEARS, BUT BECAUSE HE REOFFENDED
HE DIDN'T AVAIL HIMSELF OF THE RELIEF OF NOT REOFFENDING. JOHN J.
SANTOLIQUIDO: THAT IS CORRECT. HE HAD OPPORTUNITIES TO PROVE THROUGH HIS CONDUCT
THAT HE HAD GAINED AN ABILITY TO COMPLY WITH THE LAW AND THAT'S SIGNIFICANT BECAUSE IT'S
ONE THIS EVENING TO PRESENT STUDIES. IN MY EXPERIENCE AS A PROSECUTOR, DEFENDANTS,
JUVENILES -- I WAS A JUVENILE PROSECUTOR FOR A PERIOD OF TIME, THEY OFTEN DO THEIR BEST
TO PRESENT THEIR BEST SEFLS TO THE COURT. THEY WANT -- BECAUSE THEY WANT SOMETHING FROM
THE COURT, BUT ACTIONS SPEAK LOUDER THAN WORDS AND THAT WAS RECOGNIZED BY THE LEGISLATURE
WHEN THEY INCLUDED THE 15 YEAR OFFENSE FREE BAR IN SUBSECRETARY F AN THAT THIS COURT HAS
ALWAYS APPLIED TO JUVENILES. I THINK JUSTICE PATTERSON AS YOU MENTIONED IN 'THE PREVIOUS
CASES, MEGAN'S LAW HAS APPLIED TO JUVENILES FOR 30 YEARS. JUSTICE PATTERSON:
HAS ANYONE -- IS THERE ANY RESEARCH OUT THERE WITH WHICH YOU ARE FAMILIAR THAT TRIES TO
UNRAVEL THE QUESTION WHETHER DECREASES IN RECIDIVISM IN -- AS I UNDERSTAND IT, 50
STATES HAVE SOME FORM OF MEGAN'S LAW. IT VARIES, BUT 50 STATES HAVE VARIANCE OF MEGAN'S
LAW THAT -- DO THOSE DECREASES HAVE ANYTHING TO DO WITH THE FACT THAT THERE ARE GREAT
ER RESTRICTIONS ON INDIVIDUALS WHO HAVE COMMITTED SEXUAL OFFENSES THAN THERE WERE BEFORE
MEGAN'S LAW? DO YOU SEE WHAT I AM SAYING? THE IMPACT OF
RESTRICTIONS ON RECIDIVISM WHICH IS A WHOLE PURPOSE WHICH IS CLEAR IN THE LEGISLATIVE
HISTORY, CLEAR IN DOE V PORCH THAT THE WHOLE PURPOSE OF MEGAN'S LAW IS TO DETER SEXUAL
OFFENSES, SUN SUN CHILDREN IN PARTICULAR. I THINK THE STUDY THAT AMICUS ACLU POENTS OUT,
THAT 2008 STUDY THAT SHOWS THAT THERE WAS A STEEPER DECLINE THAT MAY BE AT TRIB PUT TABL
TO THE RENL STRAGS AND NOTIFICATION PROVISIONS THAT MEGAN'S LAW HAS HAD AN EFFECT, BUT
IT HAS HAD AN EFFECT IN SUCH A WAY THAT IT HAS NOT UNDULY BUR BURDENED THIS REGISTRANT.
JUSTICE PATTERSON: DO WE KNOW WHETHER THE SCIENCE THAT IS BEING PRESENTED
TO US AS A BASIS TO STRIKE DOWN ONE ASPECT OF MEGAN'S LAW, IN THIS CASE SUBSECTION F
15-YEAR BAR FOR JULS, MAY IN PART BE IN PART RESPONSIBLE FOR THE DECREASE IN RECIDIVISM
THAT THE STUDIES SHOW. JOHN J. SANTOLIQUIDO: THAT CERTAINLY COULD BE AND
I THINK THAT THE QUESTION IS REALLY FOR THE LEGISLATURE. THE QUESTION FOR THIS COURT
AS TO THE CONSTITUTIONALITY IS WHETHER THERE IS A CONCEIVABLE RATIONAL BASIS AND AS THIS
COURT CAN RECOGNIZED IN DOE CONFLICTING STUDIES AN INTERPRETATIONS INCLUDING ABOUT PRECISE
NUMBERS ABOUND BUT IT IS THE LEGISLATURE'S PREROGATIVE. I DON'T THINK WE
WOULD KNOW WHAT WOULD HAPPEN IF WE UNBALANCED THIS. LETTER THE RESEARCH IS NOT CLEAR AND
I THINK THE COURT RECOGNIZED -- WE'RE NOT SOESH OL GISTS. WE'RE NOT EPIDEMIOLOGISTS.
THERE IS OTHER EVIDENCE AND I DON'T THINK THE COURT ON OR THE PARTIES ARE QUIPPED TO
PROPERLY INVESTIGATE THAT. THAT'S A QUESTION FOR THE LEGISLATURE. THEY CAN HOLD HEARINGS
WHERE ALL THE STAKEHOLDERS CAN PRESENT EVIDENCE. WE DIDN'T HAVE THAT IN THIS CASE BECAUSE
WE HAD THE 15-YEAR BAR. I THINK THERE IS A ONE SIDED PRESENTATION HERE BEFORE THIS COURT
THAT THE LEGISLATURE WOULD BE ABLE TO SEE THE ISSUE FROM ALL SIDES SFLFRMENTS CAN YOU
HELP US WITH THAT, A SLIGHTLY DIFFERENT POENT AND THAT IS POTENTIAL TENSION BETWEEN THE
JUVENILE CODE AND MEGAN'S LAW WITH RESPECT TO SECTION F IN THIS RESPECT. A JUVENILE AND
A PERSON AGE 14 CANNOT BE WAIVED UP TO ADULT COURT, BUT A 14 YEAR OLD, IF THEY COMMIT
A SECOND OFFENSE, CAN BE BE SUBJECTED TO LIFETIME MANDATORY REGISTRATION. HOW
DO YOU RECONCILE THAT. IS THAT A RELEVANT CONCERN. JOHN J.
SANTOLIQUIDO: I THINK IT'S A RELEVANT CONCERN BUT MEK LAW IS NOT PUNITIVE. IT'S REMEDIAL.
THAT'S ONE OF THE EMPHATIC POENTS IN DOE. CHIEF JUSTICE WIL AFTER GOING THROUGH WHAT
IT SAYS IN MEGAN'S LAW SAYS NONE OF THAT NEEDS TO BE SAID BECAUSE IT'S SO CLEARLY REMEDIAL,
MEGAN'S LAW IS NOT PUNITIVE. YES, IT CAN APPLY TO OLDER JUVENILES EVEN IF THE 14 YEAR
OLD COULD NOT BE WAIVED AND IT COULD STILL APPLY AND THIS COURT IN J.G. FOUND THAT RECONCILING
MEGAN'S LAW AND THE JUVENILE JUSTICE CODE FOUND THAT RATHER THAN OVERTURNING THE LEGISLATIVE
WILL IT ACCOMMODATED THE LEGISLATIVE WILL BY FINDING THAT MEGAN'S LAW APPLIES, IN THAT
CASE IT WAS A TEN YEAR OLD SO MEGAN'S LAW CAN APPLY BECAUSE IT'S NOT PUNITIVE AND THIS
COURT RECOGNIZED IN STATE V. BROWN IN 2021, THAT A KEY CONSIDERATION FOR THE COURT IN
DOE WAS THAT MEGAN'S LAW IS RECOMMEND MED YA 'ALL AND IT'S PURELY REMEDIAL SO IT'S NOT
A QUESTION THAT THE INDIVIDUAL IS BEING PUNISHED. JUSTICE WAINER APTER IS
NOT BEING PUNISHED. HE DOESN'T EVEN IDENTIFY HARMS THAT HE HAS SUFFERED AND THE OTHER
ACCIDENTAL HARMS THAT ARE IDENTIFIED BY AMICI THERE IS A QUESTION OF CORRELATION VER VUS
CORRELATION, IT'S NOT CLEAR BECAUSE THEY ARE ON THIS STATE IN THIS STATE AND THE OTHER
STATES. JUSTICE WAINER APTER: ONE OF THE THINGS YOU ARE BARRED FROM APPLYING
FOR PUBLIC HOUSING IF YOU HAVE A LIFETIME REQUIREMENT. JOHN J.
SANTOLIQUIDO: I THINK REJ STRANLTS, THEY ARE DISALLOWED FROM FILING FOR SECTION 8 HOUSING,
FEDERAL PUBLIC HOUSING ASSISTANCE BUT THAT DOESN'T BAR THEM FROM ANY OTHER HOUSING, AND
MEGAN'S LAW ITSELF -- MEGAN'S LAW IS NOT ABOUT WHAT A REGISTRANT CAN'T DO. THE ONLY
PROVISION IN MEGAN'S LAW THAT PROVIDES A RESTRICTION ON REGISTRANT'S IS 2C:7-23 WHERE
REGISTRANT'S CANNOT PARTICIPATE IN YOUTH SERVING ORGANIZATIONS, BUT 2C:7-16 LISTS ALL THE
WAYS THAT REGISTRATION UNDER MEGAN'S LAW CANNOT BE USED AGAINST A REGISTRANT AND THAT
INCLUDES HOUSING AND ACCOMMODATION. JUSTICE WAINER APTER: YOU JUST SAID
IT IS USED AGAINST A REGISTRANT IN HOUSING. L. JOHN J. SANTOLIQUIDO: FOR
SECTION 8 HOUSING BECAUSE THE STATUTE RECOGNIZED EXCEPT AS OTHERWISE PROVIDED BY LAW SO
THE FED FEDERAL GOVERNMENT DIS ALLOWS, THERE IS NO ABILITY FOR OTHER COMMUNITIES OR OTHER
ORSZ TO IMPOSE THOSE RESTRICTIONS. THAT WAS ACTUALLY CONSIDERED BY THE APPELLATE DIVISION
I BELIEVE IN 2008 G H V GALLON WAY TOWNSHIP. IT INVOLVED GALLON WAY AND CHERRY HILL
ORDINANCES THAT PROHIBITED REGISTRANT'S FROM LIVING WITHIN SO MANY FEET OF A PARK, A
PLAYGROUND AND THE COURT IN THAT CASE RECOGNIZED THAT THERE WERE LIKE A HUNDRED MUNICIPALITIES
THROUGHOUT NEW JERSEY THAT HAD ENACTED SIMILAR RESTRICTIONS ON WHERE REGISTRANT'S COULD
LIVE AND THE APPELLATE DIVISION FOUND THAT THAT WAS PREEMPTED, THEY OVER TURNED THOSE
ORDINANCES BY CHERRY HILL AN GALLOWAY FINDING IT WAS PREEMPTED BY MEGAN'S LAW ON A DIFFERENT
BASIS ONE UNDER 2C:7-16 WHERE HOUSING ACCOMMODATION CANNOT BE IMPACTED BY
REGISTRATION SO MEGAN'S LAW DOES NOT TELL REGISTRANT'S WHAT THEY CAN'T DO, AGAIN WITH
THE EX REPRESENTATION CONTRACEPTION OF 2C:20-23 YOUTH SERVING ORGANIZATIONSES.
JUSTICE MICHAEL NORIEGA: YOU AGREE THAT IF SOMEBODY IS IN A POSITION OF APPLYING FOR
SECTION 8 HOUSING THAT THEY MAY NOT HAVE A MULTITUDE OF OPTIONS AVAILABLE TO THEM AND
THAT COULD CAUSE A HARM IN TERMS OF THEM LOCATING SUITABLE HOUSING. JOHN J.
SANTOLIQUIDO: THAT COULD BUT AS THIS COURT RECOGNIZED IN DOE, IF THERE ARE INCIDENTAL
HARMS, BUT THE PURPOSE AND THE IMPLEMENTATION OF THE STATUTE, MEGAN'S LAW IS REMEDIAL
AND NOT PUNITIVE THAT ACCIDENTAL HARMS DO NOT CON VERLT THE STATUTE INTO A PUNITIVE STATUTE.
NOW, WHERE THIS COURT FOUND THERE WAS A PUNITIVE AS SPENT OF MEGAN'S LAW IN
C.K., IT WAS BECAUSE OF THE IR REB BUT TABL PRESUMPTION UN SECTION FWCHLT, THAT
SUBSECTION F WAS A SAFETY VALMONTE, THAT IT PROVIDED AN AVENUE FOR RELIEF AND THAT IS
WHAT HAS CONCERNED THIS COURT AN THE U.S. SUPREME COURT IN THE ROPE PER LINE OF CASES IN
THE PUNISHMENT CONTEXT BUT THAT JUVENILES WOULD NOT BE AFFORDED AN OPPORTUNITY. THIS
JUVENILE WAS. HE STANDS IN A DIFFERENT POSITION. THE COURT: COUNSEL, I
AM AFRAID WE HAVE TO DRAW THE ARGUMENT TO A CLOSE, ANY OTHER QUESTIONS? I
JUST HAVE ONE. JOHN J. SANTOLIQUIDO: YES. THE COURT:
IS THERE ANY REASON TO THINK THE ATTORNEY GENERAL IS UNAWARE OF THIS CONSTITUTIONAL CHALLENGE,
THE A G IN THE FIRST CASE TODAY BUT IS NOT HERE DEFENDING THE CONSTITUTIONALITY OF THE
STATUTE, ANY REASON TO THINK THEY ARE NOT ON NOTICE OF THIS MATTER. JOHN J.
SANTOLIQUIDO: THERE IS NO REASON FOR THE STATE TO BELIEVE THAT THEY ARE NOT ON NOTICE.
I THINK THAT THEY ARE ON NOTICE. I CAN'T ADDRESS WHY THEY DID NOT COME. THE
COURT: I AM NOT ASKING YOU TO. L. JOHN J. SANTOLIQUIDO: THEY ARE AWARE,
YES. JUST TO CONCLUDE, MEGAN'S LAW HAS A REMEDIAL PURPOSE. IT ALWAYS HAS
ENCOMPASSED JUVENILE SUBSECTION F INCLUDED AND IT PROVIDES AN AVENUE FOR RELIEF. THIS
REGISTRANT FAILED TO AVAIL HIMSELF OF THAT, BUT IT WAS AVAILABLE AND THAT IS THE KEY.
IF THERE IS AN AVENUE FOR RELIEF AND THE STATUTE, THE STANDARD IS WHETHER THERE IS A RATIONAL
BASIS IN STATE V. LEN HAN, EVEN IF THE CONSTITUTIONALITY OF A LAW IS FAIRLY
DEBATABLE, THE COURT WILL UPHOLD THE LAW. THE CONSTITUTIONALITY, THE RATIONAL BASIS IS
CLEAR IN THIS MATTER THE STATE RESPECTFULLY ASKS THAT THIS COURT FIND THAT SUBSECTION
F UNDER THESE CIRCUMSTANCES IS APPLICABLE, IS CONSTITUTIONAL AND THE STATE ASKS THAT THIS
COURT AFFIRM THE JUDGMENT OF THE APPELLATE DIVISION. THE COURT: THANK YOU.
MR. MAYNARD, VER BRIEF REBUTTAL. JAMES H. MAYNARD: MUCH WAS
SAID THAT I BELIEVE NEEDS AND DESERVES SOME MENTION OF REBUTTAL SFLFRNLTS FIVE MEANT ON
THE CLOCK, GO RIGHT AHEAD. JAMES H. MAYNARD: MEGAN'S LAW IS NOT PUNITIVE
UNTIL IT IS. THAT MEANS WHEN THE IN FRENGMENTS OF MEGAN'S LAW STOPPED BEING NECESSARY
BECAUSE A PERSON IS NO LONGER A THREAT TO THE SAFETY OF THE PUBLIC, THEN IT TRANSFORMS
THE INFRINGEMENTS OF MEGAN'S LAW FROM REMEDIAL TO PUNISHMENT. SUBSECTION REGARDING
EXPUNGEMENTS, IT, SUBSECTION F SAYS COMMIT, NOT BE CON VIBTD OF AN OFFENSE SO EXPUNGEMENT
IS NOT GOING TO ALLEVIATE THE BAR TO TERMINATION. FRAUL, FIRST OF ALL, EXPUNGEMENT
DOESN'T MEAN THE MATERIAL DISAPPEARS IT GOES AWAY, IT IS IN AN EXPINGED FACILITY,
ACCESSIBLE BY THE STATE. I HAVE MANY PROSECUTORS OPPOSE EXPUNGEMENT BASED ON THINGS THEY
FELT WERE SUBSTANTIAL AND THAT COULD INCLUDE -- ONCE THE PREMISE OF AN EXPINGE MENT ALLOWING
THE TERMINATION OF MEGAN'S LAW BECOMES KNOWN TO THE PROSECUTION, THEY WOULD OPPOSE VIRTUAL
OVER PETITION FOR EXPUNGEMENT. JUSTICE SOLOMON: HE SAID IT IS NOT A BAR.
THE 15-YEAR THE BAR DOESN'T EXIST BUT IT DOESN'T MEAN IT CAN'T BE CONSIDERED AS A FACTOR
IN DETERMINING WHETHER THE DEFENDANT IS A RISK TO THE COMMUNITY, ALL HE SAID WAS IT IS
NOT A BAR. YOU ARE SAYING NOW IT IS A BAR IN ANY EVENT. JAMES H. MAYNARD:
WELL, UNDERSTAND H D, COMMISSION, NOT CONVICTED OF AN OFFENSE, BUT COMMITTING AN OFFENSE
WOULD IMPLICATE THE LIFETIME BAR; THAT'S WHAT WE'RE OPPOSING HERE WITH JUSTICE WAINER APTER
IS THE LIFETIME BAR OF. JUSTICE WAINER APTER: SAY IT ONE MORE TIME. YOU'RE
SAYING -- I HEARD YOU ARGUE THAT THE PROSECUTOR CAN OPPOSE EXPUNGEMENT, BUT IF THERE IS
EXPUNGEMENT YOU'RE STILL SAYING THAT THAT COUNTS AS A CONVICTION FOR THE 15 YEAR.
JAMES H. MAYNARD: IT'S NOT NECESSARILY CONVICTION BUT SUBSECTION F DOESN'T SAY CONVICTED
OF, IT SAYS COMMIT AN OFFENSE. JUSTICE WAINER APTER: SO YOU'RE SAYING THAT
MATTERS FOR PURPOSES OF THE EXPUNGEMENT. JAMES H. MAYNARD: I AM SAYING
YOU MAY POSSIBLE PLEA NOT HAVE AN EXPUNGEMENT FOR SOMETHING THAT WAS COMMITTED BUT NEVER
RESULTED IN HAD A CONVICTION. JUSTICE WAINER APTER: I DON'T MEAN IF THE
PROSECUTOR OPPOSES EXPUNGEMENT, BUT IF IT IS EXPUNGEMENT NEN THE 15-YEAR BAR DOES NOT
APPLY? JAMES H. MAYNARD: I DON'T THINK THAT EXPUNGEMENT -- BECAUSE
EXPUNGEMENTS ARE NOT COMPLETE ELIMINATION OF THE INFORMATION AND BECAUSE THERE IS NO
PROHIBITION FROM A PROSECUTOR OPPOSING THE TERMINATION BASED ON OR THE APPLICATION OF H
D BASED ON A CONVICTION EVEN IF IT WAS EXPUNGED, THERE IS NO LAW THAT SAYS AS WE STAND
HERE NOW THERE IS NOTHING TO ASSURE ME THAT AN EXPUNGEMENT WOULD IN FACT RESULT IN HD
NOT APPLYING TO IMPOSE A LIFETIME BAR AND THERE IS NOTHING TO SAY A PROSECUTOR WOULDN'T
OPPOSE. THE COURT: MR. MAYNARD, I MISSPOKE. I WAS FOCUSED ON THE LANGUAGE
ABOUT AFTER THE 15 YEARS FOLLOWING CONVICTION OR RELEASE, PRIOR TO THAT IT SPEAKS ABOUT
CONVICTION OF AN OFFENSE. JAMES H. MAYNARD: THANKS I'VE HAD TERMINATIONS
OPPOSED BECAUSE OF A COMMISSION OF AN OFFENSE WITHOUT THE CONVICTION. REGARDING
THE DECREASE IN THE SEXUAL OFFENSE STATUTORY TIS PARTICULARS FROM 1994 TO NOW, I WOULD
POSIT TO THE COURT, IF THEY MADE THE PROPER INQUIRY, IN THE SOOIPS, THEY WOULD FIND THAT
A REASON IS BECAUSE PRIOR TO 1994 THERE WERE VERY, VERY FEW SCIENTIFIC STUDIES OF SEX
OFFENSE RECIDIVISM. THEY WERE CONDUCTED JUST A HANDFUL. THEY WERE ALL CONDUCTED ON
EXTREMELY HIGH RISK OFFEND ERS AN THEREFORE THEIR RESULTS WERE HIGH RATE, HIGH RISK OF
RECIDIVISM MENT. SINCE MEGAN'S LAW WAS PASSED, IT SPARKED A GREAT DEAL OF
INTEREST IN OUR SOCIETY AN MASSIVE AMOUNTS OF STUDY THEN OCCURRED SO THERE WAS A LOT MORE
SFUD DEE THAT SHOWED MUCH MORE REALISTIC RATES OF OFFENSE. THE COURT: ONE
MORE MEANT. JAMES H. MAYNARD: THERE IS TOO MUCH. FIST, THE STATE
MISSTATES WHAT THE GREENBERG TEST IS. THE STATE ANY CONCEIVABLE RELATION TO A LEGITIMATE
STATE INTEREST THAT'S THE FEDERAL NATIONAL, IT IS NOT THE NEW JERSEY GREENBERG BERG TEST
UN THE NEW JERSEY CONSTITUTIONALLY TUGS WHICH REQUIRES A REAL AND SUBSTANTIAL.
ALSO, THE CALDWELL STUDY SAID THAT THE 2.75 RECIDIVISM RATE FOR JUVENILES AT THE TIME OF
ADJUDICATION ENDURED WELL PASS PAST 36 MONTHS. REGARDING TIERING, THE VAST
MAJORITY OF POINTS ON THE R R A S ARE FROM THE STATIC FACTORS AND SO THEY DRAMATICALLY
OVERSTATE RISK AND THE R R A S ITSELF STOPS FUNCTIONING AFTER FIVE YEARS BECAUSE THERE IS
NOTHING ON THE R R A S TO ACCOUNT FOR DECREASES IN RISK AFTER FIVE YEARS. SO,
TO SAY THAT AND THE CASE B.B., WHICH WAS ALSO ONE OF MY CASES DETERMINED THAT THE USE
OF THE R R A S SHOULD BE FOR TIERING AT THE INITIAL FACES OF BEING PLACED ON MEGAN'S LAW.
IT SHOULD NOT BE USED IN RELATIONSHIP TO TERMINATIONS SFLFRNLTS COUNSEL, I AM VERY
SORRY WE DON'T HAVE MORE TIME. JAMES H. MAYNARD: ONE MORE SENTENCE IF I
MIGHT. I A CASE PENDING CERTIFICATION BEFORE THIS COURT, M J B THAT HAS MADE
A MOTION FOR A SPECIAL MASTER TO BE APPOINTED. LETTER I BELIEVE, BASED ON THE INTERESTS
OF THE COURT IN ALL OF THESE THINGS AND ON THE TECHNICAL, THE QUANTITY AND TECHNICAL QUALITY
OF ALL OF THESE FACTS, WHICH ARE ALL ESSENTIAL TO DEFRMG AND GETTING ALL OF THESE ISSUES
DETERMINED PROPERLY, WE HAVE MADE A NUMBER OF 104 HEARING REQUESTS FOR 702 EVIDENCE TO BE
ASSESSED AS IT RELATES TO THE R R A S AS IT RELATES TO RECIDIVISM RATES, MOST -- VIRTUAL
ALL DENIED. WE COULDN'T EVEN GET A HEARING, BUT WE HAVE MADE A MOTION TO THIS COURT FOR
THE APPOINTMENT OF A SPECIAL MASTER SFLFRNLTS WE CAN'T RESOLVE THAT IN THIS CASE.
JAMES H. MAYNARD: NO, BUT I AM LETTING YOU KNOW FOR THIS CASE AND ALL OF THE QUESTIONS
THAT THE COURT HAD, REALLY GREAT QUESTIONS THAT MUST BE ANSWERED TO PROPERLY ADJUDICATE,
I BELIEVE, THAT A SPECIAL MASTER PROCESS AS IN THE CHILD SEXUAL ABUSE COMBINATION SYNDROME
SITUATION, WOULD YIELD THE EVIDENTIARY RECORD ADEQUATE TO RESPOND TO EVERY QUESTION I
HEARD THE COURT ASK TODAY AND IT WOULD ALLOW THOSE ADJUDICATIONS, THANK YOU VERY MUCH.
THE COURT: THANK YOU COUNSEL AND THANK YOU