HAVE APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.) CHIEF
JUSTICE RABNER: WELL KOL COUNSEL, MISS ANDERSON, PLEASE GO AHEAD. APPELLANT:
GOOD AFTERNOON YOUR HONORS, AND MAY IT PLEASE THE COURT. I WOULD LIKE TO RESERVE SOMETIME
FOR REBUTTAL IF NECESSARY. CHIEF JUSTICE RABNER: THAT'S FINE.
APPELLANT: THANK YOU. IT BEARS REPEATING THAT ASSIST RECOGNIZED BY THIS COURT, THE PURPOSE
OF THE ENTIRE MEGAN'S LAW SCHEME OF REGISTRATION AND NOTIFICATION INCLUDING SUBSECTION
G WAS TO PROTECT THE PUBLIC SAFETY. IN 1994, MAY GO BEGAN KANG KA WAS BRUTALLY RAPED
AND MURDERED BY JES SEE TESTIMONY MEN TODAY KWAS A PREVIOUSLY CONVICTED SEX OFFENDER WHO
MOVED INTO HER NEIGHBORHOOD, MEGAN'S LAW WAS ENACTED TO PREVENT SIMILAR TRAGEDIES FROM
OCCURRING IN THE FUTURE BY GIVING LAW ENFORCEMENT AND IN SOME CASES THE PUBLIC INFORMATION
REGARDING THE WHEREABOUTS OF SEX OFFENDERS, THEREFORE IN NEW JERSEY, SEX OFFENDERS MUCH
RETCHES STRAY FOR MEGAN'S LAW FOR LIFE UNLESS THEY MAY SEEK TERMINATION OF THEIR
REGISTRATION REQUIREMENTS UNDER NARROW EXCEPTIONS UNDER 2C 7-F, SUBSECTION F, IN DOVER
VERSUS PORITZ, THIS COURT SAID THE REGISTRATION AND NOTIFICATION LAWS ARE NOT RET TRI
BECAUSE TESTIFY LAWS BUT ARE LAWS DESIGNED TO GIVE PEOPLE A CHANCE TO PROTECT THEMSELF
GOES AND THEIR CHILDREN. THEY DO NOT RECOGNIZE THE SLIGHTEST DEPARTURE FROM STATE'S OR
OUR KOURN'S BELIEF THAT CRIMINALS CONVICTED AND PUNISHED HAVE PAID THEIR DEBT TO SOCIETY
AND ARE NOT TO BE PUNISHED FURTHER, THEY REPRESENT ONLY THE CONCLUSION THAT SOCIETY
HAS THE RIGHT TO KNOW OF THEIR PRESENCE NOT IN ORDER TO PUNISH THEM BUT IN ORDER TO PROTECT
ITSELF. THE LAW RECOGNIZES A CONCLUSION BY THE LEGISLATURE THAT THOSE CONVICTED SEX
OFFENDERS WHO APPARENTLY SUCCESSFULLY HAVE BEEN INTEGRATED INTO THEIR COMMUNITIES ADJUSTED
THEIR LIVES SO AS TO APPEAR NO MORE THREATENING THAN THE REST OF SOCIETY ARE ENTITLED
NOT TO BE DISTURBED SIMPLY BECAUSE OF THAT PRIOR OFFENSE AND CONVICTION BUT A CONCLUSION
AS WELL THAT THE CHARACTERISTICS OF SOME OF THEM AND THE STATISTICAL INFORMATION CONCERNING
THEM MAKE IT CLEAR THAT DESPITE SUCH INTEGRATION RE-OFFENSE IS A REALISTIC RISK AND KNOWLEDGE
OF THEIR PRESENCE A REALISTIC PROTECTION AGAINST IT. I WOULD LIKE TO EMPHASIZE 3 POINTS
FOR YOUR HONORS THIS AFTERNOON. FIRST, THE PLAIN LANGUAGE CHOSEN IN SUBSECTION G, SPECIFICALLY
THE PHRASE HAS BEEN CONVICTED, DEMONSTRATE'S THE LEGISLATURE'S INTENT TO APPLY SUBSECTION
G TO THOSE OFFENDERS WHO WERE CONVICTED BEFORE ITS PASSAGE IN 2002. SIMPLY PUT, ON THE
DAY THAT SUBSECTION G BECAME EFFECTIVE IT IMMEDIATELY APPLIED TO ANY OFFENDER WHO HAD
BEEN CONVICTED, ADJUDICATED DELINQUENT OR ACQUITTED BY REASON OF I KNOW SANDER OF A
RETCHES STRABL OFFENSE, THE REGISTRANTS IN THESE CASES AND THOSE SIMILARLY SITUATED FIT
THAT CRITERIA. THIS COURT THEREFORE NEED NOT LOOK BEYOND THE PLAIN LANGUAGE OF SUBSECTION
G TO RESOLVE THE ISSUE BEFORE IT TODAY. SECOND, THE LEGISLATURE IS ENTITLED
TO AMEND OR CHANGE THE LAWS IT ENACTS AT ANY TIME AS IT DID IN THIS CASE. DESPITE THE
ASSERTION THAT THE LEGISLATURE BELIEVED MEGAN'S LAW AS ORIGINALLY ENACTED IN 1994 FULLY
SATISFIED ITS PUBLIC SAFETY OBJECTIVES, EVEN THOUGH IT PERMITTED POTENTIAL RELIEF FROM
REGISTRATION REQUIREMENTS, THE LEGISLATURE CLEARLY AMENDED THE STATUTE TO PROVIDE FOR
CERTAIN OFFENDERS NOT TO BE ALLOWED TO SEEK TERMINATION. A BENEFIT THAT WAS NEVER
GUARANTEED TO ANY OFFENDER. JUST AS THE EXTENDED STATUTE OF LIMITATIONS FOR AGGRAVATED
SEXUAL ASSAULT FOR A MINOR UNDER 13 WERE HELD TO APPLY TO A DEFENDANT WHOSE TIME UNDER
THE ORIGINAL STATUTE OF LIMITATIONS HAD NOT YET RUN IN NAG GEL, SO TO HERE, THE REGISTRANTS
IN THESE CASES WERE NOT ELIGIBLE FOR TERMINATION UNTIL WELL AFTER SUBSECTION G HAD BECOME
LAW. THEREFORE, SUBSECTION G SHOULD APPLY TO THEM. FINALLY, NO MANIFEST
INJUSTICE OCCURS BY APPLYING SUBSECTION G TO REGISTRANTS WHO LIKE G.H. AND G.A. WERE
CONVICTED AND PLACED ON MEGAN'S LAW BEFORE ITS ENACTMENT IN 2002. AT NO TIME WERE THESE
REGISTRANTS OR INDEED ANY REGISTRANT IN THEIR POSITION UNDER THE IMPRESSION THAT
TERMINATION FROM REGISTRATION WAS GUARANTEED. AGAIN, UNDER NEW JERSEY LAW, IT HAS ALWAYS
BEEN TRUE THAT ALL OFFENDERS MUST REGISTER UNDER MEGAN'S LAW FOR LIFE UNLESS THEY CAN
DEMONSTRATE BY PEFD THAT THEY MEET THE NARROW EXCEPTION CARVED OUT BY THE LEVENS LASER
IN F. THIS IS A NON PUNITIVE MEASURE DESIGNED FOR PUBLIC SAFETY AND DOES NOT POSE AN
UNDUE BURDEN ON REGISTRANTS. INDEED THE ONLY THING THEY ARE REQUIRED TO DO UNDER MEGAN'S
LAW IS REGISTER WITHIN A CERTAIN AMOUNT OF TIME WITH LOCAL LAW ENFORCEMENT AND PROVIDE
NOTICE TO LAW ENFORCEMENT IF ANY OF THE INFORMATION REQUESTED CHANGES.
JUSTICE TIMPONE: BY WHY ISN'T A MANIFEST INJUSTICE TO DENY THEM THE POSSIBILITY OF
TERMINATION WHICH IS WHAT BEFORE G CAME OUT WAS THE CASE, AND AT THE TIME THAT THEY ENTERED
THEIR PLEAS. APPELLANT: FOR SEVERAL REASONS, YOUR HONOR, I'M SPECIFICALLY
NOW GOING TO TALK ABOUT 4 REASONS. FIRST, THIS COURT IN DOE VERSUS PORITZ SANCTIONED
THE APPLICATION OF MEGAN'S LAW ITSELF, THE ENTIRE REGISTRATION SCHEME TO OFFENDERS WHO
WHEN THEY PLEAD GUILTY OR WERE CONVICTED OF THEIR OFFENSE DID NOT KNOW ABOUT MEGAN'S LAW
BECAUSE IT DID NOT EXIST AT THE TIME. SO IF -- AND THE -- THIS COURT MADE VERY CLEAR
WHY. JUSTICE ALBIN: YOU SAID IT WAS REMEDIAL. APPELLANT:
CORRECT, CORRECT. JUSTICE ALBIN: BUT WE SAID IT WAS REMEDIAL IN THE CONTEXT
OF THEN SUBSECTION F WHICH SAID THAT ALTHOUGH WE HAVE LIFETIME ( REGISTRATION, A PERSON
WHO WAS OFFENSE FREE FOR 15 YEARS CAN APPLY FOR REMOVAL PROVIDED THAT HE OR SHE IS NOT
LIKELY TO POSE A THREAT TO THE SAFETY OF OTHERS. APPELLANT: CORRECT, YOUR HONOR,
SO BUT THE OVER AFTERNOONING FIRST POINT OF MY RESPONSE BEING THAT IF THE ENTIRE MEGAN'S LAW
REGISTRATION SCHEME CAN APPLY TO SOMEBODY WHO DID NOT KNOW THEY WOULD BE SUBJECT TO IT
AT THE TIME THEY WERE CONVICTED, IT WOULD BE NO DIFFERENT HERE THAN APPLYING SUBSECTION
G TO REGISTRANTS LIEBLG G.H. AND G.A. WHO WERE CONVICTED PRIOR TO SUBSECTION G'S ENACTMENT
IN 2002. THE SECOND REASON IS THAT THE SECOND, TERMINATION FROM MEGAN'S LAW
AS I SAID WAS NEVER GUARANTEED TO ANY OFFENDER. WHEN MEGAN'S LAW WAS FIRST ENACTED IN
1994, SUBSECTION F ONLY CARVED OUT A VERY NARROW EXCEPTION, NOT ONLY DOES A PERSON HAVE
TO BE OFFENSE FREE, WHICH MEANS AS THIS COURT RE AFFIRMED IN I BELIEVE IT WAS A D, OFFENSE,
NOT CRIME, NOT SEX OFFENSE, BUT ANY OFFENSE AS DEFINED IN THE CRIMINAL CODE, THEY ALSO
HAD TO DEMONSTRATE THAT THEY WERE NOT GOING TO POSE A THREAT TO THE SAFETY OF OTHERS.
AND ESPECIALLY GIVEN THE PEOPLE WHO ARE SUBJECT TO REGISTRATION UNDER SUBSECTION G, THIS IS
NOT A FOR GONE CONCLUSION BECAUSE THESE ARE THE OFFENDERS WHO HAVE COMMITTED MORE THAN
ONE SEX OFFENSE, THE MOST SERIOUS SEX OFFENSES. CHIEF JUSTICE RABNER: WELL
PAROLE IS NOT A FOR GONE CONCLUSION EITHER, CAN PATROL BE REPEALED EVEN THOUGH INDIVIDUALS
AT THE TIME THEY PLEAD GUILTY HAD IN MIND THAT THEY MIGHT ONE DAY QUALIFY FOR IT.
APPELLANT: YOUR HONOR BRINGS UP A GOOD DISTINCTION, IN THAT CASE PAROLE, AND I WOULD
ANALOGIZE UNDER THE MEGAN'S LAW UNDER THE SEX OFFENDER CON TEKT COMMUNITY SUPERVISION FOR
LIFE, PAROLE SUPERVISION FOR LIFE IS VERY CLEARLY DISTINCT FROM MEGAN'S LAW WHICH IS NON
PUNITIVE IN NATURE, ALL OF THE RESTRICTIONS THAT MIGHT BE ASSOCIATED WITH MEGAN'S LAW
ARE ACTUALLY PART OF IF AN OFFENDER IS SUBJECT TO COMMUNITY SUPERVISION FOR LIFE OR PAROLE
SUPERVISION FOR LIFE. JUSTICE ALBIN: YOU'RE SAYING IT'S NON PUNITIVE.
APPELLANT: RIGHT, MEGAN'S LAW -- JUSTICE ALBIN: SO WE KNOW DOE VERSUS PORITZ
SAID F WAS NOT PUNITIVE, F HAD ARE A 15 YEAR I'LL CALL IT BUY OUT, PROVIDED A PERSON IS
OFFENSE FREE FOR 15 YEARS AND NO LONGER POSED A DANGER TO THE PUBLIC. HERE WE HAVE
POTENTIALLY PEOPLE WHO AFTER 15 YEARS, OKAY, WILL POSE NO DANGER TO THE PUBLIC WHATSOEVER,
WILL BE FULLY REHABILITATED, AND YET WILL BE SUBJECT TO THIS REGISTRATION SCHEME. WHAT
REMEDIAL PURPOSE DOES THAT SERVE AND WHY ISN'T -- WHY DOESN'T THAT CONSTITUTE A PUNITIVE
ACT WHEN IT HAS NOTHING TO DO WITH PUBLIC SAFETY OR REHABILITATION. APPELLANT:
TWO POINTS IN RESPONSE TO YOUR HONOR'S QUESTION. FIRST OF ALL, THE LEGISLATURE DETERMINED
THAT THIS WAS THE POLICY FOR THESE CERTAIN OFFENDERS WHO AGAIN WERE -- HAVE COMMITTED
MORE THAN ONE SEX OFFENSE OR HAVE COMMITTED THE MOST AGGREGIOUS SEX OFFENSES. I'D LIKE
TO ALSO MAKE VERY CLEAR THE NON PUNG TESTIFY NATURE BY JUST REITERATING WHAT IS REQUIRED
BY MEGAN'S LAW. MEGAN'S LAW DOES NOT RESTRICT WHERE AN OFFENDER LIVES. AN OFFENDER CAN BE
ON MEGAN'S LAW AND LIVE NEXT DOOR TO AN ELEMENTARY SCHOOL. AN OFFENDER IS NOT
RESTRICTED AS TO WHERE THEY WORK, THE ONLY RESTRICTION PLACED ON THIS IN MEGAN'S LAW IS
THAT THEY CANNOT BE APART OF A YOUTH SERVING ORGANIZATION. JUSTICE ALBIN:
WHAT IS -- AFTER THE THE OFFENDER HAS BEEN TOTALLY REHABILITATED, ASSUME THAT, OKAY, AND
NO LONGER POSES ANY DANGER TO THE PUBLIC AS WOULD BE DETERMINED BY A JUDGE, WHY IS THE
REMAINING REMEDIAL PURPOSE? AS OPPOSED TO PUNITIVE? HOW COULD THAT NOT BE CONSIDERED
PUNITIVE? APPELLANT: BECAUSE THE A, THE BURDEN IS PLACED -- THERE'S NO
UNDUE BURDEN ON THE OFFENDER, ALL OF THE RESTRICTIONS THAT MIGHT MAKE SOMETHING
PUNITIVE ARE NOT BASED ON MEGAN'S LAW, THEY'RE BASED ON COMMUNITY SUPERVISION FOR LIFE.
JUSTICE ALBIN: I'M GOING TO QUOTE SOMETHING FROM C K AND I KNOW IT'S FOR
JUVENILES SO IT'S DISTINCT FROM THIS BUT I JUST WANT YOU TO COMMENT ON IT WITH RESPECT
TO THIS LINE OF QUESTIONING, SO HE SAID THIS, WHEN IN THE CASE OF JUVENILES THE REMEDIAL
PURPOSE OF MEGAN'S LAW, REHABILITATION OF THE DEFENDANT AND PROTECTION OF THE PUBLIC IS
SATISFIED, THEN THE CONTINUED CONSTRAINTS ON THEIR LIVES AND LIBERTY PURSUANT TO
SUBSECTION G, LONG AFTER THEY HAVE BECOME ADULTS TAKES ON A PUNITIVE ASPECT THAT CANNOT
BE JUSTIFIED BY OUR CONSTITUTION. NOW I KNOW THAT WE SAID THAT WITH RESPECT TO JUVENILES
BUT AT LEAST WITH RESPECT TO EX POST FACT FOE, RETROACTIVITY, WHY ISN'T THAT TRUE HERE,
WRY DOESN'T IT HAVE THE SAME PENAL STINK FOR AN ADULT WHO HAS BEEN THOROUGHLY REHABILITATED
AND FOUND TO BE NOT A DANGER TO THE PUBLIC. GO AHEAD. APPELLANT: AGAIN,
TWO RESPONSES. FIRST OF ALL, JUST TO BE CLEAR, THE POLICY BEHIND MEGAN'S LAW IS NOT FOR
REHABILITATION OF THE OFFENDER, IT IS TO -- IT IS FOR THE PROTECTION OF THE PUBLIC, SO
THEREFORE IT IS NOT DEPENDENT ON THE REHABILITATION OF THE OFFENDER.
THE COURT: CAN I STOP YOU THERE, YOU BEGAN YOUR ARGUMENT THERE AND AN OVERARCHING STATEMENT
AS WELL THAT THIS IS ABOUT PUBLIC SAFETY, HOW IS THAT AIM DEFEATED IF AN INDIVIDUAL AS
TO WHO THERE HAS BEEN A FINDING IS NOT LIKELY TO POSE A THREAT NO LONGER REPORTS?
APPELLANT: AGAIN, I WOULD POINT OUT, YOUR HONORS, THAT THIS IS A DETERMINATION THAT IS
MADE BY THE LEGISLATURE THAT THESE SPECIFIC CLASS OF OFFENDERS, WHO HAVE A COMMITTED MORE
THAN ONE SEX OFFENSE, AND B, OR B, COMMITTED THE COUPLE OF VERY SERIOUS OFFENSES ENUMERATED
IN SUBSECTION G, CONTINUE TO APPLY FOR LIFE WHICH WAS ALWAYS THE DEFAULT IN THIS STATE.
CHIEF JUSTICE RABNER: SO WE KNOW THAT THE LEGISLATURE HAS INCLUDED THIS FOR
THE PURPOSES I UNDERSTAND IT OF PROTECTING FEDERAL FUNDING. YOU'RE ARGUING PUBLIC SAFETY,
AND MY QUESTION IS HOW IS PUBLIC SAFETY UNDERMINED IF THE LAST CLAUSE OF F THAT THIS
PERSON IS NOT LIKELY TO POSE A THREAT HAS BEEN DEMONSTRATED. APPELLANT: AND
AGAIN, TO KIND OF TIE THIS TOGETHER WITH YOUR HONOR'S QUESTION, THE -- IN TERMS OF THE
FUNDING, THE LEGISLATURE COULD HAVE CHOSEN TO EITHER MAKE THIS APPLICABLE TO OFFENDERS
WHO WERE CONVICTED AFTER SUBSECTION G WAS ENACTED OR BEFORE SUBSECTION G WAS ENACTED TO
KEEP FEDERAL FUNDING AND BY THE PLAIN LANGUAGE THAT THEY CHOSE IN THE STATUTE, HAS BEEN
CONVICTED, THEY MADE THE PUBLIC SAFETY DETERMINATION THAT THESE OFFENDS, EVEN IF
THEY WERE CONVICTED BEFORE SUBSECTION G WAS ENACTED, THAT THE PUBLIC SAFETY NEEDS SHS,
NECESSITATES KNOWING, LAW ENFORCEMENT KNOWING WHERE THESE OFFENDERS ARE.
JUSTICE TIMPONE: BUT YOU'RE READING THAT INTO G, THERE'S CERTAINLY NOTHING IN THE LEGISLATIVE
HISTORY THAT SUPPORTS THAT. APPELLANT: YOUR HONOR, THE LEGISLATIVE
HISTORY IS A LITTLE BIT SPARSE, I WILL SAY, BUT WE DON'T NEED TO GET THERE BECAUSE THE
PLAIN LANGUAGE PLUS THE FACT THAT THIS BECAME IMMEDIATELY EFFECTIVE MEANS THAT ON THE
DAY THAT SUBSECTION G BECAME EFFECTIVE IT APPLIED TO ANY OFFENDER WHO HAS BEEN CONVICT
ED, NOT IS CONVICTED, NOT WILL BE CONVICTED, BUT HAS BEEN CONVICTED, AND SO THEREFORE IT
APPLIED JUST BASED ON THE FACE OF THE LANGUAGE CHOSEN ITSELF, TO OFFENDERS LIKE G.H. AND
G.A. WHO WENT SUBSECTION G BECAME ENACTED HAD BEEN CONVICTED OF THESE QUALIFYING OR D
ISQUALIFYING FROM OFFENSES. JUSTICE PATTERSON: IS THE JUDGEMENT THAT IT
MIGHT BE WRONG IN THE ASSESSMENT, ISN'T THAT WHAT IT COMES DOWN TO. APPELLANT:
THAT IS CERTAINLY A POSSIBILITY, YOUR HONOR, AND I WOULD SAY THE PUBLIC SAFETY AS WELL,
THESE TYPES OF CRIMES ARE VERY UNDERREPORTED AS WE HAVE SEEN BASED ON THE PUBLIC NEWS,
YOU KNOW, THE NEWS CYCLE FOR THE PAST I WOULD SAY FEW YEARS HAS, YOU KNOW, CASE AFTER
CASE WHERE, YOU KNOW, THESE CRIMES CAN VERY MUCH GO UNDERREPORTED AND SO AGAIN, A
DETERMINATION BY THE LEGISLATURE THAT THESE OFFENDERS SPECIFICALLY THOSE WHO EITHER
COMMITTED THE TWO PREDICATE SEX OFFENSES MENTIONED OR MORE THAN ONE SEX OFFENSE, WE WANDER
TO KNOW WHERE THEY ARE. AND IF I JUST CAN GO BACK TO AGAIN -- JUSTICE
TIMPONE: IF I CAN INTERRUPT YOU. APPELLANT: YES, YOUR HONOR.
JUSTICE TIMPONE: IF WE APPLY THIS PROSPECTIVELY ISN'T THE QUESTION OF PUBLIC SAFETY MOOT?
SO WE HAVE A SMALL BODY OF PEOPLE WHO ARE GOING TO BE -- WHO BEFORE G WOULD HAVE BEEN
-- COULD AVAIL THEMSELVES OF THE 15 YEARS AND NO FURTHER REGISTRATION. AFTER THAT, ACCORDING
TO THIS ELEVENS LADIES AND GENTLEMEN, ANYTHING GOING FORWARD THERE WILL BE NO 15 YEAR
LOOK AND G WILL APPLY. SO WE'RE JUST TALKING ABOUT A SMALL BODY OF PEOPLE WHO ENTERED
GUILTY PLEAS BASED ON THE KNOWLEDGE THAT AFTER 15 YEARS THEY HAD THE POSSIBILITY OF APPEARING
BEFORE A JUDGE AND GETTING TAKEN OFF ANY REGISTRATION OBLIGATIONS.
APPELLANT: YOUR HONOR, JUST TO PICK UP ON YOUR QUESTION, I WOULD ALSO NOTE THAT AT NO
TIME WAS TERMINATION GUARANTEED TO ANY OFFENDER AND IN FACT IF YOU LOOK AT THE PLEA FORMS
THAT ARE USED FOR MEGAN'S LAW OFFENDERS EVEN GOING BACK TO WHEN G.H. AND G.A. WERE CONVICT
ED OF THEIR OFFENSES, THEY DO NOT MENTION ANYTHING THAT I CAN SEE ABOUT TERMINATION, SO
THERE WAS NEVER EVEN A MENTION IN THE PLEA NEGOTIATIONS OF WELL, YOU MIGHT BE ABLE TO
TERMINATE AFTER 15 YEARS, IT WAS STRICTLY DO YOU UNDERSTAND THAT YOU WILL HAVE TO REGISTER
UNDER THIS ACT. AND I WILL ALSO POINT OUT IN RESPONSE TO YOUR HONOR'S QUESTION THAT
OBVIOUSLY MEGAN'S LAW IS NOT NEGOTIABLE AS PART OF THE TIMEFRAME IN WHICH TO REGISTER,
DOES NOT FACTOR INTO PLEA NEGOTIATIONS, EITHER YOU WERE ON MEGAN'S LAW OR YOU WERE NOT.
JUSTICE FERNANDEZ-VINA: WHY DON'T WE ADDRESS THE PLAIN LANGUAGE OF 2G, IT
SAYS HAS BEEN CONVICTED, NOT IS TO BE CONVICTED, HAS BEEN, SUGGESTS PAST TENSE, HOW DO
WE ADDRESS THAT UNDER THE INTERPRETATION THAT THE DEFENDANTS SEEK. APPELLANT:
WELL, YOUR HONOR, I BELIEVE THAT IN THE APPELLATE DIVISION DECISION THE PANEL ACKNOWLEDGED
THAT THE USE OF THIS LANGUAGE INDICATES THAT IT APPLIES TO AN EVENT THAT HAS ALREADY
HAPPENED, MEANING THE CONVICTION, SO I WOULD AGREE WITH YOUR HONOR'S ASSESSMENT THAT BY
THE PLAIN LANGUAGE ITSELF, THIS APPLIES TO ANYONE WHO ON THE DATE THAT IT IMMEDIATELY
BECAME EFFECTIVE -- JUSTICE FERNANDEZ-VINA: IF THE PLAIN LANGUAGE IS
CLEAR AND UNAMBIGUOUS DO WE NEED TO GET TO THE LEGISLATIVE HISTORY, ISN'T THAT WHERE THE
INQUIRY ENDS. APPELLANT: I WOULD AGREE WITH THAT, YOUR HONOR, I DO NOT THINK
LEGISLATIVE INTENT IS NECESSARY TO ANSWER THIS QUESTION, I THINK IT'S ANSWERABLE ON THE
FACE OF THE LANGUAGE CHOSEN BY THE LEGISLATURE ITSELF. JUSTICE LAVECCHIA:
DO YOU CONCEDE THAT IN THE PAST WHENEVER THE LEGISLATURE HAS USED EFFECTIVE DATE LANGUAGE
THAT SAYS THIS ACT SHALL TAKE EFFECT IMMEDIATELY, THAT THAT LANGUAGE HAS BEEN GIVEN PROSPECTIVE
EFFECT. APPELLANT: CERTAINLY IN GENERAL LAWS ARE READ TO BE PROSPECTIVE,
BUT I WOULD ALSO EMPHASIZE THAT THE -- WE'RE TALKING ABOUT RETCHES REGISTRANTS WHO ALREADY
ARE ON MEGAN'S LAW, SO THE QUESTION IS TERMINATION, AND THEREFORE THE EVENT THAT
THIS SUBSECTION DEALS WITH HAS NOT OCCURRED YET. JUSTICE LAVECCHIA: WELL
THAT'S WHERE THERE'S MAYBE SOME AMBIGUITY, BUT THE APPELLATE DIVISION DECISION POINTS
OUT -- AND WE KNOW THAT G WAS ADDED BY OUR LEGISLATURE TO ENSURE NEW JERSEY'S COMPLIANCE
WITH FUTURE FEDERAL FUNDING, THAT THE FEDERAL LAW DID NOT REQUIRE STATES TO IMPOSE REGISTRATION
REQUIREMENTS INCLUDING THIS ONE RETROACTIVELY OR TO -- THAT THEY COULDN'T CHANGE WHAT
THEY HAD, AT PAGE 21 OF AT LEAST THE SLIP OPINION THEY CITE A 9TH CIRCUIT OPINION THAT
RECOGNIZED THAT THE FEDERAL GOVERNMENT WAS INTERESTED IN FUTURE APPLICATIONS OF THIS NO
ELIMINATION OF REGISTRATION REQUIREMENT FOR PERSONS CONVICTED TWICE OR MORE.
APPELLANT: CORRECT, YOUR HONOR. CERTAINLY I WOULD NOT DISPUTE THAT UNDER FEDERAL FUNDING,
FOR THE PURPOSES OF FEDERAL FUNDING, THE FEDERAL GOVERNMENT GAVE STATES THE OPTION TO
CHOOSE. JUSTICE LAVECCHIA: RIGHT, SO IF THE LEGISLATURE WAS DOING IT FOR
THE PURPOSE OF, OUR LEGISLATURE WAS DOING THIS AMENDMENT FOR THE PURPOSE OF ENSURING FEDERAL
FUNDING KNOWING THAT THE FEDERAL GOVERNMENT DIDN'T REQUIRE THIS ILLUMINATION OF THIS BACK
LOOK, WHY IS IT SO CLEAR THAT THE WHO HAS BEEN CONVICTED LANGUAGE WAS MEANT TO BE APPLIED
THE WAY THAT YOU'RE SUGGESTING. APPELLANT: THANK YOU, YOUR HONOR, THAT --
I UNDERSTAND YOUR QUESTION, AND I WOULD POINT TO THE LANGUAGE IN SUBSECTION A OF MEGAN'S LAW,
WHICH IS THE EXACT SAME LANGUAGE USED AND WHICH THIS COURT IN -- WHICH HAS BEEN GIVEN
AFFECT TO APPLY THE REGISTRATION SCHEME IN DOE VERSUS PORITZ TO THOSE OFFENDERS THAT HAVE
BEEN CONVICTED PRIOR TO MEGAN'S LAW BEING EEFBT I HAVE. JUSTICE LAVECCHIA:
WELL 7.2 B-1 SHOWS THAT THE LEGISLATURE KNEW HOW TO ADD THE ADDITIONAL LANGUAGE THAT SAYS
REGARDLESS OF WHEN THE ADDITIONAL OFFENSE OCCURRED, THEY KNEW HOW TO BE SPECIFIC ABOUT
TIME CONVICTIONS WHEN THEY WANTED TO DO. APPELLANT: SO I THINK THE DISTINCTION
IS THAT SUBSECTION A DEFINES WHO HAS THO REGISTER, IT'S WHO HAS BEEN CONVICTED OF A
SEX OFFENSE AS DEFINED IN SUBSECTION B, AND IN B-1, IN SUBSECTION B, YOUR HONOR IS RIGHT,
THE LEGISLATURE DOES POINT TO DIFFERENT TIMEFRAMES AND EFFECTIVE DATE AND REGARDLESS
OF THE COMMISSION OF THE OFFENSE OR DATE OF CONVICTION. HOWEVER, THAT IS DEALING WITH
WHO HAS TO REGISTER AT ALL, IT WOULDN'T MAKE SENSE IN TERMS OF A SUBSECTION THAT TALKS
ABOUT TERMINATION TO BREAK IT DOWN IN THAT SAME WAY BECAUSE WE'RE NOT TALKING -- YOU KNOW,
EVERYONE WHO IS LOOKING AT SUBSECTION G HAS ALREADY BEEN PLACED ON MEGAN'S LAW AND IT'S
JUST A QUESTION OF. JUSTICE LAVECCHIA: WELL G IS GOING TO APPLY
INDEFINITELY INTO THE FUTURE AS LONG AS IT REMAINS ON THE BOOKS, SO IT HAS TO READ WHO
HAS BEEN CONVICTED, DOESN'T IT? WHAT OTHER TENSE WOULD YOU USE. APPELLANT:
NO, YOUR HONOR, IF THE LEGISLATURE WANTED TO APPLY IT TO SEX OFFENDERS WHO HAD BEEN
CONVICTED AFTER 2002 THEY MAY HAVE USED LANGUAGE THAT SAID, YOU KNOW, HAS BEEN CONVICT
ED AS OF THE EFFECTIVE DATE. JUSTICE FERNANDEZ-VINA: HOW ABOUT WHO IS CONVICT
ED. APPELLANT: OR WHO IS CONVICTED. JUSTICE PATTERSON: IT WOULD BE
MORE LIKE WHO WAS CONVICTED FOLLOWING THE EFFECTIVE DATE OF THIS STATUTE WOULD BE THE
LANGUAGE THAT YOU -- PLFATTY: CORRECT, YOUR HONOR, CORRECT, YOUR HONOR.
AND SO IN LOOKING AT THE RETROACTIVE APPLICATION OF MEGAN'S LAW TO OFFENDERS WHO HAD
PREVIOUSLY NOT KNOWN THAT THEY WOULD BE SUBJECT TO IT, ALONG WITH THE PLAIN WORD CHOICE,
THE LEGISLATURE'S INTENT WAS CLEAR TO APPLY THIS TO ANY OFFENDER WHO WHEN THIS BECAME
IMMEDIATELY EFFECTIVE WHO HAS BEEN CONVICTED AND CERTAINLY G.H. AND G.A. AND REGISTRANTS
SIMILARLY INTATED FIT THAT CRITERIA. JUSTICE ALBIN: COULD I ASK YOU A QUESTION
WITH RESPECT TO A-1 AND B-1, IF A-1 IS RETROACTIVE LANGUAGE, AND THAT'S WHAT YOU
ARGUE, RIGHT, A-1. APPELLANT: YES, YOUR HONOR. JUSTICE ALBIN:
ALL RIGHT, WHY WAS IT NECESSARY FOR THE LEGISLATURE IN B-1 TO AT THE LANGUAGE
REGARDLESS OF THE DATE OF THE COMMISSION OF THE OFFENSE OF THE DATE OF CONVICTION, I'M
TRYING TO FIGURE OUT LIKE WHY WOULD THE LEGISLATURE HAVE DONE THAT.
APPELLANT: BUT SUBSECTION A TALKS ABOUT WHO MUST REGISTER UNDER THIS ACT, AND SO SUBSECTION
B -- JUSTICE ALBIN: SO A IS SAYING EVERYONE PASS AND PRESENT. RIGHT?
APPELLANT: CORRECT, CERTAIN IT'S THE SAME LANGUAGE, HAS BEEN CONVICTED.
JUSTICE ALBIN: OKAY, SO WHAT DOES B-1 ADD? TO THE CLASS OF PEOPLE BEFORE
AND AFTER. APPELLANT: BECAUSE, YOUR HONOR, SUBSECTION B DEFINES WHO HAS
TO -- WHO HAS TO REGISTER AND SO SUBSECTION B IS ALSO TALKING ABOUT WHO HAS TO START TO
REGISTER AND I THINK, YOU KNOW, THIS COURT DID MAKE A DETERMINATION THAT, YOU KNOW,
CERTAINLY NOT EVERY SINGLE OFFENDER -- JUSTICE ALBIN: LOOK, TELL ME IF I'M
MISTAKEN, EVERYONE IN A-1 IS IN B-1. YES? IS THERE ANYONE IN A-1 THAT'S NOT IN B-1?
THE CLASS OF A-1 IS B-1 AS WELL, INCLUDES IT. APPELLANT: HE CAN'T KR, CORRECT.
JUSTICE ALBIN: OKAY. SO A HAS HAS BEEN CONVICTED, YOU'RE SAYING THAT T THAT IS
RETROACTIVE, I'M TRYING TO FIGURE OUT IN B-1 WHY IN THAT CATEGORY WHICH INCLUDED CHARACTERIZED
BY A PATTERN OF REPETITIVE COMPULSIVE BEHAVIOR, THAT THEY SPECIFICALLY SAID REGARDLESS
OF THE DATE OF THE COMMISSION OF THE OFFENSE OF THE DATE OF CONVICTION.
APPELLANT: CORRECT, AND I THINK AGAIN THE DISTINCTION IS BECAUSE SUBSECTION B IS
TALKING ABOUT REGISTERING IN THE FIRST PLACE VERSUS TERMINATION SO. JUSTICE
ALBIN: ONE CAN ASHTHD LOOKING AT A-1 AND B-1, THAT THE LEGISLATURE WANTED TO MAKE CERTAIN
THAT THE PEOPLE WHO WERE ENGAGED IN A PATTERN OF REPETITIVE COMPULSIVE BEHAVIOR, THOSE
PEOPLE, REGARDLESS OF THE DATE OF THE OFFENSE, YOU'RE ON THE REGISTRY, AND ACTUALLY
DISTINGUISHING IT FROM THE GENERAL PEOPLE IN A-1, NO? ISN'T THAT A COMMON SENSE INTERPRETATION
OF THE LANGUAGE? APPELLANT: CORRECT, YOUR HONOR, BUT IF WE TALK ABOUT
TERMINATION THE DISTINCTION IS AND I THINK THIS KIND OF GETS TO THE NUANCE BETWEEN WHILE
THERE IS SOME INSTRUCTIVE -- WHILE IT IS INSTRUCTIVE THAT THEY CHOSE THE SAME LANGUAGE
AS IN SUBSECTION A, THE DISTINCTION IS WITH TERMINATION, THEY'RE TALKING ABOUT AN EVENT
THAT HAS NOT HAPPENED YET, IN OTHER WORDS G.H. AND G.A. BOTH SUBSECTION G WAS THAT PASSED
WELL BEFORE THEY WERE ELIGIBLE FOR TERMINATION. SO I THINK THE -- IF YOU'RE TALKING ABOUT
SOMEBODY WHO PLED GUILTY, DID NOT KNOW THAT THEY WERE ON MEGAN'S LAW AND IS NOW HAVING
TO REGISTER UNDER SUBSECTION A AND EVEN THAT WAS OKAY, IT WOULD BE A LITTLE DIFFERENT
BECAUSE OF TERMINATION. NOW, IT'S NOT THE CASE THAT FOR EXAMPLE G.H. AND G.A. HAD APPLIED
FOR TERMINATION, WERE OFF OF MEGAN'S LAW AND NOW SUBSECTION G GETS PASSED AND NOW THEY HAVE
TO -- JUSTICE ALBIN: I UNDERSTAND THAT ARGUMENT, BUT -- APPELLANT:
RE REGISTER. JUSTICE ALBIN: IF HYPOTHETICALLY G IF IT'S LIFETIME IRREVOCABLE
REGISTRATION CONSTITUTED A PENAL SANCTION YOU AGREE THEN THAT THE EX POST FACTO PROVISION
WOULD APPLY. CORRECT? APPELLANT: YOUR HONOR, I WOULD ACTUALLY -- BECAUSE
YOU BROUGHT UP THE EX POST FACTO ISSUE, I WOULD LIKE TO -- WE ACTUALLY ASKED THAT THIS
COURT SAVE THAT ISSUE FOR ANOTHER CASE BECAUSE -- JUSTICE ALBIN: OKAY, SO
I ACCEPT THAT. NOW SEE IF YOU CAN ANSWER THE HYPOTHETICAL, I KNOW YOU DON'T WANT US TO
ANSWER THAT BUT THAT GOES INTO WHETHER OR NOT WE SHOULD ENGAGE IN CONSTITUTIONAL AVOIDANCE
WHICH IS BEING ARGUED, THAT'S THE REASON I'M ASKING YOU THAT QUESTION. SO JUST ASSUME
FOR THE HYPOTHETICAL THAT G, BECAUSE IT'S LIFETIME, NO PUBLIC SAFETY EXCEPTION, IS
PENAL, WOULD THE EX POST FACTO THEN BE TRIGGERED IF THAT WERE THE CASE.
APPELLANT: THAT WOULD BE A DIFFERENT QUESTION, YOUR HONOR, AND OF COURSE MY RESPONSE AS
YOU CAN PROBABLY PREDICT IS THAT SUBSECTION G AND ALL OF THE MEGAN'S LAW SCHEME IS NOT
PENAL IN NATURE. AND IN FACT AGAIN -- A BUT YOU'RE NOT ANSWERING MY -- ASSUME JUST FOR
THE SAKE OF THE ARGUMENT IF IT WERE PENAL, WOULD THAT TRIGGER THE EX POST FACTO EX POST FACTO
CLAUSE. APPELLANT: NO, YOUR HONOR, BECAUSE AGAIN I THINK -- AGAIN WE'RE
NOT TALKING ABOUT G.H. AND G.A. WERE TERMINATED FROM MEGAN'S LAW AND THEY HAD -- AND
THEN THEY HAD TO COME BACK ON BECAUSE G WAS -- SUBSECTION G WAS ENACTED, AND AGAIN, I WOULD
ASK THIS COURT TO SAVE THAT ISSUE FOR A DIFFERENT CASE FOR A NUMBER OF REASONS, ONE OF
THEM BEING THAT THIS ISSUE WAS NOT BRIEFED BY THE PARTIES IN THE APPELLATE DIVISION, IN
FACT IT WAS AGREED THAT -- CHIEF JUSTICE RABNER: I WANT TO GO BACK TO THEN
A-1 AND B-1, THE LANGUAGE THERE WITH A FOLLOW-UP QUESTION, YOUR POSITION ON A-1 IS THE
USE OF THE LANGUAGE WHO HAS BEEN CONVICTED TELLS US THAT THIS IS RETROACTIVE. CORRECT?
APPELLANT: AT LEAST IS INSTRUCTIVE. AT LEAST IT -- IN OTHER WORDS THE PLAIN
LANGUAGE OF SUBSECTION G AND LOOKING AT IT IN THE CONTEXT OF THIS WHOLE MEGAN'S LAW SCHEME
WHICH THIS COURT SANCTION IS BEING APPLIED TO OFFENDERS WHO WERE CONVICTED BEFORE IT
WAS ENACTED. CHIEF JUSTICE RABNER: THAT WAS THE EASY PART OF THE OF THE
QUESTION, THAT BEING YOUR ARGUMENT AND THAT BEING RETROACTIVE. THEN LOOK AT B-1, IF THE
CLAUSE THAT WE'VE BEEN DISCUSSING AT THE VERY END REGARDLESS OF THE DATE OF THE CONVICTION
WERE REMOVED, WOULD YOU READ THE STATUTE ANY DIFFERENTLY. APPELLANT: WOULD
I READ SUBSECTION G DIFFERENTLY. CHIEF JUSTICE RABNER: WOULD YOU HAVE A
DIFFERENT VIEW ON THE RETROACTIVE APPLICATION AND THE IMPORT OF THE PHRASE THAT YOU ARE
RESTING ON. APPELLANT: NO, YOUR HONOR, BECAUSE AGAIN IF TAKING THAT PHRASE
HAS BEEN CONVICTED I WOULD SAY THAT THAT WOULD STILL THEN ON THE EFFECTIVE DATE OF THIS
STATUTE APPLY TO ANYONE WHO HAS BEEN CONVICTED. CHIEF JUSTICE RABNER: SO
IT SEEMS AS THOUGH THE LEGISLATURE MAY HAVE HAD SOMETHING IN MIND, YOU DON'T WANT TO RENDER
THIS LANGUAGE SUPERFLUOUS, THEY THOUGHT THAT IT BELONGED THERE, THE LANGUAGE AT THE END
OF B-1, WHICH I DON'T SEE YOU GIVING ANY MEANING TO. APPELLANT: AND AGAIN,
YOUR HONOR, I WOULD POINT TO THE DISTINCTION BETWEEN IN TERMS OF WHO -- IN TERMS OF WHO
HAS TO GO ON MEGAN'S LAW, MIGHT BE A LITTLE BIT OF A DIFFERENT CONSIDERATION IN TERMS
OF HOW THEY BREAK IT DOWN SPECIFICALLY IN SUBSECTION B, HOW THE LEGISLATURE CHOSE TO,
BUT IN TERMS OF TERMINATION, HERE WE ARE, ALL OF THE OFFENDERS LOOKING AT SUBSECTION G
HAVE -- ARE ON MEGAN'S LAW AND AGAIN, SO THE NEED FOR BREAKING IT DOWN LIKE THAT IS NOT
NECESSARY AND I WOULD JUST AGAIN SAY IF YOU -- JUSTICE ALBIN: IS YOUR ANSWER
TO THE CHIEF JUSTICE QUESTION IS THAT THE LANGUAGE IS SUPERFLUOUS.
APPELLANT: I WOULD JUST SAY THAT THE LANGUAGE IN SUBSECTION A IS -- JUSTICE
ALBIN: NO I'M ASKING ABOUT THE LANGUAGE IN BHCHLT 1, REGARDLESS OF THE DATE, GIVEN YOUR
INTERPRETATION OF A-1, IS THE LANGUAGE REGARD LESZ OF THE DATE OF THE COMPLIGS OF THE
OFFENSE, IS THAT LANGUAGE SUPERFLUOUS. APPELLANT: NO, YOUR HONOR, I WOULD
JUST SAY THAT THAT INDICATES THAT THE LEGISLATURE SL -- YOU KNOW, HAS GIVEN SOME APPLICATION
TO OFFENDERS BY USING THE PHRASE HAS BEEN CONVICTED THEY ACKNOWLEDGE THAT THAT PHRASE
AMONG OTHER GROUPS OF PEOPLE APPLIES TO OFFENDERS HOCH RB CONVICTED OF THE -- REGARD LESZ OF
THE OFFENSE, SO I THINK THAT THIS DEMONSTRATES ACTUALLY THAT THE PHRASE HAS BEEN CONVICT
ED IN SUBSECTION A, THEY KNEW THAT IT WOULD HAVE SOME APPLICATION TO THOSE OFFENDERS WHO
WEREN'T SHS, WHO WEREN'T PREVIOUSLY SUBJECT TO MEGAN'S LAW AND THEY WERE ABLE TO USE THAT
PHRASE AGAIN IN SUBSECTION G TO EFFECT THE STATUTE THIS WAY. JUSTICE
LAVECCHIA: CAN I GO BACK TO SOME OF THE LANGUAGE DISCUSSING WHAT WE SHOULD UNDERSTAND
ABOUT THIS FEDERAL REQUIREMENT THAT IS BEING IMPLEMENTED IN G. AND AGAIN I'M COMING BACK
TO THE APPELLATE DIVISION'S DECISION BECAUSE IT'S VERY SUCCINCT IN PITHY IN DISCUSSING
THIS, BUT THE APPELLATE DIVISION SAYS LOOK, THE WETTERLING ACT NEITHER REQUIRES STATES
ACCEPTING FUNDS TO IMPOSE REGISTRATION REQUIREMENTS RETROACTIVELY ON INDIVIDUALS
PREVIOUSLY CONVICTED OF SEX OH HE FENTSZ NOR PRECLUDED STATES FROM NEW REGISTRATION
REQUIREMENTS ON OFFENDERS CONVICTED PRIOR. SO WHEN YOU LOOK AT OUR SCHEME AS EXISTED BEFORE
THE 2002 AMENDMENTS AND OUR SCHEME FOR REGISTRATION WAS YOU HAVE TO REGISTER BUT IF
YOU SERVE YOUR 15 YEARS AND SHOW THAT YOU'RE NOT A DANGER TO THE PUBLIC AND YOU'RE OFFENSE
FREE, THAT REGISTRATION REQUIREMENT NO LONGER -- CAN BE DISCONTINUED BY ORDER OF THE COURT.
SO DO WE LOOK AT THE CHANGE TO OUR SCHEME THAT G EFFECTS AS IMPOSING A NEW REQUIREMENT.
APPELLANT: NO, NO, YOUR HONOR. JUSTICE LAVECCHIA: WHY NOT?
APPELLANT: BECAUSE AGAIN, REGISTRATION BY DEFAULT WAS ALWAYS LIFETIME,
AND SO IT DOESN'T CHANGE THAT GENERAL REQUIREMENT. THE ONLY THING THAT SUBSECTION G DID
WAS TO AMEND OUR -- JUSTICE LAVECCHIA: BUT IT WASN'T AIR TIGHT THAT IT
WOULD BE LIFETIME, IT WAS UNDERSTOOD WHETHER YOU PLED OR WHEN YOU WERE CONVICTED THAT YOU HAD
THE OPPORTUNITY AFTER 15 CLEAN YEARS TO MAKE THAT APPLICATION AND SECURE FREEDOM FROM
REGISTRATION REQUIREMENTS. THAT WAS OUR SCHEME. NOW TO THE EXTENT IT'S BEING CHANGED,
IS THAT NOT IMPOSING NEW REGISTRATION REQUIREMENT ON PEOPLE WHO WERE PREVIOUSLY CONVICT
ED OR PLED TO A MEGAN'S LAW OFFENSE THAT TRIGGERED THIS REQUIREMENT AND NOW HAS IT CHANGED
AFTER 2002. APPELLANT: NO, YOUR HONOR, I WOULD JUST SAY THAT IT NOW MAKES
THAT NARROW EXCEPTION IN SUBSECTION F INAPPLICABLE FOR A CERTAIN CLASS OF
OFFENDERS, THOSE WHO HAVE, YOU KNOW, COMMITTED SIDE ONE OF TWO PREDICATE OFFENSES OR MORE
THAN ONE SEX OFFENSE. SO IT DIDN'T CHANGE ANY REGISTRATION REQUIREMENTS, IT DIDN'T ADD
ANYTHING NEW, IT JUST MADE SUBSECTION F INAPPLICABLE TO A CERTAIN --
JUSTICE LAVECCHIA: I UNDERSTAND THAT'S YOUR PREFERRED READING BUT WHAT COMPELS US TO
AGREE WITH IT. APPELLANT: BECAUSE THE ACTUAL REQUIREMENTS AND WHAT THE
REGISTRANTS HAD TO DO DOESN'T CHANGE AND IT DIDN'T CHANGE AGAIN THE FACT THAT THEY KNEW
THAT THERE WAS A POSSIBILITY THAT THEY WOULD BE REGISTERING FOR LIFE UNDER THIS ACT.
AND IT DOESN'T -- JUSTICE LAVECCHIA: I UNDERSTAND YOUR ANSWER.
APPELLANT: THANK YOU. JUSTICE TIMPONE: HOW DO YOU SQUARE YOUR POSITION
WITH THE U. S. SUPREME COURT'S DECISION IN ST. CYR WHERE THE FACTS ARE A LITTLE DIFFERENT
BUT THE SITUATION IS VERY MUCH THE SAME AND IN THAT CASE THE SUPREME COURT LOOKED AT
DEPORTATION AGREEMENT WHERE THE DEFENDANT ENTERED A PLEA AGREEMENT WITH THE EXPECTATION
THAT THEY WOULD BE ELIGIBLE FOR DISCRETIONARY RELIEF FROM DEPORTATION. NEW STATUTE COMES
UP THAT TAKES THAT ALL AWAY AND THE SUPREME COURT SAYS THERE'S A CLEAR DIFFERENCE FOR THE
PURPOSES OF RETROACTIVITY ANALYSIS BETWEEN FACING POSSIBLE DEPORTATION AND FACING CERTAIN
DEPORTATION, ISN'T THAT THE SITUATION WE HAVE HERE. APPELLANT: I WOULD
DISTINGUISH IT, YOUR HONOR, IN THE FOLLOWING WAY: AGAIN, I WOULD SAY THAT THE CONTEXT
IS CERTAINLY DIFFERENT, AGAIN, THIS IS A, YOU KNOW, CIVIL, NON PUNITIVE, AND I APOLOGIZE
THAT I'M NOT MORE CLEAR ON THE DETAILS OF THAT CASE, BUT AGAIN, I WOULD ALSO SAY THAT
THIS IS A CASE OF SUBSECTION G BEING PASSED IN 2002 BEFORE ANY ELIGIBILITY FOR TERMINATION
BY G.H., G.A. AND THOSE SIMILARLY SITUATED. CHIEF JUSTICE RABNER: IS THAT
DIFFERENT FROM ST. CYR. APPELLANT: AGAIN, I AM -- I APOLOGIZE THAT I'M NOT
MORE FAMILIAR WITH THE DETAILS, BUT AGAIN, THIS IS ABOUT ARE THE PUBLIC SAFETY AND AGAIN
THIS COURT HAS ALREADY, YOU KNOW, TO QUOTE THIS COURT, THE CONSTITUTION DOES NOT PREVENT
SOCIETY FROM ATTEMPTING TO PROTECT ITSELF FROM CONVICTED SEX OFFENDERS NO MATTER WHEN
CONVICTED SO LONG AS THE MEANS OF PROTECTION ARE REASONABLY DESIGNED FOR THAT PURPOSE
AND FOR THE PURPOSE OF PROTECTING THE PUBLIC. AND IT REALLY WEIGHED THE BALANCE, THIS
COURT IN DOE VERSUS PORITZ WEIGHED THE BALANCE OF THE DEFENDANTS WITH THE BALANCE OF THE
PUBLIC AND SAID THAT IT WAS OKAY TO APPLY MEGAN'S LAW TO OFFENDERS WHO PLED GUILTY BEFORE THAT
IT WAS IN EFFECT. THE COURT: IS THERE ANYTHING YOU'D LIKE TO ADD AT THIS
POINT. APPELLANT: YES, YOUR HONOR, I WOULD JUST LIKE TO AGAIN EMPHASIZE THAT
WE WOULD ASK THIS COURT TO HOLD OFF ON DECIDING ANY -- ON RULING ON ANY EX POST FACTO
ARGUMENTS AS WE FEEL THEY'RE NOT PROPERLY BEFORE THE COURT FOR MULTIPLE REASONS.
CHIEF JUSTICE RABNER: OKAY. THANK YOU. MS. LUTZ: GOOD AFTERNOON. MAY IT
PLEASE THE COURT, NEW JERSEY LAW PRESUMES THAT NEW STATUTES APPLY PROSPECTIVELY AS A MATTER
OF FUND MENT AT THAT TIME FAIRNESS. THE UNITED STATES SUPREME COURT HAS RECOGNIZED THAT
THE PRESUMPTION OF BLANK HAS TIME LESS AN UNIVERSAL HUMAN APPEAL THAT PRESUMPTION CAN
ONLY BE OVERCOME BY THE CLEAREST STATEMENT OF LEGISLATIVE INTENT THAT DEMONSTRATES THE
LEGISLATURE AFFIRMATIVELY CONSIDERED THE POTENTIAL FOR UNFAIRNESS IN RETROACTIVE
APPLICATIONS AND DECIDED THAT THAT UNNARNESS WAS AN ACCEPTABLE PRICE TO PAY FOR THE LAW'S
BENEFIT. BUT EVEN THEN, EVEN WHEN THE LEGISLATURE MAKES A CLEAR UNEQUIVOCAL
STATEMENT OF INTENT TORE RETROACTIVITY THIS COURT WILL NOT APPLY A NEW LAW RETRO ACT IFT
LY IF DOING SO WILL RESULT IN MANIFEST INJUSTICE. MANIFEST INJUSTICE EXISTS WHEN AN INDIVIDUAL
CHANGES ITS POSITION ON RELIANCE ON THE EXISTING LAW AN IT ALSO EXIST WHEN THE NEW LAW
ROOUFS ALL REMEDIES. NOW THE STATE ARGUES THAT SUBSECTION G SHOULD RETROACTIVELY
STRIP REGISTRANTS OF ANY OPPORTUNITIES TO TERMINATE MEGAN'S LAW EVEN WHEN THEY RELIED
ON THAT OPPORTUNITY, WHEN THEY ENTERED THEIR PLEA AGREEMENTS, EVEN IF THEY NO LONGER POSE
A RISK TO THE PUBLIC AND EVEN IF THE LEGISLATIVE INTENT BEHIND SUBSECTION G IS CLEARLY
REALIZED WITHOUT RETROACTIVE APPLICATION. IF STATE'S POSITION IS ADD ODDS
WITH FAIRNESS AN DUE PROCESS. THE PHRASE HAS BEEN CONVICTED IN SUBSECTION G DOESN'T EVEN
COME CLOSE TO MEETING THIS COURT'S HIGH STANDARD FOR CLARITY THAT IT APPLIES TO THE
LEGISLATURE WHEN THE LEGISLATURE WANTS TO EXPRESS INTENT FOR RETROACTIVITY. HAS
BEEN CONVICTED IS A LEGAL TERM OF ART. IT'S USED THROUGHOUT THE CRIMINAL CODE TO DESCRIBE
PREDICATE OFFENSES, IF THE LEGISLATURE WANTED SUBSECTION G TO APPLY RETROACTIVELY IT WOULD
HAVE SAID SO. IT WOULD HAVE SAID SUBSECTION G APPLIES REGARDLESS OF THE DATE OF CONVICTION,
THE FACT THAT THE LEGISLATURE DIDN'T USE THAT PHRASE REGARDLESS OF THE DATE OF CONVICTION
OR ANY OTHER PHRASE TO CONNOTE RETRO ACT TIT IN SUBSECTION G IS CLEAR EVIDENCE THAT THE
LEGISLATURE DID NOT WANT SUBSECTION G TO APPLY RETROACTIVELY. BUT, AGAIN,
EVEN IF IT HAD, EVEN IF THE LEGISLATURE SAID G APPLIES REGARDLESS OF THE DATE OF CONVICTION,
THIS COURT COULD NOT GIVE SUBSECTION G RETROACTIVE EFFECT BECAUSE REJ STRANLTS
RELIED ON EXISTING LAW WHEN THEY ENTERED THEIR PLEA AGREEMENTS. THE INTEGRITY OF PLEA
BARGAINING IS ESSENTIAL TO THE CRIMINAL JUSTICE SYSTEM. IT WOULD CERTAINLY BE UNJUST
FOR THE STATE TO CHANGE THE CONSEQUENCES OF PLEA BARGAINING YEARS LATER, SOMETIMES DECADES
LATER ESPECIALLY BECAUSE THE CHANGE THAT THEY SEEK ROOUFS ANY OPPORTUNITY FOR A REMEDY
OR RECOURSE FOR THE REST OF THE REGISTRANT'S LIFE. REJ STRANLTS LIKE GH AND GA, THEY
RELIED ON SUBSECTION F WHEN THEY PLED GUILTY. THEY UNDERSTOOD IF THEY REMAINED OECHS
FREE FOR 15 YEARS AN IF THEY REHABILITATED THEMSELVES THEY WOULD HAVE AN OPPORTUNITY TO
TERMINATE MEGAN'S LAW. AND, OFTEN, I WOULD SAY THAT REGISTRANTS RELIED ON
THEIR COUNSEL AN SOMETIMES THEY RELIED ON THE ASSURANCES OF THE COURT DURING THE PLEA
HEARING OR AT SENTENCING. IF REGISTRANTS OR CRIMINAL DEFENDANTS CAN'T RELY
ON THE OFFENSE OF COUNSEL OR THE ASSURANCES OF THE COURT, THEN THE INTEGRITY OF THE CRIMINAL
JUSTICE SYSTEM WILL BE DIMINISHED IN NEW JERSEY. THIS COURT CAN AVOID THAT RESULT BY HOLD
ING THAT SUBSECTION G DOES NOT APPLY RETROACTIVELY AND WITH THAT I WILL BE HAPPY TO ANSWER
THE COURT'S QUESTIONS. JUSTICE PATTERSON: YOU TALKED ABOUT THE RELIANCE
ASPECT OF IT. COULDN'T ALL MUCH THOSE ARGUMENTS AN WEREN'T ALL THOSE ARGUMENTS MADE ABOUT
MEGAN'S LAW AT THE TIME OF DEL VER SIS IMPORTANT RITS AN WEREN'T THEY REJECTED BY THIS
COURT. MS. LUTZ: THEY WERE, YOUR HONOR. JUSTICE PATTERSON:
WHAT DISTINGUISHES, OBVIOUSLY, PROBABLE BLEE A MUCH LARGER GROUP OF INDIVIDUALS WHO HAVE
PLED GIMENT TO SEX OFFENSES BEFORE THEY EVER HEARD OF MEG BEGAN OR MEGAN'S LAW FROM THESE
INDIVIDUALS WHO WERE GENERALLY AWARE -- PRESUMED TO BE GENERALLY AWARE OF MEGAN'S LAW,
BUT DIDN'T KNOW ABOUT THIS COMING TWIST IN MEGAN'S LAW. MS. LUTZ: WELL,
YOUR HONOR, OF COURSE WE HAVE THE LEGISLATIVE INTENT WAS DIFFERENT WITH THE ORIGINAL
MEGAN'S LAW ENACTMENT. WE KNOW THAT THE LEGISLATURE ENACTED SUBSECTION G TO AVOID THE
LOSS OF FEDERAL FUNDING. ALSO, WE KNOW THAT THE LEGISLATURE CLEARLY EXPRESSED
INTENT FOR THE RETROACTIVITY OF THE ORIGINAL ENACTMENT, BUT IT HASN'T DONE SO WITH
SUBSECTION G. MORE IMPORTANTLY, I THINK TO YOUR HONOR'S QUESTION, THE
SUBSECTION WITH RESPECT TO RELIANCE, SUBSECTION F MITIGATED THAT UNFAIRNESS THAT YOUR HONOR
I THINK IS GETTING TO, SUBSECTION F RECOGNIZED THAT WHEN A PERSON IS NO LONGER A THREAT
TO THE SAFETY OF OTHERS, THE REMEDIAL PURPOSE OF MEGAN'S LAW IS NO LONGER SERVED AND SO
THEY CAN TERMINATE THEIR REQUIREMENTS. OF COURSE, SUBSECTION G HAS NO
INDIVIDUALIZED CONSIDERATION OF RISK. SUBSECTION G ROOUFS THAT PROVISION IN THE ORIGINAL
EVEN ACCOUNT MENT THAT MITIGATED THE UNFAIRNESS TO BEGIN WITH. JUSTICE
PATTERSON: JUST IN TERMS OF THE RELIANCE BECAUSE THAT'S REALLY TO THE CORE OF YOUR BRIEF
IT'S TO THE CORE OF YOUR ARGUMENT IS THAT THESE INDIVIDUALS PLED GUILTY AT A TIME WHEN
THERE WAS THAT 15-YEAR LOOK BACK. IT SEEMS TO ME THAT THE ARGUMENTS OR THE RATIONALE
BY WHICH THE COURT REJECTED THAT ARGUMENT UP FRONT IN THE BEGINNING OF MEGAN'S LAW WOULD
APPLY HERE. JUST FOCUSING ON RELIANCE AND I UNDERSTAND THE DISTINCTIONS IN TERMS OF
LEGISLATIVE HISTORY AND THE TIMING AND SO FORTH, BUT IF IT WAS NOT UNFAIR FUNDAMENTALLY
UNFAIR TO IMPOSE MEGAN'S LAW ON INDIVIDUALS WHO WERE CONVICTED BEFORE MEGAN'S LAW EVER
EXISTED ANYWHERE, THEN WHY IS IT FUNDAMENTALLY UNFAIR IN THIS SITUATION? MS.
LUTZ: BECAUSE IN THIS SITUATION, WE'RE TALKING ABOUT A LIFETIME REQUIREMENT WITH NO
RECOURSE. THE ORIGINAL MEGAN'S LAW INCLUDED SUBSECTION F WHICH MITIGATED THAT UNFAIRNESS.
JUSTICE SOLOMON: DOE VERSUS PORTS EVER SAY ANYTHING ABOUT SUBSECTION F AN
MEGAN'S LAW BEING ANYTHING OTHER THAN A LIFETIME REQUIREMENT? MS. LUTZ:
IT DID YOUR HONOR, INDIRECTLY. DOE SAYS THAT MEGAN'S LAW REQUIREMENTS ARE LIFETIME UNLESS
THE REGISTRANT CAN REMAIN OFFENSE FREE FOR 15 YEARS AND PROVE THAT HE IS NOT LIKELY TO
POSE A THREAT TO THE SAFETY OF OTHERS SO I DON'T THINK DOE OR CERTAINLY THE --
JUSTICE SOLOMON: THAT LANGUAGE YOU JUST MENTION TD BECAUSE THIS IS AN OPEN ENDED QUESTION
FROM MY STANDPOINT, THE LANGUAGE YOU JUST MENTIONED THAT'S IN THE DOE OPINION, IT
SPECIFICALLY RELIED ON THE FACT THAT 15 YEARS ARREST FREE AN REHAS BEEN, YOU CAN GET BACK
-- MS. LUTZ: I AM NOT SURE IF THE IT SPECIFICALLY RELIED ON THAT LANGUAGE.
THAT LANGUAGE IS IN DOE. DOE DESCRIBES THE DUR RAKS OF THE REGISTRATION REQUIREMENT.
I AM NOT SURE, YOUR HONOR, IF IT SPECIFICALLY SAYS, F MITIGATES THE UNFAIRNESS OF THIS.
JUSTICE SOLOMON: I THOUGHT IT SPECIFICALLY SAID THROUGHOUT, IT WAS A
LIFETIME REGISTRATION REQUIREMENT, WHICH WOULD BE INCONSISTENT WITH YOUR ARGUMENT?
MS. LUTZ: WELL, AGAIN, IT DOESN'T SAY IT'S A LIFETIME REQUIREMENT FULL STOP. IT SAYS
IT'S A LIFETIME REQUIREMENT UNLESS THE REGISTRANT CAN PROVE.... SO THAT'S
VERY DIFFERENT FROM WHAT SUBSECTION G DOES, WHICH IS A LIFETIME REQUIREMENT WITH NO OPPORTUNITY
FOR RELIEF. JUSTICE ALBIN: WHY ARE YOU FIGHTING THIS RELIANCE ARGUMENT
WHICH SEEMS TO BE VERY WEAK BASED UPON THE QUESTIONS THAT JUSTICE PATTERSON IS
PRESENTING TO YOU, THE WAY YOU'RE RESPONDING IS THAT G IS PENAL IN NATURE AND THAT'S WHAT
DISTINGUISHES IT FROM F AND THAT'S WHAT MAKES THIS COMPLETELY DIFFERENT, GO AHEAD.
MS. LUTZ: WELL -- JUSTICE ALBIN: I'VE THROWN THE BALANCE BALL TO YOU.
MS. LUTZ: SO, IF I UNDERSTAND YOUR HONOR'S POINT, I MEAN, WE DIDN'T BRING
THE EX POST #2357K9 TOE CHALLENGE IN THIS CASE. JUSTICE ALBIN: YOU'RE ARGUE
RG CONSTITUTIONAL AVOIDANCE AND SO YOU CAN ARGUE THAT YOU'RE TRYING TO AVOID THAT PARTICULAR
OUTCOME HUTS LUTZ THE FRIENDS OF THE COURT HAVE MADE THAT ARGUMENT. IF THIS COURT RULES
THAT SUBSECTION G IS RETROACTIVE, IT IS VERY LIKELY THAT THERE WILL BE REGISTRANTS IN
THE NEAR FUTURE THAT BRING THE EX POST FACTO CHALLENGE AND THAT'S A THAT BECAUSE THIS IS
MANDATORY LIFETIME WITH NO CONNECTION WHATSOEVER TO RISK AS THE ORIGINAL MEGAN'S LAW WAS
-- THE COURT IN DOE WENT TO GREAT LENGTHS TO ENSURE THAT THE ORIGINAL ENACTMENT WAS
CAREFULLY KAL BRATD TO THIS RISK ES: SUBSECTION G DOESN'T DO THAT SO I CERTAINLY THINK
THERE IS THE PUNITIVE QUESTION. JUSTICE PATTERSON: DIDN'T THE COURT REALLY
SAY IN DOE, POLITELY TOO BAD THAT WE HAVE TO MAKE THIS RETROACTIVE OTHERWISE THE PUBLIC
SAFETY ASPECTS OF THE STATUTE ARE NOT GOING TO WORK? WASN'T THAT REALLY THE
RESPONSE OF THE DOE COURT TO THAT ARGUMENT? MS. LUTZ: IT WAS, YOUR HONOR,
BUT WE ARE IN A VERY -- THE CIRCUMSTANCES IN 2002 WHEN G WAS PASSED WERE VERY DIFFERENT
THAN IN 1994 WHEN THE ORIGINAL ENACTMENT WAS PASSED. IN 1994, THERE WAS NO -- MEGAN'S
LAW DIDN'T EXIST SO WE WENT FROM HAVING ZERO PROTECTION FROM SEX OFFENDERS TO HAVING THIS
NEW LAW. IN ORDER FOR THAT LAW TO HAVE ANY EFFECT ON THE DATE IT WAS ENACTED, THE
LEGISLATURE FELT THAT IT HAD TO MAKE IT RETROACTIVE IN ORDER TO PROTECT THE PUBLIC.
JUSTICE ALBIN: THEY MADE IT RETROACTIVE BECAUSE IT WAS REMEDIAL. AND IF
G WERE REMEDIAL, THEN IT COULD ALSO HAVE THE SAME RETROACTIVE VIOLATION. CORRECT.
MS. LUTZ: CORRECT. JUSTICE ALBIN: AND THAT'S WHERE YOUR
RELIANCE ARGUMENT COMPLETELY FALSE APART UNLESS G HAS SOME SORT OF PENAL STING TO IT, NO?
ARE YOU FOLLOWING ME? MS. LUTZ: I THINK SO, YOUR HONOR, BUT
I DON'T THINK YOU HAVE TO GET TO PENAL IN ORDER FOR THIS RELIANCE ARGUMENT TO HOLD WEIGHT.
JUSTICE ALBIN: NT IT DIDN'T WORK IN DOE V IMPORTANT RITS BECAUSE EVEN THOUGH
PEOPLE WHO PLED GUILTY HAD NO IDEA THAT THE LEGISLATURE WAS GOING TO PASS THIS
REGISTRATION ACT, THEY WERE STILL BOUND BY IT? OUR COURT FOUND IT WAS RETROACTIVE BECAUSE
IT WAS NOT A PENAL STATUTE. IT WAS REMEDIAL IN NATURE AN THEREFORE IT APPLIED RETROACTIVELY.
HAD THE DOE COURT DECIDED OTHERWISE, JUSTICE STOOIN WAS DISSENTING AND FOUND
IT WAS PENAL, THEN IT WOULD HAVE VIOLATED THE EX POST FACTO LAWS. MS. LUTZ:
JUSTICE LA VECCHIA: ISN'T YOUR BEST ARGUMENT THE ONE YOU ARE ADVANCING WHICH IS
THIS DOES NOT MEET THE CLARITY REQUIRED FOR A RETROACTIVE APPLICATION OF LEGISLATIVE INTENT
EXPRESSED IN THE STATUTE? MS. LUTZ: YES, YOUR HONOR AN CERTAINLY THE APPELLATE
DIVISION RECOGNIZED THAT AS WELL AND ACCEPTED THAT POSITION. JUSTICE ALBIN:
AND THAT'S BASICALLY A CONSTITUTIONAL AVOIDANCE LU LUTZ CORRECT. JUSTICE ALBIN:
IT HAS TO BE CLEAR AND UNAMBIGUOUS? MS. LUTZ: CORRECT. CHIEF
JUSTICE RABNER: ANYTHING YOU WOULD LIKE TO ADD. MS. LUTZ: NO, THANK YOU,
YOUR HONOR. CHIEF JUSTICE RABNER: THANK YOU, MS. HAAS. MS. HAAS:
MAY IT PLEASE THE COURT, THE A C L U OF NEW JERSEY AGREES WITH RESPONDENTS THAT THERE IS
ONLY ONE REASONABLE READING OF THE PLAIN TEXT OF SECTION G AND THAT IS THAT IT APPLIES
PROCEED RESPECTIVELY ONLY HOWEVER IF THE COURT IS NOT FULLY CONVINCED BY THAT ARGUMENT.
THE A C L U BELIEVES THERE IS A SECOND REASON WHY THE COURT SHOULD READ THE STATUTE
PROSPECTIVE. BLANK. IN ORDER TO INVOKE THIS DOCTRINE OF CONSTITUTIONAL
AVOIDANCE THERE IS NO NEED FOR THE COURT TO ACTUALLY FIND THAT RETROACTIVE APPLICATION
WOULD IN FACT VIOLATE THE EX POST FACTO CLAUSE, RATHER, THERE NEED ONLY BE A FINDSING
THAT RETROACTIVITY WOULD OPEN THE DOOR TO A LEGITIMATE ARGUMENT ON THAT FRONT.
A C L U BELIEVES THERE CERTAINLY IS SUCH AN ARGUMENT AND WE LAID IT OUT IN DETAIL IN OUR
BRIEFING WHY APPLYING SUBSECTION G TO REGISTRANTS LIKE G A AND GH WOULD BE IN VIOLATION
OF THE EX POST FACTO CLAUSE. I AM HAPPY TO ANSWER ANY QUESTIONS THE COURT MIGHT HAVE
ABOUT THAT ARGUMENT BUT IF NOT I WOULD LIKE TO JUST QUICKLY ADDRESS THE TWO POINTS THAT
THE STATE MADE IN ITS SUPPLEMENTAL BRIEFING REGARDING WHY THE EX POST FACTO CLAUSE IS
NOT IMPLICATED HERE, THE FIRST WAS A POINT REGARDING RETROACTIVITY AN THE SECOND WAS A
POINT REGARDING PUNITIVENESS THE TWO THINGS REQUIRED. TURNING FIRST TO RETRO
ACTIVITY THE STATE INCORRECTLY ARGUES THAT APPLICATION TO GH AND GA WOULD BE NOT BE
RETROACTIVE BECAUSE THEY WERE NOT ELIGIBLE TO TERMINATE THEIR TERM. HOWEVER,
THIS MISS UNZ THE. IN ROOILLY QUOTING THE UNITED STATES SUPREME COURT THIS
COURT SAID THAT A LAW VIELTHS THE EX POST FACTO CLAUSE IF IT MAKES MORE BURDENSOME THE
PUN NIRN MENT FOR A CRIME AFTER ITS COMMISSION SO THERE IS ONLY TWO DATES RELEVANT IN
AN EX POST FACTO ANALYSIS THE DATE THE ACTUAL CRIME AS COMMITTED AN THE DATE THE LAW
INCREASING THE PUNISHMENT FOR THAT CRIME WAS PASSED. THERE IS. THE FACT THAT
THE TERMINATION APPLICATION TOOK PLACE AFTERWARDS IS NOT RELEVANT FOR PURPOSES OF THE
EX POST FACTO CLAUSE ANL I THINK THIS COURT HAS RECOGNIZED THE BLANK IN AN ANALOGOUS CASE,
THE RECENT KAIS HES REGARDING VIELSZ OF SUPERVISED RELEASE CONDITIONS, IN THAT CASE
THIS COURT RECOGNIZED THAT EVEN IF A SUPERVISED RELEASE VIOLATION TAKES PLACE AFTER A
STATUTE IS PASSED INCREASING THE PUNISHMENT FOR THAT VIOLATION, AS LONG AS THE ORIGINAL
CRIME WHICH SUBJECTED THE PERSON TO SUPERVISED RELEASE TOOK PLACE BEFORE THE STATUTE WAS
PASSED THERE IS STILL AN EX POST FACTO PROEBL THERE SO EVEN THOUGH THERE IS THIS KIND
OF TWO STEP INQUIRY GOING ON HERE THE EX POST FACTO STILL MEASURE RETROACTIVITY BASED
ON THE DATE OF THE ORIGINAL CRIME AN HERE THERE IS NO DISPUTE THAT GH AND GAT COMMITTED
THE RELEVANT CRIMES WELL BEFORE SUBSECTION G WAS PASSED SO THE RETROACTIVITY POINT I THINK
IS CLEARLY MET HERE AND THE EX POST FACTO CLAUSE WOULD BE IMPLICATED BY APPLICATION TO
GH AN GACHLT. JUSTICE PATTERSON: LET ME ASK YOU A QUESTION, THE POINT YOU
RAISED ABOUT THE LEGISLATIVE HISTORY IN YOUR BRIEF, YOU ARE SAYING THAT THE LEGISLATIVE
HISTORY IS NOT REMEDIAL IT'S NOT PUNITIVE IT'S JUST FEDERAL FUNDING AND THAT GOT ME THINKING
ABOUT STATUTES THAT -- SOME OF THEM ACTUALLY DEALING WITH SEX OFFENDERS WHERE FEDERAL
FUNDING IS MADE CONTINGENT ON THE STATE PASSAGE OF CONFORMING STATE LAWS. A. YES.
JUSTICE PATTERSON: DOES THE FACT THAT THE STATE'S MAYBE GOT DOWN TO BUSINESS
TO MAKE SURE THE FEDERAL FUNDING IS EVEN INSURED MEAN THAT THE LEGISLATURE IS SOLELY FOCUSED
ON FEDERAL FUNDING OR IS THERE A LEGISLATIVE INTENT TO ENHANCE PUBLIC SAFETY FOR EXAMPLE,
AS WELL, DO YOU SEE WHAT I AM SAYING? MS. HAAS: YES, SO I CERTAINLY THINK
IT IS POSSIBLE THAT A LEGISLATURE COULD HAVE BOTH INTENTS IN MIND SIMULTANEOUSLY. I THINK
THE LEGISLATIVE HISTORY HERE DOESN'T REALLY MAKE THAT PARTICULARLY LIKELY IN THIS CASE.
I THINK IN C K, THE COURT DID RECOGNIZE THAT THE PRIMARY MOTIVATION HERE WAS THAT FEDERAL
FUNDING, BUT I ALSO THINK, YOU KNOW, IN THE IN TEBT OF SEX TEST WHICH IS RELEVANT TO OEP
ANALYSIS, SO EVEN IF IT WERE THE CASE THAT THE LEGISLATURE HERE DID HAVE A REMEDIAL INTENT
WE WOULD STILL HAVE TO TURN TO THE EFFECTS OF THE STATUTE TO DETERMINE WHETHER OR NOT
IT WAS PUNITIVE. JUSTICE PATTERSON: PRESUMABLY IF THE FEDERAL GOVERNMENT
FOR WHATEVER REASON WAS MAKING FEDERAL FUNDING CONTINGENT ON A LEGISLATIVE POLICY THAT
OUR LEGISLATURE WAS JUST AN ANATHEMA TO THE LEGISLATURE IT WOULDN'T PASS THE LAW, THE
CONFORMING LAW. THERE SEEMS TO ME AN IMPLICATION IF THE LEGISLATURE FINDS THE STATUTE
TO BE -- TO BE CONSISTENT WITH ITS PUBLIC POLICY OR IT WOULDN'T PASS IT EVEN IF IT WERE
GOING TO LOSE FEDERAL FUNDING BY NOT PASSING IT CAN WE ASSUME THAT, AS WELL. MS.
HAAS: I CERTAINLY THINK YOU CAN ASSUME THAT THE LEGISLATURE DID INTEND TO PASS THE LAW
THAT IT DID PASS AN FOUND IT TO BE ACCEPTABLE BUT I THINK THE POINT WE'RE TRYING TO MAKE
IN OUR BRIEFING IS THAT IN EX POST FACTO ANALYSIS THERE IS THE NOTION THAT IF THE LEGISLATURE
HAS A CLEAR REMEDIAL INTENT YOU NEED TO SHOW THE HIGHEST PROOF THAT THE EFFECTS ARE IN
FACT PUNITIVE TO OVERCOME THAT INTENT AND, YOU KNOW, WE THINK THAT COULD BE THE CASE HERE.
HOWEVER, WE WANTED TO ARGUE THAT GIVEN THAT THE INTENT HERE WAS NOT CLEARLY REMEDIAL,
IT WASN'T PUNITIVE BUT IT WASN'T CLEARLY REMEDIAL EITHER PERHAPS THERE IS A NEED TO MEET
THAT MUCH HIGHER STANDARD WHEN SHOWING THE PUNITIVE EFFECTS BUT AGAIN EVEN IF THE INTENT
OF THE LEGISLATURE WAS CLEARLY REMEDIAL HERE IT IS IMPOSSIBLE FOR THE LAW TO VIOLATE THE
EX POST FACTO CLAUSE BECAUSE OF THE SEVERITY OF THE EFFECTS. JUSTICE PATTERSON:
ARE WE TREATING STATUTES THAT ARE PASSED BECAUSE THE FEDERAL GOVERNMENT IS PRESSING THE
STAITS TO PASS THEM DIFFERENTLY FOR PURPOSES OF THIS ANALYSIS THAN WE ARE STATUTES THE
STATE JUST COMES UP WITH OVER AT THE STATE HOUSE OO ITS OWN? MS. HAAS: I DON'T
THINK THERE IS A NEED TO. I THINK THAT OTHER JURISDICTION THAT HAVE PASSED A BLANK IN
RESPONSE TO FEDERAL LEGISLATION HAVE INCLUDED MULTIPLE REASONS IN THEIR LEGISLATIVE HISTORY
WHEN MAKING THOSE AMENDMENTS HAVE INCLUDED PUBLIC SAFETY TYPE REASONS, BUT, AGAIN, I DON'T
THINK THE EX POST FACTO ARGUMENT DEPENDS ON WHETHER OR NOT THE LEGISLATURE DID HAVE A
PUBLIC SAFETY PURPOSE HERE. EVEN IF IT DID IT COULD STILL BE AN EX POST FACTO VIOLATION.
JUSTICE PATTERSON: IF AT THIS TIME DOES STATE PUBLIC SAFETY PURPOSE ISN'T
THAT GIVING IT A REMEDIAL CONTENT THAT MIGHT RESOLVE THE EX POST FACTO PROEBL LEM.
MS. HAAS: I DON'T THINK IT CAN ON ITS OWN. EVEN IF IT IS VERY CLEAR THAT THE LEGISLATURE
HAS A REMEDIAL INTENT. EVEN IF IT WAS VERY CLEARLY STATED IN THE STATUTE FOR PURPOSES
OF PUBLIC SAFETY WE'RE ENACTING SUBSECTION G, NONETHELESS IN ORDER TO COMPLETE AN, THE
COURT MUST ALSO TURN TO EFFECTS AN GO THROUGH THE MEND DOEZ IS A MART NEZ FACTORS TO ANALYZE
WHETHER OR NOT THOSE EFFECTS ARE SO SEVERE THAT THEY SHOULD BE PUNITIVE REGARDLESS OF
-- JUSTICE ALBIN: YOU DO THAT IN YOUR BRIEF? MS. HAAS: YES.
JUSTICE ALBIN: YOU BASICALLY ASSUME EVEN IF THE LEGISLATURE INTENDED THIS
TO BE REMEDIAL, WHEN WE LOOK AT THE EFFECTS, WHEN WE LOOK THROUGH THE SUPREME COURT'S
CRITERIA CONSTITUTE PENAL, A PENAL STATUTE. MS. HAAS: EXACTLY YOUR HONOR.
WE DO THINK THAT'S THE CASE AN THAT BRINGS ME TO THE SECOND POINT THAT HAS BEEN MADE IN
RESPONSE TO THE NOTION THAT THE EX POST FACTO CLAUSE COULD BE IMPLICATED HERE WHICH IS
THAT IN OTHER JURISDICTIONS WHERE AMENDMENTS LIKE THIS ONE WHICH MADE A PREVIOUSLY EXISTING
MEGAN'S LAW SCHEME HARSHER IN OTHER STATES WHERE THOSE TYPES OF LAWS HAVE BEEN FOUND TO BE
AN EX POST FACTO PROEBL TYPICALLY THE ORIGINAL LAW WAS LESS HARSH THAN OUR MEGAN'S LAW.
THE REGISTRANT IN QUESTION IN SOME OF THEM WOULD HAVE AUTOMATICALLY GOTTEN OFF IN TEN
YEARS AN THEN THE LAW WAS AMENDED SUCHL THAT THEY WILL BE ON THE REGISTRY FOR LIFE NOW.
HERE AS THE STATE POINTED OUT OUR ORIGINAL WAS DIFFERENT THE DEFAULT WAS ALWAYS THAT THE
REGISTRANT WOULD BE ON THE REGISTRY FOR LIFE UNLESS THEY WERE ABLE TO SELF FLEE APPLY
FOR TERMINATION UNDER SUBSECTION F, HOWEVER, I THINK THE STATE 'S POINT HERE MISUNDERSTAND
WHAT MATTERS ABOUT THE AMENDMENT, THE QUESTION ISN'T THE DISTANCE BETWEEN THE OLD LAW
AND IF NEW LAW, HOW MUCH MORE HARSH HAS IT BECOME, BUT RATHER IS THE FINAL LAW, THE LAW
THAT IS PRESENT NOW, IS THAT LAW PASSING THE THRESHOLD OF SEVERITY TO BECOME PUNITIVE
SO MEGAN'S LAW AS THIS COURT FOUND IN DOE V PORTS FOUND AS ORIGINALLY ENACTED WAS REMEDIAL
BUT PERHAPS IT WAS CLOSER TO THE LINE WHERE A LAW WOULD BECOME PUNITIVE THAN THE LAWS
IN THESE OTHER STATES BUT WHAT PARTIES IS NOT THAT DISTANCE WHAT MATTERS IS OUR VIEW
SUBSECTION G HAS CLEARLY GONE OVER THAT LINE. UNLESS THE COURT HAS ANY OTHER
QUESTIONS I WOULD SIMPLY URGE YOU TO AFFIRM THE DECISION BELOW. CHIEF JUSTICE
RABNER: THANK YOU, MR. WOIS. MR. WOYCE: WOYCE GOOD AFTERNOON AND MAY IT
PLEASE THE COURT, THE ARGUMENTS OF THE A C L U HAVE LARGELY BEEN ADDRESSED SO UNLESS THE
COURT HAS QUESTIONS I DID JUST WANT TO NOTE, JUDGE SOLOMON ASKED A QUESTION EARLIER OF
MS. LUTZ AND AT PAGE 21 IN DOE THE COURT DID SPEAK TO THE LANGUAGE AND CITE TO THAT
LANGUAGE FROM SUBSECTION F AND DID CONSIDER THE EXIT RAMP SO TO SPEAK OF THE ORIGINAL MEGAN'S
LAW STATUTE AS BEING A PART OF THE REMEDIAL SCHEME IN THAT A REGISTRANT WHO NO LONGER
POSED A RISK HAD AN EXIT RAMP. WHAT SUBSECTION G DOES AS HAS BEEN DISCUSSED HERE TODAY
IS IT ROOUFS THAT EXIT RAMP AND NO LONGER IS REGISTRATION, AT LEAST FOR THOSE REGISTRANTS
WHO FALL WITHIN THE PROVISIONS OF SUBSECTION G TIED TO RISK AND SO THEREIN LIES THE ISSUE
ACCORDING -- OR ACCORDING TO THE A C L U IS THAT ONCE REGISTRATION IS NOT TIED TO RISK
NOW THE QUESTION IS PUNISHMENT COMES UP AND AS THIS COURT SUGGESTED OR HELD IN C K WHERE
REGISTRATION IS NOT TIED TO RISK IT SEEMS TO LENLD ITSELF TO PUNISHMENT WHICH WOULD RAISE
CONSTITUTIONAL ISSUES THAT CAN BE AVOIDED BY ACCEPTING THE ARGUMENTS OF THE PUBLIC
DEFENDER OFFICE AS WELL AS CLO, UNLESS THE COURT HAS QUESTIONS THE A C L U WOULD ASK THIS
COURT TO AFFIRM AND AVOID. CHIEF JUSTICE RABNER: YOU'RE SPEAKING FOR THE A
C D L C. CHIEF JUSTICE RABNER: I JUST WANT THEM TO KNOW THAT IF THEY ARE
LISTENING. MR. WOYCE: THANK YOU, YOUR HONOR. CHIEF JUSTICE
RABNER: MS. ANDERSON. MS. ANDERSON: THANK YOU, YOUR HONORS AND I WOULD
JUST LIKE TO MAKE FOUR, I PROMISE BRIEF POINTS IN REBUTTAL. FIRST, AS IN REGARDS TO
THE EX POST FACTO ISSUE HAS DISCUSSED BEFORE, I WOULD LIKE TO EXPLAIN THE FIVE REASONS
WHY THIS ISSUE IS NOT PROPERLY BEFORE THE COURT AND AS SUGGESTED BY THE DECHTS COUNSEL
WOULD BE BETTER SUITED FOR CONSIDERATION IN ANOTHER ARGUMENT FIRST, THE REGISTRANTS DID
NOT RAISE THIS ISSUE IN THE APPELLATE DIVISION, INDEED THEY CONCEDED -- THEY DID NOT RAISE
THESE ISSUES IN THE APPELLATE DIVISION. IN FACT THEY DID NOT ADDRESS THAT AT ALL.
SECOND, THE APPELLATE DIVISION DID NOT CONSIDER THIS ISSUE WHEN DECIDING ITS -- WHEN
RENDERING ITS DIVISION. SPECIFICALLY IN FOOTNOTE 3, I BELIEVE, IT IS, THE APPELLATE DIVISION
NOTED THAT IT WAS NOT CONSIDERING THIS ISSUE AS IT HAD NOT BEEN RAISED BY EITHER PARTY.
THIRD, THE STATE DID NOT RAISE THIS ISSUE IN ITS PETITION. FOURTH,
THE REGISTRANTS DID NOT CROSS PETITION ON THIS ISSUE AND. FIFTH, AS STATED
IN J R, THIS COURT DOES NOT CONSIDER ARGUMENTS THAT ARE NOT PROPERLY BEFORE IT BY A PARTY.
SO FOR ALL OF THOSE REASONS I WOULD ASK THAT THIS COURT LEAVE -- SAVE THE
EX POST FACTO DECISION FOR ANOTHER CASE WHERE IT CAN BE MORE THOROUGHLY BRIEFED FROM THE
TRIAL COURT THROUGH THIS COURT. SECONDLY, I WOULD LIKE TO JUST VERY QUICKLY
DISTINGUISH HES BECAUSE IT WAS BROUGHT UP, HES IS OBVIOUSLY TALKING ABOUT CRIMINAL PENALTIES
FOR APPEALING A CONDITION OF COMMUNITY SUPERVISION FOR LIFE OR PAROLE SUPERVISION
FOR LIFE AND SO THEREFORE IT IS CLEARLY DISTINGUISHABLE FROM MEGAN'S LAW WHERE IT IS
NOT -- WE'RE NOT TALKING ABOUT ANYONE WHO HAS, YOU KNOW, INCURRED A CRIMINAL PENALTY AND
SO THE DISTINGUISHING FACTOR BEING THIS COURT HAS RECOGNIZED THAT C S L AND P S L PLACE
RESTRICTIONS ON REGISTRANTS THAT MAKE IT DIFFERENT FROM MEGAN'S LAW AND THEREFORE HES
IS DISTINGUISHABLE. THIRD, I WOULD LIKE TO JUST BRIEFLY ADDRESS THE ARGUMENT
ABOUT LEGISLATIVE HISTORY. JUSTICE PATTERSON, YOU ASKED ABOUT FEDERAL FUNDING AND WHAT
THE LEGISLATIVE -- COULD THE LEGISLATURE HAVE HAD TWO PURPOSES IN MIND, I WOULD SAY TWO
THINGS TO THIS, ONE, WE DON'T NEED TO LOOK AT THE LEGISLATIVE INTENT BECAUSE OUR ARGUMENT
IS, OF COURSE, THAT THE PLAIN LANGUAGE OF THE STATUTE ENDS THE INQUIRY AND IT APPLIES
SUBSECTION G KNOWING THE WORDS THAT THEY CHOSE, IMPARTING THEIR INTENT ON THEM BASED ON
THE WORDS THAT THEY CHOSE THE LEGISLATURE APPLIED SUBSECTION G TO ANY REGISTRANT WHO
HAS BEEN CONVICTED WHEN IT BECAME IMMEDIATELY EFFECTIVE IN 2002. JUST THE OTHER
POINT ABOUT THIS IN TERMS OF THE LEGISLATIVE INTENT, YOU KNOW, TO LOOK AT THIS -- TO
LOOK AT MEGAN'S LAW AS AN OVER ARCHING STATUTORY SCHEME AND THIS IS NOT SOMETHING IN
ISOLATION, THIS IS MERELY AN AMENDMENT TO A SCHEME THAT HAD AN ESTABLISHED PURPOSE BEHIND
IT THAT WAS THE PURPOSE BEING TO PROTECT THE PUBLIC SAFETY. CHIEF JUSTICE
RABNER: THE LEGISLATIVE STATEMENT THAT IS APPENDED TO THE BILL SPECIFICALLY EXPLAINS
THE DESIRE NOT TO LOSE FEDERAL FUNDING. DOES IT OFFER ANOTHER REASON AS THE
LEGISLATURE'S INTENT? MS. ANDERSON: THE LEGISLATIVE INTENT OR THE LEGISLATIVE
STATEMENT DOES NOT NECESSARILY SPEAK TO ANY OTHER INTENT SPECIFICALLY WITH SUBSECTION
G, BUT OF COURSE, AGAIN, IT IS THE STATE'S POSITION THAT WE DON'T NEED TO GO THERE AND
B, IMPLICIT IN ALL OF THIS IS THE LEGISLATURE'S OVER ARCHING PURPOSE IN, YOU KNOW, PASSING
MEGAN'S LAW FOR PUBLIC SAFETY REASONS. THE FINAL POINT THAT I WOULD JUST LIKE
TO MAKE IN TERMS OF ANY RELIANCE ON SUBSECTION F BY OFFENDERS LIKE GH AN GA AND WHETHER
THAT MIGHT BE MANIFESTLY UNJUST IS THAT THEIR REMEDY, IF THEY HAD RELIED ON THE POSSIBILITY
OF TERMINATION, THEIR REMEDY WOULD HAVE BEEN TO SEEK TO WITHDRAW THEIR PLEA AT THAT TIME.
WE KNOW THAT THEY DID NOT RELY ON THIS OR SHOULD NOT HAVE RELIED ON THIS BECAUSE NO MENTION
OF TERMINATION WAS EVER MADE IN ANY OF THE PLEA FORMS THAT I HAVE FOUND AT THE VARIOUS
STATES THAT THEY HAVE BEEN AMENDED AND SO THERE SHOULD HAVE BEEN NO EXPECTATION ABOUT
ANYTHING RELATING TO TERMINATION AS PART OF THE PLEA AGREEMENTS. JUSTICE
PATTERSON: THAT'S THE PLEA PAPERS. HOW DO YOU KNOW THERE WASN'T DISCUSSION WITH COUNSEL
THAT EXPLAINS HOW THIS WORKSES AN YOU'RE GOING TO HAVE THIS OFFENSE. . ANDZ
ANDERSON MY POINT IS, YOUR HONORS IS THAT AT NO POINT SHOULD, SHOULD ANY. MS.
ANDERSON: MY POINT IS YOUR HONORS THAT AT NO POINT SHOULD ANY REGISTRANT HAVE BEEN RELYING
ON THIS TERMINATION BECAUSE, AGAIN, A, IT WAS NOT IN THE PLEA FORMS BUT B, WE ALSO KNOW
THAT IT WAS NOT A GUARANTEE AND IT WAS NEVER A GUARANTEE. JUSTICE PATTERSON:
THE FACT IS, SOMEONE COULD HAVE, WE DON'T KNOW, WE DON'T HAVE ANY EVIDENCE EITHER WAY,
BUT SOMEONE COULD HAVE HAD THAT EXPLAINED BY HIS LAWYER THIS IS HOW IT'S GOING TO WORK;
THAT'S APART FROM THE PLEA FORM EVEN INCLUDING THE FACT THAT IT WASN'T -- MS.
ANDERSON: THAT MIGHT HAVE BEEN BEEN A POSSIBLE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
I DON'T KNOW HOW FAR THAT WOULD GET, BUT... JUSTICE ALBIN: PRESUMABLY THE
ATTORNEY TOLD THE CLIENT WHAT THE LAW WAS, WHETHER IT'S ON THE PLEA FORM OR NOT, YOUR
ARGUMENT REALLY IS OVER HERE, EVEN IF THEY RELIED ON IT, IT DOESN'T MAKE A DIFRNLS BECAUSE
YOUR ARGUMENT IS THAT G IS REMEDIAL SO WHAT IS THE DIFFERENCE? MS. ANDERSON:
AND I PROMISE THIS IS MY LAST POINT, I WOULD JUST EMPHASIZE THE NONE PUNITIVE NATURE
OF REGISTRATION AND THAT IT IS ONCE A YEAR FOR MOST OFFENDERS IN A NONPUBLIC AREA OF THEIR
LOCAL P D. MEGAN'S LAW DOES NOT RESTRICT WHERE THEY LIVE, WHAT THEY DO EXCEPT FOR WORKING
WITH A YOUTH-SERVING ORGANIZATION. HOW MUCH THEY CAN ACCESS THE INTERNET. THE
ONLY PARTS OF MEGAN'S LAW WHICH ARE -- THAT ARE PLAINLY IN THE NAME OF THE STATUTE IS
THE NOTIFICATION AN REGISTRATION SO THE REGISTRATION REQUIREMENTS KEEP US INFORMED OF
THIS INFORMATION, YOU KNOW, YOUR ADDRESS, ANY WORKPLACE THAT YOU HAVE AND UPDATE US WHEN
IT IS AT CERTAIN TIMES. AND SO IT IS -- IT DOES NOT PLACE ANY UNDUE RESTRICTIONS ON THE
OFFENDERS IN TERMS OF, YOU KNOW, THEM LIVING THEIR LIVES, GOING TO SCHOOL, WORKING, AGAIN,
EXCEPT FOR THE YOUTH SER VING ORGANIZATIONS, ACCESSING THE INTERNET, THOSE RESTRICTIONS
ARE NOT PART OF MEGAN'S LAW AND I WOULD JUST LEAVE YOU WITH THAT. CHIEF
JUSTICE RABNER: THANK YOU AND THANK YOU ALL COUNSEL WE WILL TAKE IT UNDERSTAND ADVISE.