RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2388-16T1 A-3132-16T1
IN THE MATTER OF REGISTRANT G.H. APPROVED FOR PUBLICATION ________________________________ August 6, 2018
IN THE MATTER OF REGISTRANT G.A. APPELLATE DIVISION ________________________________
Argued May 21, 2018 – Decided August 6, 2018
Before Judges Messano, Accurso, and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Union County and Middlesex County, Docket Nos. ML-00200521 and ML- 07130018.
Stephanie A. Lutz, Assistant Deputy Public Defender, argued the cause for appellants G.H. and G.A. (Joseph E. Krakora, Public Defender, attorney; Stefan J. Erwin, Assistant Deputy Public Defender, of counsel; Stephanie A. Lutz, of counsel and on the briefs).
Emily R. Anderson, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Emily R. Anderson, of counsel and on the briefs).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
We consolidated these appeals to issue a single opinion
because they present the same legal issue. G.H. and G.A. were convicted of sexual offenses, see N.J.S.A. 2C:7-2(b), prior to
2002, when the Legislature amended the registration provisions
of Megan's Law, N.J.S.A. 2C:7-1 to -23, by enacting a new
subsection, N.J.S.A. 2C:7-2(g) (subsection (g)), see L. 2001, c.
392. Subsection (g) provides in relevant part:
A person required to register under this section who has been convicted of . . . more than one sex offense . . . or who has been convicted of . . . aggravated sexual assault pursuant to [N.J.S.A. 2C:14-2(a)] or sexual assault pursuant to [N.J.S.A. 2C:14-2(c)(1)] is not eligible . . . to make application to the Superior Court of this State to terminate the registration obligation.
[(Emphasis added).]
Subsection (g) took "effect immediately" on January 8, 2002. L.
2001, c. 392, § 2. As a result, the lifetime registration
requirements of Megan's Law became "permanent[ and] irrevocable"
for certain offenders. In re State ex rel. C.K., 233 N.J. 44,
66 (2018).
Neither G.H. nor G.A. has committed an offense for more
than fifteen years since his release from custody. Prior to the
adoption of subsection (g), both would have been eligible for
relief from lifetime registration pursuant to N.J.S.A. 2C:7-2(f)
(subsection (f)), which provides any registrant may
make application to the Superior Court . . . to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or
2 A-2388-16T1 release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.
[Ibid.]
However, because G.H. was convicted of more than one sexual
offense, and both G.H. and G.A. were convicted of offenses
listed in subsection (g), the respective trial courts denied
their requests to terminate registration obligations.
G.H. and G.A. argue the Legislature did not intend
"subsection (g) to apply retroactively" to convictions that
predated its passage, and, "[r]egardless of legislative intent,"
retroactive application would result in "manifest injustice and
interference with vested rights." The State contends G.H. and
G.A. were not eligible for and did not seek relief under
subsection (f) until after the Legislature enacted subsection
(g), and therefore the trial courts did not apply subsection (g)
retroactively. Alternatively, the State contends the
Legislature intended subsection (g) to apply retroactively to
registrants like G.H. and G.A.
I.
In Doe v. Poritz, 142 N.J. 1, 12-13 (1995), the Court
upheld the constitutionality of the registration and community
notification provisions of Megan's Law, first enacted in 1994.
As the Court noted, the registration obligations mandated by
3 A-2388-16T1 N.J.S.A. 2C:7-2 are significant and trigger additional
consequences, notably potential criminal liability for failing
to register. Id. at 21-22; see N.J.S.A. 2C:7-2(a)(3) (making it
a third-degree crime for failing to register).1 The notification
provisions require community-wide dissemination of the location
of a sex offender's residence. N.J.S.A. 2C:7-6 to -10
(requiring public notification of a sex offender's residence
upon "release to the community"). The Doe Court concluded the
legislation was "clearly and totally remedial in purpose" and
"designed simply and solely to enable the public to protect
itself from the danger posed by sex offenders." Doe, 142 N.J.
at 73.
Although the law imposed these "lifetime requirements" on
every defendant when convicted, id. at 21, subsection (f)
provided potential relief. "The underlying assumption of
[subsection (f)] [was] that when a registrant, who has been
offense-free for fifteen or more years, no longer poses a risk
to the safety of the public, keeping him bound to the
registration requirements no longer serves a remedial purpose."
C.K., 233 N.J. at 64.
1 The Legislature increased the penalty for failing to register from a fourth-degree to a third-degree crime in 2007. L. 2007, c. 19.
4 A-2388-16T1 Subsection (g) was enacted to comply with 1996 amendments
to the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act of 1994 (Wetterling Act), Pub.
L. No. 104-236, §§ 3-7, 110 Stat. 3096, 3097 (repealed 2006),
and ensure continued federal funds for New Jersey. C.K., 233
N.J. at 61; In re L.E., 366 N.J. Super. 61, 65-66 (App. Div.
2003). The Wetterling Act "direct[ed] the federal Attorney
General to establish guidelines for state programs such as
Megan's Law that require the registration of persons guilty of
offenses of the kind committed by the registrants herein and
prescribes the length of time for which offenders must remain
registered." L.E., 366 N.J. Super. at 66 (citing 42 U.S.C. §
14071(a)(1)) (repealed by U.S.C. §§ 16901-91). "As a result of
the Wetterling Act . . . all fifty states and the District of
Columbia ha[ve] both sex offender registration systems and
community notification programs." United States v. Begay, 622
F.3d 1187, 1190 (9th Cir. 2010).
Congress has since repealed the Wetterling Act and replaced
it with the Adam Walsh Child Protection and Safety Act. C.K.,
233 N.J. at 61 (citing Pub. L. No. 109-248, 120 Stat. 587
(codified at 42 U.S.C. §§ 16901-91 (repealing 42 U.S.C. §§
14071-73))). Title I of that act, the Sex Offender Registration
and Notification Act (SORNA), "establishe[d] a national baseline
5 A-2388-16T1 for sex offender registration and requires that states receiving
federal crime funds substantially comply with the guidelines it
outlines." Ibid. (citing 34 U.S.C. § 20927; 34 U.S.C. §
10151). "[M]ost states, including New Jersey, have not
substantially implemented SORNA." Id. at 61-62 (citation
omitted).
In C.K., 233 N.J. at 76, the Court concluded subsection (g)
violated the due process rights of juveniles, imposing
"continued constraints on their lives and liberty . . . long
after they have become adults," thereby transcending the
remedial purpose of Megan's Law and "tak[ing] on a punitive
aspect that cannot be justified by our Constitution." The Court
was not required to and did not address whether irrevocable
lifetime registration pursuant to subsection (g) applied to a
registrant — adult or juvenile — who committed his offense prior
to subsection (g)'s effective date. See id. at 50 (explaining
C.K. was adjudicated delinquent in 2003).
The Violent Predator Incapacitation Act (VPIA) was enacted
as a "component" of Megan's Law at the time of its passage in
1994. State v. Schubert, 212 N.J. 295, 305 (2012). The VPIA
specifically required that a court impose a "special sentence of
community supervision for life" (CSL) on all defendants
convicted of certain offenses. N.J.S.A. 2C:43-6.4(a). The
6 A-2388-16T1 Legislature subsequently amended the statute, replacing CSL with
parole supervision for life (PSL). L. 2003, c. 267, § 1. The
amendment was more than "a simple change in nomenclature," State
v. Perez, 220 N.J. 423, 441 (2015), and significantly increased
penal consequences for violations of the conditions of
supervision. See State v. Hester, ___ N.J. ___, ___ (2018)
(slip op. at 7-9) (explaining the differences between CSL and
PSL and the consequences of those differences).
However, despite these legislative changes, one provision
of the VPIA that "mirrors [subsection (f)]," In re J.S., 444
N.J. Super. 303, 312 (App. Div.), certif. denied, 225 N.J. 339
(2016), has remained constant. Pursuant to N.J.S.A. 2C:43-
6.4(c), an offender who has not committed a crime for fifteen
years since his last conviction or release, and who no longer
poses a threat to public safety, "may petition the Superior
Court for release from . . . supervision."
Thus, the Legislature's decision to retain N.J.S.A. 2C:43-
6.4(c) results in the anomalous situation of permitting some
registrants, who have clearly and convincingly demonstrated
their successful rehabilitation, relief from the onerous
conditions of lifetime supervision, see N.J.A.C. 10A:71-6.11(b);
Schubert, 212 N.J. at 307 (noting "significant
restrictions . . . attendant to [CSL]"), yet at the same time
7 A-2388-16T1 foreclosing them any relief from lifetime registration and
community notification. In re J.M., 440 N.J. Super. 107, 116-17
(Law Div. 2014).
II.
G.H. pled guilty in 1996 to three counts of second-degree
sexual assault, N.J.S.A. 2C:14-2b and -2(c)(5), and one count of
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b).
The offenses were committed on different dates with different
minor victims. The judge sentenced G.H. in 1997 to concurrent
eight-year terms in the Adult Diagnostic & Treatment Center and
CSL; G.H. was paroled in 2000.
In February 2016, G.H. moved under subsection (f) for
relief from his registration obligations and termination of CSL.
He certified that since his release, he became gainfully
employed, married, had two children and remained offense free.
G.H. also certified that prior to entering his guilty pleas,
based upon discussions with trial counsel, he had a reasonable
expectation he could obtain relief from lifetime registration if
he "remained offense free for fifteen years". G.H. attached
several professional evaluations that generally concluded he
presented no threat to public safety and was unlikely to
recidivate.
8 A-2388-16T1 In an oral opinion following argument, the judge concluded
G.H. had been convicted of more than one sexual offense,
including a conviction for aggravated sexual assault. As a
result, G.H. was ineligible for relief from registration under
subsection (g). However, the judge also concluded that G.H. had
"met his burden for termination of CSL obligations." The judge
entered a conforming order on January 18, 2017, and this appeal
followed.
In 2001, G.A. pled guilty to an accusation alleging he
committed an act of sexual penetration by "using force or
coercion," i.e., second-degree sexual assault, N.J.S.A. 2C:14-
2(c).2 The judge imposed a two-year probationary term, with a
condition that G.A. serve 364 days in the county jail, CSL and
registration under Megan's Law.
After fifteen offense-free years, G.A. sought relief from
registration under subsection (f) and termination of CSL. In
support of his motion, G.A. furnished a report of a recent
psychological evaluation, which stated G.A. was "not likely to
commit another sexual offense and d[id] not present a risk of
harm to others in the community."
2 Before the Law Division judge, G.A. asserted that the offense was not one listed in subsection (g). Although the transcript of G.A.'s guilty plea was unavailable, the judge found G.A. pled guilty to N.J.S.A. 2C:14-2(c)(1), a crime listed in subsection (g). G.A. does not challenge this finding on appeal.
9 A-2388-16T1 In December 2016, the judge granted G.A.'s motion to
terminate CSL. However, in a comprehensive written opinion, the
judge denied G.A. relief from the registration requirements of
Megan's Law. She reasoned that subsection (g) was "curative in
nature," and its retroactive application did not result in a
manifest injustice. The judge entered a conforming order on
March 6, 2017, and this appeal followed.
III.
The issue before us is a question of law which we decide de
novo. State v. Revie, 220 N.J. 126, 132 (2014). Appellants
concede that retroactive application of subsection (g) does not
violate federal or state constitutional prohibitions against ex
post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const.
art. IV, § 7, ¶ 3.3 Rather, they argue general rules of
3 We assume appellants chose not to argue subsection (g) violates ex post facto prohibitions because the Doe Court concluded the registration requirements, as enacted in 1994, which notably permitted relief under subsection (f), were remedial and not punitive. 142 N.J. at 40-75. Indeed, "[t]he majority of state courts . . . have found that retroactive application of their respective sex offender registries to offenders with convictions that pre-date the statute's enactment is not punitive and/or does not violate the prohibition against ex post facto laws." Starkey v. Okla. Dep't of Corr., 305 P.3d 1004, 1037-39 n.10 (Okla. 2013) (Winchester, J., dissenting) (outlining state decisions regarding retroactive application of sex offender registration and notification statutes).
However, there is some disagreement among our sister states who have considered the specific issue of whether subsequent (continued)
10 A-2388-16T1 statutory construction make clear that the Legislature never
intended subsection (g) should apply to registrants sentenced
before its enactment, or, alternatively, regardless of
legislative intent, retroactive application of section (g)
results in a manifest injustice that interferes with
registrants' vested rights to relief.
"The primary goal of statutory interpretation is to
determine as best [as possible] the intent of the Legislature,
(continued) amendments to an otherwise constitutional registration scheme that retroactively increase the time of required registration, eliminate potential relief from registration or otherwise impose additional burdens, violate ex post facto prohibitions. Compare Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009) (residency restriction too punitive when applied retroactively), State v. Letalien, 985 A.2d 4 (Me. 2009) (retroactive application of lifetime registration violated ex post facto clause), Doe v. State, 111 A.3d 1077 (N.H. 2015) (concluding aggregate effects of amendments to previously constitutional regulatory scheme, in particular lifetime registration without review, made the legislation punitive), State v. Williams, 952 N.E.2d 1108 (Ohio 2011) (amendment that increased length of registration period violated state ex post facto prohibition when applied to a defendant who committed the crime before effective date of amendment), and Starkey, 305 P.3d 1004 (Okla. 2013) (finding retroactive application of lifetime registration was punitive and violated ex post facto clause), with Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011) (amendment to registry imposing lifetime requirements for "sexually violent predators" does not violate the ex post facto clause), and State v. Rocheleau, 415 P.3d 422 (Kan. 2018) (retroactive application of amendment that increased registration from ten years to lifetime registration did not violate ex post facto clause). Because the issue is not before us, we do not consider whether the retroactive application of subsection (g) violates the ex post facto clauses of either the United States or New Jersey Constitutions.
11 A-2388-16T1 and to give effect to that intent." In re N.B., 222 N.J. 87, 98
(2015) (alteration in original) (quoting State v. Lenihan, 219
N.J. 251, 262 (2014)). "The intent of the Legislature 'begins
with the language of the statute, and the words chosen by the
Legislature should be accorded their ordinary and accustomed
meaning.'" Lenihan, 219 N.J. at 262 (quoting State v. Hudson,
209 N.J. 513, 529 (2012)). "[I]f a statute's plain language is
ambiguous or subject to multiple interpretations, the Court 'may
consider extrinsic evidence including legislative history and
committee reports.'" State v. Frye, 217 N.J. 566, 575 (2014)
(quoting State v. Marquez, 202 N.J. 485, 500 (2010)).
A.
Initially, we dispense with the State's argument that the
trial courts did not give subsection (g) retroactive effect
because neither G.H. nor G.A. were eligible for termination of
their registration obligations until after the Legislature
adopted the provision in 2002. According to the State, "[t]he
important date for analysis is the date the registrant applied
to terminate . . . his or her obligations under Megan's Law, not
the date of his or her conviction."
In Hester, slip op. at 5, the defendants were sentenced to
CSL prior to a 2014 amendment to the VPIA that increased
12 A-2388-16T1 punishment for violations of CSL.4 They were indicted after the
effective date of the amendment for violating general conditions
of their CSL. Id. at 9. The trial judges dismissed the
indictments as violating the Ex Post Facto Clauses of the state
and federal constitutions. Id. at 10.
On appeal, we held that "the 2014 Amendment retroactively
increased defendants' punishment for a CSL violation by
elevating the penalty from a fourth-degree to a third-degree
crime and by mandating the imposition of PSL." Id. at 10-11
(citing State v. Hester, 449 N.J. Super. 314, 318 (App. Div.
2017)). We "rejected the State's argument that the Amendment
did not increase the punishment for defendants' pre-2014 sex
offenses but rather punished the commission of new crimes -- the
CSL violations." Id. at 11 (citing Hester, 449 N.J. Super. at
328-31).
The Court agreed. Id. at 14, 22. Justice Albin reasoned,
"a law that retroactively 'imposes additional punishment to an
already completed crime' disadvantages a defendant, and
therefore is a prohibited ex post facto law." Id. at 12-14
(quoting Riley v. Parole Bd., 219 N.J. 270, 285 (2014)).
4 Because Hester was decided after the parties argued these appeals, we gave them an opportunity to file supplemental briefs addressing what if any impact Hester had on the issues raised, and what would be the effect on New Jersey's compliance with SORNA if we accorded the relief sought by appellants.
13 A-2388-16T1 "[B]ecause the additional punishment attaches to a condition of
defendants' sentences, the 'completed crime' necessarily relates
back to the predicate offense." Id. at 14 (citations omitted).
The State argues Hester has no application because G.H. and
G.A. concede that applying subsection (g) to their motions for
relief in the Law Division did not violate the Constitutions.
However, the Court has explained that "[a] law is retrospective
if it 'appl[ies] to events occurring before its enactment' or
'if it changes the legal consequences of acts completed before
its effective date.'" Riley, 219 N.J. at 285 (alteration in
original) (emphasis added) (quoting Miller v. Florida, 482 U.S.
423, 430 (1987)). Here, the Legislature's adoption of
subsection (g) "change[d] the legal consequences" of the guilty
pleas G.H. and G.A. entered prior to its enactment. At the time
of their convictions, both faced the prospect of presumptive
lifetime registration, but both retained the possibility of
relief pursuant to subsection (f). The trial courts'
retroactive application of subsection (g) eliminated that
opportunity, thereby changing the legal consequences of G.H.'s
and G.A.'s convictions entered years earlier.
That relief from registration is conditioned upon future
events, i.e., fifteen offense-free years and the ability to
convince a judge the registrant is "not likely to pose a threat
14 A-2388-16T1 to the safety of others[,]" N.J.S.A. 2C:7-2(f), does not change
the retroactivity analysis. For example, in INS v. St. Cyr, 533
U.S. 289, 293 (2001), the Supreme Court considered the effect of
the repeal of § 212(c) of the Immigration and Nationality Act,
which gave the Attorney General discretion to waive deportation
of resident aliens, on a lawful permanent resident who faced
deportation after pleading guilty to selling a controlled
substance.
Under the law applicable at the time of his conviction, St.
Cyr would have been eligible for a § 212(c) waiver. Ibid.
However, prior to removal proceedings being initiated against
him, Congress enacted the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), which limited
the class of aliens who could apply for deportation relief. The
Government argued St. Cyr was no longer eligible for a waiver.
Ibid.
The Court held that St. Cyr's eligibility for discretionary
relief was not foreclosed by the repeal of § 212(c). Id. at
326. The Court concluded Congress had not clearly expressed an
intention to make IIRIRA § 304(b), the repealing statute,
retroactive, yet the government sought to apply it retroactively
to St. Cyr. Justice Souter explained "[t]he inquiry into
15 A-2388-16T1 whether a statute operates retroactively demands a commonsense,
functional judgment about whether the new provision attaches new
legal consequences to events completed before its enactment."
Id. at 321 (emphasis added) (citation omitted); see Riley, 219
N.J. at 285.
The Court found that "[t]here is a clear difference, for
the purposes of retroactivity analysis, between facing possible
deportation and facing certain deportation[,]" id. at 325, and
concluded "new legal consequences" were attached to "completed"
events if St. Cyr "would have been eligible for § 212(c) relief
at the time of [his] plea under the law then in effect." Id. at
321, 326. Depriving St. Cyr of the benefits of a plea entered
when § 212(c) discretionary relief was available would "be
contrary to familiar considerations of fair notice, reasonable
reliance, and settled expectations." Id. at 323 (citation
In short, contrary to the State's argument, the trial
courts in this case applied subsection (g) retroactively to
affect the legal consequences of G.H.'s and G.A.'s guilty pleas
entered prior to subsection (g)'s enactment.
B.
"It is well-settled that statutes generally should be given
prospective application." In re D.C., 146 N.J. 31, 50 (1996)
16 A-2388-16T1 (citing Gibbons v. Gibbons, 86 N.J. 515, 521 (1981)).
"[R]etroactive application of new laws involves a high risk of
being unfair." Gibbons, 86 N.J. at 522 (citation omitted).
"The preference for prospective application of new legislation
'is based on our long-held notions of fairness and due
process.'" James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563
(2014) (quoting Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J.
33, 45 (2008)). "It is 'presumed that provisions added by [an]
amendment affecting substantive rights are intended to operate
prospectively.'" D.C., 146 N.J. at 50 (quoting Schiavo v. John
F. Kennedy Hosp., 258 N.J. Super. 380, 385 (App. Div. 1992),
aff'd o.b., 131 N.J. 400-01 (1993)).
In deciding whether a statute could apply retroactively, we
consider "whether the Legislature intended to give the statute
retroactive application," and "whether retroactive application
of that statute will result in either an unconstitutional
interference with vested rights or a manifest injustice."
James, 216 N.J. at 563 (quoting D.C., 146 N.J. at 50). The
Legislature's intent may be expressed or implied. Id. at 564.
"Implied retroactivity may be found from the statute's operation
when retroactive application is necessary to fulfill legislative
intent." Ibid. (citations omitted). An "expression of
legislative intent should be given effect absent a compelling
17 A-2388-16T1 reason not to do so." Ibid. (citing Nobrega v. Edison Glen
Assocs., 167 N.J. 520, 537 (2001)).5
Certainly, the Legislature did not explicitly provide that
subsection (g) applied retroactively, i.e., to those convicted
of sex offenses prior to 2002. Instead, the Legislature
provided subsection (g) would be "effect[ive] immediately," L.
2001, c. 392, § 2. "Such language 'bespeak[s] an intent
contrary to, and not supportive of, retroactive application.'"
Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 389 (2016)
(quoting Cruz, 195 N.J. at 48).
The State correctly points out that the Legislature made
subsection (g) applicable to any registrant who "has been
convicted" of certain crimes, not to anyone who "is" or
"hereafter is" convicted of those crimes. The Legislature's use
of the present perfect tense indicates subsection (g) applies to
an action completed, although not at any definite time in the
past. See In re Adoption of N.J.A.C. 71I, 291 N.J. Super. 183,
191 (App. Div. 1996) (noting, "[g]rammatically, 'has been
5 A statute also may be applied retroactively if it is "curative," that is, designed to address some imperfection in the existing statute, or if the parties' expectations warrant retroactive application. James, 216 N.J. at 564-65 (citations omitted). "The[se] latter two categories of potential retroactive application are not implicated in this appeal." NL Industries, Inc. v. State, 228 N.J. 280, 295 (2017). We only note that the trial judge in G.A. erred to the extent she found subsection (g) was "curative."
18 A-2388-16T1 located' is the present perfect tense, which expresses an action
completed by the present time, although when it was completed is
not determined"); see also Barrett v. United States, 423 U.S.
212, 216 (1976) (observing that Congress used the present
perfect tense to "denot[e] an act that has been completed").
However, the Court has repeatedly said, "a statute [that]
changes the settled law and relates to substantive rights is
prospective only, unless there is an unequivocal expression of
contrary legislative intent." Dewey v. R.J. Reynolds Tobacco
Co., 121 N.J. 69, 95 (1990) (emphasis added); e.g., Johnson, 226
N.J. at 397 ("Because the 2011 amendment altered settled law, we
would expect to find an unequivocal statement that it was to be
applied retroactively."); accord Bunk v. Port Auth., 144 N.J.
176, 194 (1996); Phillips v. Curiale, 128 N.J. 608, 617 (1992).
From its initial enactment, our courts have viewed "[a]ll
of Megan's Law's provisions" as part of a comprehensive scheme,
"a legitimate regulatory measure" in faithful service to the
Legislature's public safety objectives. J.S., 444 N.J. Super.
at 310-11 (citing Doe, 142 N.J. at 25, 73). Subsection (f) was
part and parcel of the Legislature's reasonable conclusion that
"the risk of reoffense can be fairly measured, and that
knowledge of the presence of offenders provides increased
defense against them." In re A.D., 441 N.J. Super. 403, 419
19 A-2388-16T1 (App. Div. 2015) (quoting Doe, 142 N.J. at 25), aff'd o.b. 227
N.J. 626 (2017). Subsection (g) altered settled law in that
certain registrants, like G.H. and G.A., can no longer terminate
their registration obligations even though they no longer pose a
threat to the safety of others, as actually found by the trial
courts when each judge granted appellants relief from CSL
pursuant to N.J.S.A. 2C:43-6(c).
The State argues we should infer the Legislature intended
retroactive application of subsection (g) because a different
interpretation "would be contrary to the public safety purpose
underlying the amendment and Megan's Law itself." This argument
ignores the fact that the Legislature believed Megan's Law, as
originally enacted in 1994, fully satisfied its public safety
objectives, even though it permitted potential relief from
registration pursuant to subsection (f).
Moreover, the legislative history of subsection (g)
supports no such assertion. The sponsor and committee
statements in both the Assembly and the Senate make clear that
subsection (g) was enacted to meet the requirements of the now
repealed Wetterling Act and to insure continued federal funding.
See Sponsor's Statement to S. 2714 (Nov. 19, 2001); Senate Law
and Pub. Safety Comm., Statement to S. 2714 (Nov. 29, 2001);
20 A-2388-16T1 Sponsor's Statement to A. 3987 (Dec. 6, 2001); Assembly Law and
Pub. Safety Comm., Statement to A. 3987 (Dec. 13, 2001).
Importantly, the Wetterling Act neither "require[d] states
accepting funds to impose . . . registration requirement[s]
retroactively on individuals previously convicted of sex
offenses," nor "'preclude[d] states from imposing any new
registration requirements on offenders convicted prior to the
establishment of the registration system.'" United States v.
Shoulder, 738 F.3d 948, 950 (9th Cir. 2013) (quoting Final
Guidelines for Megan's Law and the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act,
62 Fed. Reg. 39,009, 39,013 (July 21, 1997)). In other words,
the Legislature's stated purpose for enacting subsection (g) —
securing federal funding by complying with federal law — was
fully served without retroactive application of the new statute.
In short, there is little to suggest the Legislature
intended subsection (g) apply retroactively to those who were
"convicted or released" prior to 2002. As a result, we need not
determine whether retroactive application of subsection (g)
"would result in unconstitutional interference with 'vested
rights' or a 'manifest injustice.'" Johnson, 226 N.J. at 394
(citing Nobrega, 167 N.J. at 537). However, for the sake of
completeness, we consider those issues.
21 A-2388-16T1 "Retroactive legislation that impairs or destroys a 'vested
right' may violate the due process clauses of the federal . . .
or state . . . constitutions," Twiss v. State, 124 N.J. 461, 469
(1991), but due process does not "prohibit retroactive civil
legislation unless the consequences are particularly harsh and
oppressive." Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J.
473, 499 (1983). A "'vested right' encompasses a fixed interest
entitled to protection from state action." Twiss, 124 N.J. at
470.
The Court explained the "essence of [the manifest
injustice] inquiry" is "whether the affected party relied, to
his or her prejudice, on the law that is now to be changed as a
result of the retroactive application of the statute, and
whether the consequences of this reliance are so deleterious and
irrevocable . . . it would be unfair to apply the statute
retroactively." Gibbons, 86 N.J. at 523-524 (citations
omitted). It is an equitable doctrine that does not flow from
constitutional requirements. Nobrega, 167 N.J. at 545 (citation
omitted). "The manifest injustice analysis requires 'a weighing
of the public interest in the retroactive application of the
statute against the affected party's reliance on previous law,
and the consequences of that reliance.'" Id. at 547 (quoting
Nelson v. Bd. of Educ. of Tp. of Old Bridge, 148 N.J. 358, 371
22 A-2388-16T1 (1997)). "In the modern context, a key element in evaluating
retroactive change is whether the Legislature has denied a
claimant all remedies or has modified available remedies."
Phillips, 128 N.J. at 626.
Appellants had no vested right to relief from their
registration obligations. As originally enacted, Megan's Law
presumed they would be subject to lifetime registration;
subsection (f) provided conditional relief contingent not only
upon G.H.'s and G.A.'s own conduct, but also upon their ability
to persuade a judge they no longer posed a threat to public
safety. More importantly, "[t]here can be no vested right in
the continued existence of a statute . . . which precludes its
change or repeal." Phillips, 128 N.J. at 620 (citations
However, at the time of their guilty pleas, appellants
could reasonably rely upon the possibility of relief from
lifetime registration. The retroactive application of
subsection (g) does not modify a remedy but eliminates an
incentive integral to Megan's Law remedial purpose by denying
certain registrants any relief from the obligations inherent in
lifetime registration, along with the attendant opprobrium and
potential criminal liability. Weighing that against the
public's interest in the safety of the community, which was
23 A-2388-16T1 adequately served by subsection (f) prior to the passage of
subsection (g), we conclude retroactive application of
subsection (g) to G.H. and G.A. would be manifestly unjust.
Lastly, we asked the parties to address whether according
appellants relief in these appeals would affect New Jersey's
compliance with SORNA. Under SORNA, sex offenders are
classified as Tier I, Tier II, or Tier III offenders, depending
on the severity of the underlying offense. 34 U.S.C. § 20911(2),
(3) and (4). SORNA also increased the time of registration for
certain classes of sex offenders, requiring: (1) 15 years for
Tier I offenders, less a possible five-year reduction based on
maintaining a "clean record" for 10 years; (2) 25 years for Tier
II offenders; and (3) lifetime for Tier III offenders, absent a
reduction to 25 years only for juvenile offenders based on
maintaining a "clean record" for 25 years. 34 U.S.C. § 20915
(a) and (b).
Congress gave the United States Attorney General the
authority to promulgate regulations and guidelines regarding
SORNA's retroactive application to those convicted of sex
offenses prior to the legislation's enactment. 34 U.S.C. §
20913(d). The Attorney General has since issued guidelines
indicating that SORNA applies to those state registrants whose
convictions pre-date SORNA. National Guidelines for Sex
24 A-2388-16T1 Offender Registration and Notification, 73 Fed. Reg. 38,030
(July 2, 2008). In addition, the "Attorney General may exempt a
state from implementing a provision of SORNA that 'would place
the jurisdiction in violation of its constitution, as determined
by a ruling of the jurisdiction's highest court[,]'" thus, "[i]n
short, a state's highest court can declare unconstitutional a
state's sex-offender registration provision without necessarily
jeopardizing a state's federal funding." C.K., 233 N.J. at 63.6
Appellants argue that New Jersey currently is not compliant
with SORNA, id. at 62, our Legislature has twice declined to
adopt the more onerous registration requirements in SORNA,7 and
if the Legislature were to enact SORNA, registrants would likely
challenge its constitutionality and certainly its retroactive
application.
The State asserts, without citation, that New Jersey
currently loses ten percent of its potential federal funding
6 We note that at least two state courts — Maine and New Hampshire — have specifically concluded the retroactive application of a lifetime registration requirement violated their state constitutions. See Letalien, 985 A.2d at 26 (retroactive lifetime ban without any ability to seek relief as before violated ex post facto clause); Doe, 111 A.3d at 1093- 1100 (lifetime registration without relief, along with other amendments, violated ex post facto clause). 7 The Legislature has not acted on two bills introduced in the Assembly in 2012 and 2014. See S.850/A.764 (2012); S. 1702/A.3832 (2014).
25 A-2388-16T1 because it does not comply with SORNA, and granting appellants
relief in this case would necessarily implicate subsection (g)'s
retroactive application to other registrants, thereby making it
"more difficult for New Jersey to receive full federal funding
under SORNA." The State contends that lifetime registration for
certain offenders, like G.H. and G.A., meets SORNA's Tier III
requirements.
In 2016, the Department of Justice, Office of Justice
Programs, Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART), issued its
"SORNA Substantial Implementation Review – State of New Jersey."
U.S. Dep't of Justice, Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking, SORNA
Substantial Implementation Review State of New Jersey (July
2016), https://smart.gov/pdfs/sorna/newjersey-hny.pdf. That
review noted:
SORNA requires that offenses be classified based on the nature of the offense of conviction. The SMART Office has reviewed all statutes identified in New Jersey's materials and has identified New Jersey's placement of these statutes within the SORNA three tier levels . . . .
New Jersey's current registration and notification scheme includes two categories of registrants: 1) offenders determined by a court to be repetitive and compulsive, who are deemed lifetime registrants required to report to local law enforcement every 90-
26 A-2388-16T1 days to verify registration information; and 2) lifetime registrants who are required to report to local law enforcement each year to verify registration information.
[Id. at 3.]
SMART concluded, "Because New Jersey initially requires all sex
offenders to register for life, New Jersey meets the SORNA
requirements of this section." Ibid. (footnote omitted).
However, SMART also reviewed New Jersey's "Reduction of
Registration Periods," i.e., subsection (f), which, as already
noted does not comply with SORNA. SMART wrote:
New Jersey deviates from SORNA in its allowance of reduced registration periods. Sex offenders may apply to the court to be removed from the sex offender registry if they committed only one offense, have not committed another offense for 15 years, and prove that they are not likely to pose a threat to the safety of others. Juveniles may also apply to the court to be removed from the sex offender registry if they were under the age of 14 at the time of their offense but are now over the age of 18.
Because New Jersey uses a discretionary process to determine higher frequency of registration reporting and allows a broader class of registrants than SORNA prescribes to petition for removal, New Jersey does not meet the SORNA requirements of this section.
[Id. at 7 (emphasis added).]
Thus, contrary to the State's assertion, it appears that
subsection (f), permitting a broad range of registrants relief
27 A-2388-16T1 from registration, is a fundamental reason why New Jersey is not
complying with SORNA.
In any event, whether the retroactive application of
subsection (g) would further delay compliance with SORNA is not
properly before us, having never been raised in the trial
courts. We conclude only that the retroactive application of
section (g) to G.H. and G.A. was not expressly or impliedly
intended by the Legislature, and, even if it were, retroactive
application would be manifestly unfair in these circumstances.
We therefore reverse the orders under review and remand the
matters to the respective trial courts, which shall conduct
hearings on whether appellants currently qualify for the relief
provided by subsection (f).
Reversed and remanded. We do not retain jurisdiction.
28 A-2388-16T1