In re G.H.
In re G.H.
Opinion of the Court
*520We 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, *521N.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.,
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 *1063N.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 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 *522the Legislature intended subsection (g) to apply retroactively to registrants like G.H. and G.A.
I.
In Doe v. Poritz,
Although the law imposed these "lifetime requirements" on every defendant when convicted,
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,
*523C.K.,
*1064L.E.,
Congress has since repealed the Wetterling Act and replaced it with the Adam Walsh Child Protection and Safety Act. C.K.,
In C.K.,
*524The 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,
However, despite these legislative changes, one provision of the VPIA that "mirrors [subsection (f) ]," In re J.S.,
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,
II.
G.H. pled guilty in 1996 to three counts of second-degree sexual assault, *1065N.J.S.A. 2C:14-2b and -2(c)(5), and one count of first-degree *525aggravated 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.
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).
After fifteen offense-free years, G.A. sought relief from registration under subsection (f) and termination of CSL. In support of his *526motion, 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."
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,
"The primary goal of statutory interpretation is to determine as best [as possible] the intent of the Legislature, and to give effect to that intent." In re N.B.,
A.
Initially, we dispense with the State's argument that the trial courts did not give subsection (g) retroactive effect because neither *528G.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, at 318, the defendants were sentenced to CSL prior to a 2014 amendment to the VPIA that increased punishment for violations of CSL.
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 241 (citing State v. Hester,
The Court agreed. Id. at 240-43, 246. 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 242-43 (quoting Riley v. Parole Bd.,
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,
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 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,
Under the law applicable at the time of his conviction, St. Cyr would have been eligible for a § 212(c) waiver.
The Court held that St. Cyr's eligibility for discretionary relief was not foreclosed by the repeal of § 212(c).
The Court found that "[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation[,]"
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.,
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,
Certainly, the Legislature did not explicitly provide that subsection (g) applied *1069retroactively, 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. *532"Such language 'bespeak[s] an intent contrary to, and not supportive of, retroactive application.' " Johnson v. Roselle EZ Quick LLC,
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,
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.,
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.,
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); Sponsor's Statement to A. 3987 *1070(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,
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,
"Retroactive legislation that impairs or destroys a 'vested right' may violate the due process clauses of the federal ... or state ... constitutions," Twiss v. State,
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,
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,
However, at the time of their guilty pleas, appellants could reasonably *1071rely 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 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.
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.
Appellants argue that New Jersey currently is not compliant with SORNA,
The State asserts, without citation, that New Jersey currently loses ten percent of its potential federal funding because it does not comply with SORNA, and granting appellants relief in this *537case 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. *1072In 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-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."
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.
*538[Id. at 7 (emphasis added).]
Thus, contrary to the State's assertion, it appears that subsection (f), permitting a broad range of registrants relief 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.
The Legislature increased the penalty for failing to register from a fourth-degree to a third-degree crime in 2007. L. 2007, c. 19.
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.
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.
However, there is some disagreement among our sister states who have considered the specific issue of whether subsequent 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,
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.
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.
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,
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,
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).
Reference
- Full Case Name
- In the MATTER OF Registrant G.H. In the Matter of Registrant G.A.
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- 12 cases
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