L.A. et al v. HOFFMAN
Filing
36
OPINION filed. Signed by Judge Freda L. Wolfson on 10/28/2015. (mmh)
*FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
L.A. and Z.R, on behalf of Z.Kh., Z.Y., :
Z.I., and Z.A., individually and on behalf of :
all others similarly situated,
:
:
Plaintiffs, :
:
v.
:
:
JOHN J. HOFFMAN, Acting Attorney
:
General of the State of New Jersey,
:
:
Defendant. :
Civ. Action No.:14-6895 (FLW)
OPINION
WOLFSON, United States District Judge:
Pro se Plaintiffs L.A. and Z.R. (collectively, “Plaintiffs”), who are convicted sex offenders,
bring this case 1 on behalf of themselves and similarly situated individuals (“Class A”), as well as
their minor children, Z.Kh., Z.Y., Z.I., and Z.A. (collectively, the “Minor Plaintiffs”), and similarly
situated individuals (“Class B”), challenging recent amendments to the New Jersey Megan’s Law 2
(“the Amended Statute”), which require the publication of certain of Plaintiffs’ personal
information to the New Jersey Sex Offender Internet Registry (“NJSOIR”). Plaintiffs have alleged
the following violations of federal constitutional rights, through 42 U.S.C. § 1983, and similar
violations of New Jersey constitutional rights: denial of substantive due process to all plaintiffs
This case was originally assigned to the Honorable Joel A. Pisano, U.S.D.J. (retired), and
upon his retirement, it was reassigned to me on March 10, 2015.
1
New Jersey’s Megan’s Law was passed to address “[t]he danger of recidivism posed by
sex offenders and offenders who commit other predatory acts against children, and the dangers
posed by persons who prey on others as a result of mental illness . . . .” N.J.S.A. 2C:7-1.
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2
(Counts 1 and 2); denial of procedural due process to Plaintiffs and Class A (Count 3); denial of
equal protection to Plaintiffs and Class A (Counts 4 and 5); and denial of equal protection to Minor
Plaintiffs and Class B (Count 6). In the instant matter, Defendant John Hoffman, the Acting
Attorney General of the State of New Jersey, (“Defendant” or the “State”) moves, pursuant to Fed.
R. Civ. P. 12(b)(6), to dismiss Plaintiffs’ Complaint for failure to state a claim. While the pro se
Plaintiffs oppose the motion, they also move for appointment of pro bono counsel, pursuant to 28
U.S.C. § 1915(e)(1), to represent them, as well as Minor Plaintiffs.
For the reasons set forth below, Defendant’s motion to dismiss is granted in part and denied
in part. The Court dismisses all claims of Minor Plaintiffs and the substantive due process and
equal protection claims asserted by Plaintiffs. However, Plaintiffs’ procedural due process claim
may proceed. Additionally, the Court grants Plaintiffs’ application for pro bono counsel to
represent Plaintiffs, but denies Plaintiffs’ pro bono counsel application on behalf of Minor
Plaintiffs as moot.
I.
Background
The following allegations are taken from Plaintiffs’ Complaint and are accepted as true for
the purposes of this motion to dismiss. Because Plaintiffs have explicitly relied on exhibits attached
to their Complaint to support factual allegations integral to their claims, I rely on these exhibits
when necessary to clarify Plaintiffs’ allegations. See In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997) (A “document integral to or explicitly relied upon in the complaint
may be considered without converting the motion [to dismiss] into one for summary judgment.”
(citation and internal quotations omitted)).
Plaintiffs were previously convicted of sex offenses in the State of New Jersey. Compl.
¶ 11. In 2002, Plaintiff Z.R. pled guilty to second-degree endangering the welfare of a child, that
2
was “however, treated as third-degree.” Compl. ¶ 25. In 2005, Plaintiff L.A. was convicted of
second-degree criminal sexual contact and third-degree endangering the welfare of a child, for
molesting and photographing his fourteen-year-old stepdaughter, as well as first-degree
endangering the welfare of a child, for possession of child pornography. Compl. ¶ 14. At the time
of their respective sentencings, the courts found that each Plaintiff’s conduct “was characterized
by a pattern of compulsive and repetitive behavior.” Compl. ¶ 11. Based on this finding, and
Plaintiffs’ willingness to undergo treatment, Plaintiffs were sent to the Adult Diagnostic Treatment
Center (“ADTC”), instead of prison, to serve their sentences, as well as to receive therapy. Compl.
¶¶ 11, 78-79. After their release from ADTC, pursuant to Megan’s Law, Plaintiffs underwent
assessment of their risk of re-offense and were found to have a low risk of re-offense. Compl. ¶ 11.
Accordingly, Plaintiffs were designated Tier 1 offenders (the lowest of three possible tiers) and
were, therefore exempt from listing on the NJSOIR. 3 Compl. ¶¶ 11, 86-88. Plaintiff Z.R. has been
living in the community, offense-free, for nearly ten years. Compl. ¶ 34. He currently works as an
IT specialist and paralegal, and shares joint custody of his children with his ex-wife. Compl. ¶¶ 2930. Similarly, Plaintiff L.A. has been living in the community, offense-free, for over two years,
since his release in February, 2013. Compl. ¶ 12. “He currently resides in a boarding home while
he pursues his education so as to enable him to start his own business” and retains parental rights
to his two sons. Compl. ¶¶ 17-18.
The NJSOIR includes information about an offender’s name and aliases, sex offenses for
which the offender was convicted, the determined risk of re-offense (moderate or high), physical
3
Sex offenders are assigned to three tiers based on their risk of re-offense: Tier 1 contains lowrisk offenders, Tier 2 contains moderate-risk offenders, and Tier 3 contains high-risk offenders.
Compl. ¶¶ 86-88.
3
description, car, address, and photograph. N.J.S.A. 2C:7-13(g). Had Plaintiffs been designated
Tier 2 (moderate risk of re-offence) or Tier 3 (high risk of re-offence), or had a court specifically
ordered that they be added to the NJSOIR notwithstanding their designations of Tier 1, such
information would have been made available to the public via the NJSOIR website, with limited
exceptions. N.J.S.A. 2C:7-13(b)-(c). The New Jersey legislature has expressed that publishing
such information to the internet will enable potential victims of recidivist sex offenders to better
protect themselves from sexual assault. N.J.S.A. 2C:7-12.
Recently, however, the New Jersey legislature enacted New Jersey Senate Bill S276, which
as of July 2014, amended Megan’s Law and mandated that sex offenders who had been found
compulsive and repetitive at sentencing be listed on the NJSOIR, regardless of their classification
as low risk to re-offend. Compl. ¶ 1. Plaintiffs allege that in July 2014, based on this amendment,
the New Jersey Attorney General directed the addition to the NJSOIR of all Tier 1 and Tier 2
individuals previously found to be compulsive and repetitive, including Plaintiffs. Compl. ¶¶ 9193. Because of their addition to the NJSOIR, Plaintiffs claim that they will suffer harassment, loss
of employment and housing, possible physical abuse and assault, psychological trauma, and
property damage. Compl. ¶ 47. In support of these allegations, Plaintiffs assert that other
individuals who have been listed on public sex offender registries have been severely injured
physically, psychologically, and economically by public backlash and the retaliatory attacks of
private parties. Compl. ¶ 158. Plaintiffs further allege that such attacks often endanger or harm
minor children of listed offenders, forcing offenders to move out of the familial home for fear of
injury to their children. Compl. ¶ 168.
Plaintiffs also aver that scientific studies have demonstrated that convicted sex offenders
who are found compulsive and repetitive at sentencing are actually less likely to re-offend than
4
convicted sex offenders without such a finding. Compl. ¶ 121. Plaintiffs ascribe this difference to
the treatment compulsive and repetitive sex offenders receive at ADTC. Compl. ¶¶ 124-25.
Additionally, Plaintiffs claim that convicted sex offenders who are found compulsive and
repetitive at sentencing, but are later assessed as having a low risk of reoffending for the purposes
of tier designation, and who have been living offense free in the community for at least eight years,
are actually less likely to commit a subsequent sex offense than any randomly selected male
member of the general public. Compl. ¶¶ 126-39. Plaintiffs submit that because they are
statistically less likely to offend than other convicted sex offenders not listed on the NJSOIR, and
any male in general, adding them to the NJSOIR does not serve any rational purpose of the State. 4
Compl. ¶ 48.
In their Complaint, Plaintiffs challenge the well-settled notion that the NJSOIR can
rationally be expected to serve its express purpose of protecting the public from recidivist sex
offenders. Specifically, Plaintiffs allege that the NJSOIR does not protect children from stranger
recidivist sex offenders in their neighborhoods. Compl. ¶ 144 Plaintiffs further allege that only a
small percentage of sexual assaults are committed by strangers or recidivists. Id. Moreover,
Plaintiffs contend that those strangers who do commit sexual assaults, do so far from their own
neighborhood. Compl. ¶ 152. Plaintiffs also cite to an unspecified statistical study which concludes
that offender registries in general do not enhance public safety. Compl. ¶ 155. Thus, Plaintiffs
allege that providing the public with a list of convicted sex offenders in their neighborhood does
Plaintiffs’ argument in this regard is based on a study that focused on convicted sex
offenders who have been living offense free in the community for at least eight years. Seemingly,
Plaintiffs’ argument based on this study does not apply to Plaintiff L.A., because he has only been
released from incarceration since February 2013.
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little to help protect the citizens at large, or their children, from sexual assault. In that regard,
Plaintiffs maintain that the toxic social environment that the NJSOIR creates for sex offenders
actually increases their risk of recidivism. Compl. ¶ 178.
On October 29, 2014, Plaintiffs filed their Complaint and requested to proceed in forma
pauperis; the case was assigned to Judge Pisano (retired), who denied Plaintiffs’ request, finding
that Plaintiffs did not meet the requirement to be indigent litigants for the purpose of paying the
filing fees. Thereafter, Plaintiffs paid the fees and the Complaint was filed. The Complaint is
brought by Plaintiffs on their own behalf as well as on behalf of Minor Plaintiffs, Class A members,
and Class B members. Class A consists of convicted sex offenders whose conduct was found, at
sentencing, to be compulsive and repetitive, but who, upon release, were not listed on the NJSOIR
because they were either 1) assessed as low risk to re-offend or 2) assessed as moderate risk to reoffend, but found to fall under one of the statutory exceptions to mandatory listing on the NJSOIR.
Class B consists of minor children under the guardianship of Class A members and for whom Class
A members retain parental rights.
The Complaint alleges that, by enforcing the Amended Statute, the New Jersey Attorney
General has violated the rights of Plaintiffs, Minor Plaintiffs, Class A members, and Class B
members through 42 U.S.C. § 1983 under the First and Fourteenth Amendments to the U.S.
Constitution, as well as under the New Jersey Constitution. Plaintiffs explicitly state that they are
not bringing any claims under theories of ex post facto application of law or double jeopardy. Pl.
L.A.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss p. 28. As remedies, Plaintiffs seek to
enjoin the State from enforcing the Amended Statute, as well as to declare the Amended Statute
itself, and as applied to Plaintiffs and Class A members, unconstitutional. In lieu of an answer,
Defendant moves to dismiss the Complaint.
6
After a full briefing of Defendant’s motion to dismiss, the Court ordered Plaintiffs to show
cause why the claims they assert on behalf of Minor Plaintiffs should not be dismissed without
prejudice, because “a non-attorney parent must be represented by counsel in bringing an action on
behalf of his or her child.” See Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876,
882-83 (3d Cir. 1991) (quoting Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59,
61 (2d Cir. 1990)). In response, Plaintiffs moved for the appointment of pro bono counsel to
represent Minor Plaintiffs. Defendant did not oppose this motion. Additionally, Plaintiffs have
applied for appointment of pro bono counsel to represent Plaintiffs and the classes named in the
Complaint.
II.
Standard of Review
When reviewing a motion to dismiss on the pleadings, courts “accept all factual allegations
as true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and internal quotations omitted).
The factual allegations set forth in a complaint “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). As the Third Circuit
summarized: “‘stating . . . [a] claim requires a complaint with enough factual matter (taken as true)
to suggest’ the required element. This ‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery
will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550
U.S. at 555); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118
(3d Cir. 2013) (“[A] claimant does not have to set out in detail the facts upon which he bases his
claim. The pleading standard is not akin to a probability requirement; to survive a motion to
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dismiss, a complaint merely has to state a plausible claim for relief.” (citation and internal
quotations omitted)). Moreover, where the plaintiff is proceeding pro se, the complaint should be
“liberally construed,” and, “however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citation
omitted).
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Additionally, claim for relief must be plausible. Id. at 679. Therefore, “a court considering a motion
to dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. Ultimately, “a complaint must do more
than allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with
its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). However, “a district
court ruling on a motion to dismiss may not consider matters extraneous to the pleadings . . .
[although a] limited exception exists for documents that are integral to or explicitly relied upon in
the complaint.” W. Pa. Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n. 6 (3d Cir. 2010)
(quoting Burlington, 114 F.3d at 1426) (internal quotations omitted).
The Third Circuit has reiterated that “judging the sufficiency of a pleading is a contextdependent exercise” and “[s]ome claims require more factual explication than others to state a
plausible claim for relief.” Id. at 98. That said, the Rule 8 pleading standard is applied “with the
same level of rigor in all civil actions.” Id. (quoting Iqbal, 556 U.S. at 684) (internal quotations
omitted).
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III.
Analysis
a. Substantive Due Process
At the outset, I note that Plaintiffs’ Complaint is not a model of clarity. It is difficult for
the Court to discern the specific types of injuries they allege. Rather, Plaintiffs broadly allege that
the Amended Statute violates their fundamental rights granted by the United States and New Jersey
constitutions. It appears, however, Plaintiffs’ claims can be categorized into three main types of
injury: 1) violation of their privacy rights by publishing their personal information; 2) violation of
their privacy rights as a result of potential harassment and attacks by the community, which will
prevent them from freely making decisions regarding marriage, procreation, child care, housing,
or employment, for fear of injury to their family; and 3) violation of their right to freedom of
association, since harassment and attacks by the community will prevent them from freely forming
social connections, for fear of injury to their friends. 5
The Fourteenth Amendment Due Process Clause denies states the power to “deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The
fundamental rights protected by the Due Process Clause include most of the rights enumerated in
the Bill of Rights. Duncan v. State of Louisiana, 391 U.S. 145, 147-48 (1968). Among these
protected rights is the freedom of association, which Plaintiffs raise. Roberts v. U.S. Jaycees, 468
U.S. 609, 618 (1984). Also protected under the Fourteenth Amendment is a set of rights
characterized as “privacy” rights. Whalen v. Roe, 429 U.S. 589, 599-600 (1977). Privacy rights
5
Additionally, Plaintiffs allege that their reputations will be damaged by the publication of
their conviction records to the NJSOIR, but the Supreme Court has stated that “mere injury to
reputation, even if defamatory, does not constitute the deprivation of a liberty interest.” Conn.
Dep't of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003). Thus, under well-settled law, Plaintiffs can
have no due process claims arising from their injured reputations.
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can be divided into two categories: 1) an “interest in avoiding disclosure of personal matters” and
2) “the interest in independence in making certain kinds of important decisions.” Id. This second
category of privacy rights involves “matters relating to marriage, procreation, contraception,
family relationships, and child rearing and education.” Paul v. Davis, 424 U.S. 693, 713 (1976).
Plaintiffs allege that the Amended Statute violates their rights to privacy in both information and
important decisions, as well as their right to freedom of association, because 1) their personal
information will be made public, and 2) their ability to make important life decisions and 3)
associate freely is hampered by public backlash and violence against listed sex offenders. 6
A number of the injuries that Plaintiffs allege arise from the actions of private parties, rather
than governmental entities. However, the Fourteenth Amendment only protects against
constitutional violations by the state, and therefore it “offers no shield” against “private conduct,
6
Plaintiffs also allege that their previous designation as Tier 1 at their tier hearings gave them
settled expectations that their information would not be published to the NJSOIR. Compl. ¶¶ 4748. Plaintiffs contend that because the Amended Statute retroactively affects important life
decisions, such as marriage and procreation, which they made in reliance on these settled
expectations, it is unconstitutional. Plaintiffs argue that courts have previously found the
retroactive application of a civil statute, which affects reliance interests arising from prior judicial
decisions is unconstitutional. However, Plaintiffs misapply legal precedent.
I note that Plaintiffs explicitly do not allege a constitutional violation under any theories of ex
post facto application of law or double jeopardy. Pl. L.A.’s Mem. of Law in Opp’n to Def.’s Mot.
to Dismiss p. 28. Instead, they rely on two kinds of cases: 1) cases involving unconstitutional
retroactive takings of property in violation of the Fifth Amendment Takings Clause (E. Enterprises
v. Apfel, 524 U.S. 498 (1998)) and 2) cases analyzing whether a statute should be interpreted to
apply retroactively, absent a clear indication from Congress that it intended such a result (Landgraf
v. USI Film Prods., 511 U.S. 244 (1994); Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004);
Oberhand v. Dir., Div. of Taxation, 193 N.J. 558 (2008)). Pl. Z.R.’s Mem. of Law in Opp’n to
Def.’s Mot. to Dismiss pp. 28-33. This precedent has no bearing on the case at hand because
Plaintiffs have claimed neither that the State has taken their property without just compensation
nor that the Court should interpret the Amended Statute to only apply prospectively. Since
Plaintiffs provide no legal support for their conclusion that the retroactive application of the
Amended Statute is, in and of itself, unconstitutional, I conclude that this claim lacks legal basis.
10
however discriminatory or wrongful.” Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974)
(citation and internal quotations omitted). In order to allege that his rights have been violated under
the Fourteenth Amendment, a plaintiff must claim that the actions causing his injuries are
somehow attributable to the state. Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978). Here, as to
Plaintiffs’ first category of injuries, clearly there is state action involved in the alleged violation of
Plaintiffs’ privacy in their personal information, because the Amended Statute explicitly orders the
online publication of that information by the State. But, as to the remaining categories of Plaintiffs’
injuries, the Amended Statute does not directly affect Plaintiffs’ ability to make important life
decisions or associate freely. See Paul P. v. Verniero (Paul P. I), 170 F.3d 396, 405 (3d Cir. 1999)
(“Megan's Law does not restrict plaintiffs' freedom of action with respect to their families and
therefore does not intrude upon the aspect of the right to privacy that protects an individual's
independence in making certain types of important decisions.”). The Amended Statute does not,
for example, limit or direct convicted sex offenders as to who they can marry or whether they may
have children. Rather, Plaintiffs are alleging that the Amended Statute indirectly causes these
injuries because, but for the publication of their information to the NJSOIR, they would not be the
targets of harassment and attacks from the community. Therefore, by so alleging, Plaintiffs are
ascribing to the State responsibility for attacks on sex offenders by private individuals.
There are a number of tests that may be applied to determine whether an action by a private
party can be considered state action for the purposes of a due process claim. See e.g., Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 291, 296 (2001) (employing both the
state agency test, which examines whether a private entity is controlled by an “agency of the state,”
and the entwinement test, which examines whether the government is overly entwined with a
private group’s management); Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (employing
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the nexus test, which examines whether there is a sufficiently close nexus between the state and a
regulated private entity’s actions, that such actions can be considered state actions); S.F. Arts &
Athletics v. U.S. Olympic Comm., 483 U.S. 522, 544 (1987) (employing the public function test,
which examines whether the private entity exercised powers which are traditionally exclusively
reserved to the state). Most of these tests are inapplicable to the instant case, because they involve
situations where the private actor is an entity regulated by the state, is an agent of the state, or is
performing a function traditionally reserved to the state. See e.g., Brentwood, 531 U.S. at 291, 296;
Wolotsky, 960 F.2d at 1335; S.F. Arts, 483 U.S. at 544. Here, because Plaintiffs’ alleged attackers
are private individuals, unrelated to the State, the most appropriate test to apply is the state action
test; under this test, a state cannot be held responsible for an action by a private individual, unless
the state “has exercised coercive power or has provided such significant encouragement, either
overt or covert, that the choice must in law be deemed to be that of the state.” Blum v. Yaretsky,
457 U.S. 991, 1004 (1982) (citing Flagg Bros., 436 U.S. at 166; Jackson, 419 U.S. at 353; Adickes
v. S.H. Kress & Co., 398 U.S. 144, 170 (1970); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173
(1965)).
Although Plaintiffs allege that New Jersey legislators and politicians have created a hostile
environment for sex offenders by exaggerating their risk of recidivism and the dangers they pose,
Compl. ¶¶ 202-4, Plaintiffs do not claim that these legislators have actively encouraged harassment
or attacks on sex offenders. The statements of New Jersey legislators cited by Plaintiffs merely
call for broader application of sex offender registries out of concern for public safety. Compl. ¶ 98.
They do not condone or commend violence against sex offenders. While such attacks are
disturbing, under the facts alleged by Plaintiffs, they are wholly the result of independent choices
made by non-state actors. Indeed, “[a]lthough the public availability of the information may have
12
a lasting and painful impact on the convicted sex offender, these consequences flow not from the
Act's registration and dissemination provisions, but from the fact of conviction . . . .” Smith v. Doe,
538 U.S. 84, 101 (2003). Failing to allege any state action which impinges on these rights is fatal
to Plaintiffs’ claims that these particular rights were violated under the Fourteenth Amendment.
See Paul P. I, 170 F.3d at 405 (concluding that indirect effect of Megan’s Law notification on sex
offenders’ families did not violate the “autonomous decision branch of the constitutional right of
privacy”). Therefore, Plaintiffs have no cause of action against Defendant relating to the alleged
interference with Plaintiffs’ right to independently make important life decisions, or their right to
associate freely.
On the other hand, Plaintiffs have plausibly alleged state action that implicates the privacy
of their personal information, because the Amended Statute explicitly orders the publication of
this information. Preliminarily, I note that Plaintiffs aver violations of their right to privacy under
both the U.S. Constitution, which I will discuss below, and the New Jersey Constitution.
Necessarily, however, Plaintiffs’ privacy claims under the New Jersey Constitution fail, because
in November 2000, the State of New Jersey passed an Amendment providing an explicit carve out
to allow the publication of sex offenders’ personal identifying information, “[n]otwithstanding any
other provision of this Constitution and irrespective of any right or interest in maintaining
confidentiality.” N.J. Const. art. IV, § 7, ¶ 12; see also A.A. v. State, 384 N.J. Super. 481, 491
(App. Div. 2006). As such, any claim of privacy violations flowing from the Amended Statute,
under the New Jersey Constitution, fails and is dismissed.
As to Plaintiffs’ privacy claims under the U.S. Constitution, even after the amendment of
the New Jersey Constitution, the Third Circuit found that New Jersey sex offenders have a
“nontrivial privacy interest” in the publication of their home addresses, originating from privacy
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rights granted by the U.S. Constitution. See A.A. ex rel. M.M. v. New Jersey. (A.A. v. N.J.), 341
F.3d 206, 212 (3d Cir. 2003). In determining whether information is entitled to constitutional
protection, the Third Circuit focused on whether the information is “within an individual’s
reasonable expectation of confidentiality.” Id. at 211. “The more intimate or personal the
information, the more justified is the expectation that it will not be subject to public scrutiny.”
Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 112-13 (3d Cir.
1987). The Third Circuit concluded in Paul P. I, and reaffirmed in Paul P. II and A.A. v. N.J., that
of all the information made available to the public under Megan’s Law, a sex offender’s home
address is the only information where there is a “general understanding” that it is entitled to some
privacy protection. Paul P. I, 170 F.3d at 404; see also A.A v. N.J., 341 F.3d at 211; Paul P. v.
Farmer (Paul P. II), 227 F.3d 98, 101 (3d Cir. 2000). Because the information that is available on
the NJSOIR has not been expanded in the intervening years since the A.A. v. N.J. decision, I need
not examine whether any new categories of information are entitled to privacy protection. Instead,
I rely on the Third Circuit’s finding that the only piece of information at issue here, that is entitled
some degree of privacy protection, is Plaintiffs’ home addresses.
Once a court has determined that a plaintiff’s information is entitled to constitutional
protections, the court applies a balancing test to weigh “the privacy interest at stake” against “the
State's interest in disclosure.” A.A v. N.J., 341 F.3d at 211. Indeed, “[e]ven information that is
entitled to privacy protection may nonetheless be subject to disclosure when the government's
interest in disclosure is compelling.” Paul P. I, 170 F.3d at 402. The Third Circuit has consistently
found that the State’s compelling interest in protecting potential victims of sexual assault from
recidivist offenders outweighs sex offenders’ privacy interest in their home addresses, and
therefore New Jersey’s Megan’s Law does not violate sex offenders’ rights to privacy. A.A v. N.J.,
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341 F.3d at 213 (upholding publication of sex offenders’ information to internet registry); Paul P.
II, 227 F.3d at 107 (upholding dissemination of sex offenders’ information to individuals in a
court-authorized notification zone); id. at 404 (upholding dissemination of sex offenders’
information to individuals likely to encounter them).The recent amendment of Megan’s Law does
not change the method by which sex offenders’ information is disseminated, or broaden the
categories of information that will be disseminated. See N.J.S.A. 2C:7-13(g). Thus, Plaintiffs are
not suffering any additional intrusions on their privacy beyond those already sanctioned by the
Third Circuit in A.A. v. N.J. 7 However, in an effort to challenge well-settled law, Plaintiffs argue
that scientific research published since the decision in A.A. v. N.J. should prompt this Court to reevaluate whether Plaintiffs’ privacy interests in their home addresses are still outweighed by the
State’s compelling interest in publishing that information to protect the public. 8
Plaintiffs raise three main arguments as to why the NJSOIR does not serve to achieve the
State’s compelling interest in protecting the public: 1) sex offender registries do not reduce
recidivism rates and may actually increase the rate of recidivism; 2) it is so uncommon for a
7
Plaintiffs argue that they have greater privacy interests in their personal information than
those previously acknowledged by the Third Circuit, due to the passage of a law by the New Jersey
legislature in 1997 to prohibit the disclosure of DMV records, except for specific purposes and to
specific entities. Compl. ¶¶ 209, 227; see also N.J.S.A. 39:2-3.3, 39:2-3.4. However, since this law
was passed in 1997, which was well before the Third Circuit’s decisions in Paul. P. I, Paul P. II,
and A.A. v. N.J., it was part of the landscape that the court considered in determining that Megan’s
Law did not violate sex offenders’ right to privacy. Moreover, the New Jersey Constitution
specifically provides a privacy right carve-out for the sex offender registry, N.J. Const. art. IV,
§ 7, ¶ 12, which trumps any heightened privacy interest that may have been granted to sex
offenders by N.J.S.A. sections 39:2-3.3 and 39:2-3.4.
8
The Court notes that many of the studies cited by Plaintiffs were purportedly published prior
to the A.A. v. N.J. decision. Thus, I question whether these studies actually provide any new
information that was not already available to the A.A. v. N.J. court when it applied its balancing
test.
15
recidivist sex offender to sexually assault a stranger in his own neighborhood, that warning
potential victims about stranger recidivists in their area is a fruitless exercise; and 3) certain
categories of sex offenders have such a low risk of re-offense that it is unnecessary to include them
on the NJSOIR. In support of these arguments, Plaintiffs cite to various scientific articles and
studies throughout their Complaint. Typically, the Court would review these studies as “documents
that are integral to or explicitly relied upon in the complaint.” W. Pa. Allegheny Health Sys., Inc.,
627 F.3d at 97 n. 6 (citation and internal quotations omitted); see also Pension Ben. Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[A] court may consider an
undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if
the plaintiff's claims are based on the document.”). However, Plaintiffs failed to attach these
studies to the Complaint or even provide their titles so that the Court itself might locate and review
them. 9 Without access to these studies, the Court is unable, for example, to determine whether
Plaintiffs have taken any of the studies’ findings out-of-context, whether the findings of the studies
are applicable to the instant case, and the soundness of the methodologies employed by the studies.
Thus, I find that Plaintiffs’ allegations of fact made in reliance upon such unidentified scientific
studies do nothing to support the plausibility of their claims. Without these scientific studies,
Plaintiffs have no other basis to support their arguments that the State no longer has a compelling
interest in publishing sex offenders’ information for the sake of protecting the public from
9
Plaintiffs identify these studies solely by author and date of publication. The Court has
attempted to locate a number of these articles using only this information, but without the title of
the article and the journal in which it was published, such attempts have proved unsuccessful.
Plaintiffs provide appendices with isolated excerpts purportedly taken from these studies, but
without the context of these excerpts, the Court is unable to take them at face value. Plaintiffs also
provide their own summaries of these studies, but once again, the Court would need to review the
studies to verify the accuracy of Plaintiffs’ summaries.
16
recidivists. Thus, the Third Circuit’s ruling that the NJSOIR does not violate sex offenders’ privacy
rights would necessarily control. See A.A v. N.J., 341 F.3d at 213. Nonetheless, I address Plaintiffs’
arguments below for the purposes of thoroughness. Even considering these “studies,” Plaintiffs
fail to state a claim.
First, Plaintiffs cite to multiple studies, which they claim demonstrate that public sex
offender registries in general do not reduce sex offender recidivism rates or the total number of
sexual assaults occurring in a given community. Compl. ¶ 155, Ex. H. They further contend that
the toxic social environment created by the NJSOIR actually increases their risk of recidivism,
completely contrary to the goal of the law. Compl. ¶ 178. Plaintiffs argue on this motion that based
on these studies, the NJSOIR does not help protect the public from recidivist sexual offenders, and
in fact, may endanger them further. However, these studies, even as described by Plaintiffs, do not
necessarily support this claim. First, the two sets of studies, as summarized by Plaintiffs, contradict
each other in that the former seems to indicate that recidivism has been completely unaffected,
while the latter indicates that recidivism rates should be increasing under Megan’s law. Second,
Plaintiffs have not offered statistics of a kind and degree sufficient to show causation. See Watson
v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988). For example, even accepting these statistics
as true, it may be the case that the NJSOIR has been helping to decrease the number of sexual
assaults by convicted sex offenders, while other unknown factors have been negating these
benefits. Similarly, even if publishing a convicted sex offender’s information to the NJSOIR
increases his likelihood of re-offending, this may be counterbalanced and even overcome by the
protective effects of notifying potential victims of his identity and whereabouts. Therefore,
Plaintiffs’ summaries of these studies do not support the conclusion that the State has any less
17
compelling an interest in publishing sex offenders’ personal information to the NJSOIR to protect
the public.
Second, Plaintiffs cite to studies which they claim show that only a small percentage of
sexual assaults are committed by strangers or recidivists, and those stranger recidivists that do
commit sex offenses, only do so far from their own neighborhoods. ¶¶ 144, 152, Ex. H. Plaintiffs
reason that these studies reveal the ineffectiveness of the NJSOIR in achieving its main purpose:
protecting potential victims from stranger recidivist sex offenders residing in their own
neighborhoods. However, Plaintiffs misconstrue the purpose of the Amended Statute. Indeed, the
NJSOIR seeks, more generally, to protect against any recidivist sex offenders that members of the
public may come in contact with, regardless of where they live. N.J.S.A. 2C:7-12. While this
certainly includes stranger recidivists, it also includes recidivist sex offenders who may be friends,
family, or acquaintances of potential victims. Further, this potential audience for the NJSOIR is
apparent from the Complaint itself, where Plaintiffs allege that some of their current acquaintances
and business partners are unaware of Plaintiffs’ convicted sex offender status. In sum, Plaintiffs’
references to studies do not demonstrate that the NJSOIR cannot reasonably achieve its stated
purpose. Instead, their reading of the studies simply indicates that the NJSOIR is more useful to
the public as a means of identifying who within their social circles is a convicted sex offender, so
that they might better protect themselves.
Third, Plaintiffs point to studies that supposedly show that any random male member of
the general public is more likely to commit a sex offense than sex offenders classified as low risk
who have been living offense-free in the community for an extended period of time. Compl.
¶¶ 126-39. Consequently, they argue that adding such individuals to the NJSOIR would be just as
useless as creating a public registry for all men. Plaintiffs cite to a study which purportedly found
18
that sex offenders who were initially considered low risk to reoffend at release had a 2.9% reoffense rate after successfully living in the community, offense-free, for eight years. Compl. ¶ 127.
They next list multiple studies that, even as summarized by Plaintiffs, do not appear to clearly
support their assertion that any random male member of the general public has a greater than 2.9%
chance of committing a sex offense at some point during his or her lifetime. Compl. ¶¶ 131-38.10
The only study that Plaintiffs cite that, based on their description, has some support for their claim
is the 2012 Seto survey, which allegedly found that 3 - 4% of college-aged men “admitted to sexual
contact with a prepubescent girl” after turning sixteen years old themselves. Compl. ¶ 133. But
even accepting these statistics -- taken from different studies, and thus, different study protocols
and margin of errors -- as true, they only suggest that the average male is slightly more likely to
commit a sex offense than a very narrow subsection of the convicted sex offender population.
Indeed, based upon their own descriptions, other studies that Plaintiffs reference put the recidivism
rate for convicted sex offenders in general as high as 13.7% over six to ten years from release.
Compl. ¶ 117. Ultimately, Plaintiffs conclude that posting the information of sex offenders with
exceedingly low risk of re-offense to the NJSOIR cannot help protect the public in any meaningful
way, and therefore impinges on their right to privacy.
10
The survey of eighteen to twenty-seven-year-olds performed by Bagley, Wood, & Young in
1994, which allegedly found that 1% of the study subjects had performed “pedophilic activities,”
Compl. ¶ 131, cannot be applied as Plaintiffs contend, to support the assertion that generally men
across their lifetime are more than 2.9% likely to commit a sex offense. Likewise, this proposition
is not supported by the 2008 Seto or 1995 Nagayama, Hall, Hirschman & Oliver studies, which,
according to Plaintiffs, included sexual arousal in their statistics, Compl. ¶¶ 132, 135, because
“sexually deviant arousal” in and of itself does not constitute a sex offense. Similarly, the 1989
Briere & Runtz survey, as described by Plaintiffs, did not look at whether the individuals studied
had actually committed sex offenses.
19
However, at issue is not whether the Amended Statute creates a “perfect system,” but rather
whether the State’s interest in publishing sex offenders’ personal information outweighs those
offenders’ privacy rights in that information. See Paul P. II, 227 F.3d at 102. The Amended Statute
already has in place a system to determine which sex offenders pose a great enough risk of reoffense to warrant publication to the NJSOIR via risk assessment hearings through the guidelines
set forth by N.J.S.A. 2C:7-8 and N.J.S.A. 2C:7-13. Therefore, in balancing the State’s compelling
interest against Plaintiffs’ privacy interest, the question is not whether the State has accurately
assessed any particular individual sex offender’s risk of re-offense, but rather whether the system
in place reasonably avoids impinging on that sex offender’s rights. Based on the extensive
framework in place under the Amended Statute to assess sex offenders’ recidivism risk, I conclude
that the system under the statute is reasonably calculated to publish the information of those sex
offenders who pose a heightened risk to the public, while excluding those sex offenders who do
not. Thus, even taking into account Plaintiffs’ “data,” the State still has a compelling interest in
publishing the personal information of those offenders who have a sufficient risk of re-offense.
In sum, Plaintiffs’ allegations do not demonstrate that the publication of their personal
information under the Amended Statute is not calculated to achieve the compelling goal of
protecting the public from recidivist sex offenders or unreasonably impinges on their privacy
interests. Therefore, because the State’s compelling interest in protecting the public substantially
outweighs Plaintiffs’ interests in the privacy of their home addresses, the Amended Statute does
not violate Plaintiffs’ right to protect their personal information from publication. Additionally, as
discussed above, Plaintiffs have not alleged facts under which any other constitutional rights have
been violated by the State. Consequently, Plaintiffs have not sufficiently stated a violation of their
20
substantive due process rights upon which relief can be granted. I dismiss Counts 1 and 2 of the
Complaint.
b. Procedural Due Process Claims
The Fourteenth Amendment Due Process Clause requires that “[b]efore a person is
deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, except
for extraordinary situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event.” Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 570 n. 7 (1972) (citation and internal quotations omitted). The Third Circuit has found that,
pursuant to the Due Process Clause, sex offenders must be notified and given the opportunity to
contest their Megan’s Law risk assessment and subsequent tier placement. E.B. v. Verniero, 119
F.3d 1077, 1111 (3d Cir. 1997). Moreover, at the risk assessment hearing, “the prosecutor has the
burden of persuasion and must prove her case by clear and convincing evidence.” Id. 11
Here, based on the legal precedent, Plaintiffs argue that because their sentencing hearings
only employed a preponderance of the evidence standard to find their conduct compulsive and
repetitive, their procedural due process rights will be violated if they are placed on the NJSOIR
without an additional hearing to establish compulsive and repetitive behavior by clear and
convincing evidence after they have completed their state-mandated treatment.
11
The Court notes that the State, in summarizing the current standard of review for Megan’s
Law risk assessment hearings, omitted the procedural requirements established in E.B. and instead
cited an earlier case, Doe v. Poritz, 142 N.J. 1 (1995). Def.’s Mem. in Supp. of Mot. to Dismiss
p 4. In Doe v. Poritz, the New Jersey Supreme Court placed the burden on the convicted sex
offender to show by a preponderance of the evidence that the State's proposed level and manner
of notification did not conform to Megan’s Law and the Attorney General’s Guidelines. Poritz,
142 N.J. at 32. This approach however was rejected by the Third Circuit’s decision in E.B., which
established the current standard applied by New Jersey courts today. In re M.F., 169 N.J. 45, 54
(2001) (citing E.B., 119 F.3d 1077).
21
In E.B, a convicted sex offender contested the constitutionality of the community
notification provision of New Jersey’s Megan’s Law. Id. at 1081. The E.B. court found that the
notification provision did not violate the Ex Post Facto and Double Jeopardy clauses of the U.S.
Constitution, but did find that it violated certain of plaintiff’s procedural due process rights. Id. at
1111. Specifically, the E.B. court determined that the New Jersey Constitution provided sex
offenders a right to privacy in their confidential personal information, which could not be
abrogated without “legitimate and substantial government interest” and sufficient procedural
safeguards. Id. at 1105-6. The E.B. court further reasoned that because “liberty interests that trigger
procedural due process may be created by state law or by the federal constitution itself,” the court
need not reach the issue of whether appellants had a privacy interest recognized by the federal
constitution. Id. at 1105 (citing Sandin v. Conner, 515 U.S. 472 (1995)). Subsequent to E.B., the
New Jersey Constitution was amended to extinguish any privacy rights sex offenders might have
had vis-à-vis the NJSOIR, N.J. Const. art. IV, § 7, ¶ 12, thereby abrogating the procedural due
process rights that the E.B. court had found under the New Jersey Constitution. Nonetheless, the
procedural safeguards imposed by E.B. are still applicable after the amendment to the New Jersey
Constitution, since the Third Circuit in A.A. v. N.J. found sex offenders’ privacy interests in their
personal information emanates from the federal constitution. See A.A v. N.J., 341 F.3d at 212. 12
When determining what procedural due process protections are necessary, a court
examines
12
The privacy interest in a sex offender’s home address found in A.A. v. N.J., 341 F.3d at 212,
is substantially similar to the privacy interest in “personal information” found in E.B., 119 F.3d at
1105. Thus, the burden of proof and the standard of review set forth in E.B. is equally applicable
to the privacy interests, i.e., home addresses, addressed by the Third Circuit in A.A.
22
[f]irst, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). “In any given proceeding, the minimum standard
of proof tolerated by the due process requirement reflects not only the weight of the public and
private interests affected, but also a societal judgment about how the risk of error should be
distributed between the litigants.” Santosky v. Kramer, 455 U.S. 745, 745-46 (1982). A court must
determine which burden of persuasion and which standard of proof “fairly allocates the risk of an
erroneous factfinding between the parties.” E.B., 119 F.3d at 1107 (citation and internal quotations
omitted).
In E.B., the Third Circuit observed that sex offenders had “a compelling interest in an
accurate and reasonable disposition of the issues before the court in a Megan’s Law hearing”
because “[n]otification puts the registrant's livelihood, domestic tranquility, and personal
relationships with all around him in grave jeopardy.” Id. On the other hand, the Third Circuit
recognized that the state had two compelling interests: 1) protecting potential victims of recidivist
sex offenders and 2) ensuring that the state’s classification and notification system is speedy, fair,
and accurate. Id. at 1107-8. Given these respective interests, the Third Circuit concluded that “the
burden of persuasion must be placed on the state if, compared to proceedings in which that burden
is on the registrant, the risk of error will be materially reduced without materially impairing the
state's ability to secure a prompt determination and without imposing substantial new
administrative burdens on the state.” Id. at 1108. The E.B. court reasoned that because a risk
assessment hearing requires the court to undergo complex fact finding involving subjective,
23
psychological evaluations, and is subject to a shorter time table, “the risk of error in such a hearing
is substantially greater than that in a typical civil damage suit.” Id. at 1109. Considering the high
risk of error in such a proceeding, requiring the prosecutor to affirmatively convince the court of
a plaintiff’s risk of re-offense would necessarily materially reduce the risk of error. Id. The E.B.
court anticipated that shifting the burden of proof to the state would not have a significant effect
on the proceedings, other than perhaps increasing the amount of live witness testimony utilized by
prosecutors. Id. The E.B. court did not believe that this would materially impair the prosecutors’
ability to meet their responsibilities in a timely fashion. Id. Consequently, the Third Circuit
concluded that due process demanded that prosecutors assume the burden of proof in Megan’s
Law risk assessment hearings. Id.
When assessing whether applying a preponderance of the evidence standard to a Megan’s
Law hearing fairly allocates the risk of erroneous fact finding between the state and sex offenders,
the Third Circuit examined what injuries the parties would suffer if a fact finding error were made.
Id. at 1110. The E.B. court reasoned that an erroneous underestimation of an individual’s
dangerousness would not necessarily result in harm to protected groups, because the state
employed numerous other safeguards to protect the public from recidivist sex offenders, including
Megan’s Law registration with law enforcement, which is mandatory for all convicted sex
offenders regardless of their tier designation. Id. On the other hand, the E.B. court reasoned that
an overestimation of an individual's dangerousness would lead to immediate and irreparable harm
to the offender as “the veil of relative anonymity behind which he might have existed
disappear[ed].” Id. Therefore, the Third Circuit concluded that because the possible injury to an
offender from an overestimation of his dangerousness is significantly greater than the danger posed
24
to the public by an underestimation, it necessarily follows that the Due Process Clause requires the
State prove its case by clear and convincing evidence in a Megan's Law proceeding. Id. at 1111.
Here, the private and public interests at issue are substantially similar to those examined
by the E.B. court. Because Plaintiffs allege that their federal constitutional privacy rights are
implicated by the publication of their information to the NJSOIR, under E.B., they have alleged an
interest in an accurate and reasonable determination of whether their conduct was compulsive and
repetitive. On the other hand, under the facts alleged, the State would also have a compelling
interest in an accurate and reasonable finding of compulsivity and repetitiveness. And, the State
would also be equally interested in an expedited process, so that it may provide community
notification expeditiously. Mirroring the E.B. court, this Court may find that heightened procedural
due process requirements are necessary “if, compared to proceedings in which that burden is on
the registrant, the risk of error will be materially reduced without materially impairing the state's
ability to secure a prompt determination and without imposing substantial new administrative
burdens on the state.” Id. at 1108.
Based on all the allegations, it is certainly plausible that as with a Megan’s Law risk
assessment, determining compulsive and repetitive conduct may require a court to make complex
determinations of fact, which would be difficult to make accurately on a short timetable. See State
v. Howard, 110 N.J. 113, 130 (1988) (finding of compulsive and repetitive “necessitates the review
of psychological and psychiatric reports, which often involve the interpretation of facts and which
are subject to the subtleties and nuances of psychiatric diagnosis” (citation and internal quotations
omitted)). Indeed, contrary to the State’s argument, where such a finding requires complex and
subjective determinations of fact, the allocation of the burden of persuasion to the prosecutor will
substantially reduce the risk of an erroneous outcome. See E.B., 119 F.3d at 1109. Moreover,
25
absent a fuller record, on this motion to dismiss, it is at least plausible that shifting this burden to
the State would likely not materially impair the State's ability to secure a prompt determination or
impose substantial new administrative burdens, because the State already has a comprehensive
system to make risk assessments under Megan’s Law, and compulsive and repetitive conduct is
already one of the factors considered by a court when determining risk of re-offense.
N.J.S.A. 2C:7-8(b)(3)(a).
The Supreme Court has mandated a clear and convincing standard of proof “when the
individual interests at stake in a state proceeding are both particularly important and more
substantial than mere loss of money” and where, “notwithstanding the state’s civil labels and good
intentions,” an individual is threatened with “a significant deprivation of liberty or stigma.” E.B.,
119 F.3d at 1111 (quoting Santosky, 455 U.S. at 756) (internal quotations omitted). Under the facts
alleged by Plaintiffs, an overestimation of an individual's compulsiveness and repetitiveness will
lead to immediate and irreparable harm to the offender, while an erroneous underestimation of an
individual's compulsiveness and repetitiveness will not necessarily result in harm to protected
groups. See id. at 1110. Indeed, as discussed by the E.B. court, there are a number of systems in
place to protect the public, including the requirement that convicted sex offenders of all tiers must
register regularly with local law enforcement, N.J.S.A. 2C:7-2, and the provision for risk
assessment hearings. Id. Because the alleged possible injury to convicted sex offenders is
significantly greater than possible harm to the State, Plaintiffs should not be asked to share equally
with society the risk of error under a preponderance of the evidence standard. See id. at 1111. It
necessarily follows that, under the facts alleged, the Due Process Clause requires that the State
prove Plaintiffs’ compulsivity and repetitiveness by clear and convincing evidence. See id.
26
Plaintiffs, however, allege that the State of New Jersey only applies a preponderance of the
evidence standard when making findings of compulsivity and repetitiveness at sentencing.
N.J.S.A. 2C:47-3; Howard, 110 N.J. at 131. Unlike the instant case, a preponderance of the
evidence standard is appropriate at a sentencing hearing because the criminal defendant has already
been adjudged guilty beyond a reasonable doubt and “the criminal defendant has been
constitutionally deprived of his liberty to the extent that the State may confine him.” McMillan v.
Pennsylvania, 477 U.S. 79, 92 n. 8 (1986) (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976)).
Here, however, Plaintiffs have already served their sentences, been treated, and are no longer
confined. Accordingly, determining that an individual satisfies the criteria under Megan’s Law to
be published to the NJSOIR “is a civil proceeding that stands apart from the criminal proceeding
in which one was convicted and sentenced.” E.B., 119 F.3d at 1111.
In sum, Plaintiffs allege that the State seeks to add them to the NJSOIR based on findings
of compulsive and repetitive conduct made at sentencing under a preponderance of the evidence
standard, as opposed to using a clear and convincing standard for purposes of NJSOIR publication.
I find that Plaintiffs have sufficiently alleged that such an application of the law may deprive them
of certain procedural due process protections under E.B. Defendant’s motion to dismiss Count 3
of Plaintiffs’ Complaint is denied. 13
13
Plaintiffs also argue that substituting a decades-old decision (finding compulsive and
repetitive at sentencing) for a court’s more recent decision (finding low risk at Megan’s Law
hearing) violates procedural due process. However, I need not address that additional basis for
Plaintiffs’ procedural due process claim, since I have already determined that a claim is stated.
27
b. Equal Protection Claims
Plaintiffs claim that the Amended Statute is unequally applied to three different classes of
individuals, in violation of the Equal Protection Clause of the Fourteenth Amendment. In that
connection, Plaintiffs argue that the statute unconstitutionally distinguishes between 1) sex
offenders and other classes of offenders; 2) sex offenders found to be compulsive and repetitive
and sex offenders who were not; and 3) sex offenders convicted in-state and sex offenders
convicted out-of-state, who have subsequently moved to New Jersey.
The Fourteenth Amendment's Equal Protection Clause provides that no state shall “deny
to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV,
§ 1. To prevail on an equal protection claim, a plaintiff must present evidence that he has been
treated differently from persons who are similarly situated. See City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). Here, the Amended Statute on its face distinguishes between
sex offenders and other offenders, because only sex offenders are subject to the law. Likewise, the
statute clearly distinguishes between sex offenders found to be compulsive and repetitive and other
sex offenders, because only the Tier 1 offenders who were also found compulsive and repetitive
are subject to NJSOIR notification. These distinctions must be analyzed under equal protection
principals to determine whether they violate Plaintiffs’ constitutional rights.
On the other hand, however, the Amended Statute does not, on its face, discriminate
between sex offenders who were convicted in-state and those convicted out-of-state and have since
moved to New Jersey. The Amended Statute does not proscribe different treatment for sex
offenders on the basis of where they were convicted. When discrimination is not clear on the face
of the statute, a plaintiff must establish, through other collateral or circumstantial evidence, that
the state has an intent to discriminate. See Miller v. Johnson, 515 U.S. 900, 916-17 (1995).
28
Discriminatory intent “implies that the decisionmaker . . . selected or reaffirmed a particular course
of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.” Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
On this issue, Plaintiffs argue that because other states do not assess compulsivity and
repetitiveness at sentencing, out-of-state sex offenders are functionally excluded from the new
NJSOIR notification requirements for offenders found to be compulsive and repetitive at
sentencing. According to Plaintiffs, the Amended Statute has a disproportionate impact on in-state
sex offenders, because they are now more likely to be listed on the NJSOIR than out-of-state
offenders. However, standing alone, disproportionate impact is not sufficient to state a prima facie
case of intentional discrimination under equal protection. Washington v. Davis, 426 U.S. 229, 242
(1976). Indeed, at no point in the Complaint did Plaintiffs allege that the state legislature passed
the Amended Statute because they wanted to discriminate against in-state sex offenders. Under
the facts alleged by Plaintiffs, there is nothing to indicate that the Amended Statute was not passed
merely in spite of the disproportionate impact on in-state sex offenders. Without an allegation of
discriminatory intent, Plaintiffs cannot claim a violation of in-state sex offenders’ equal protection
rights. 14
In the next step of the equal protection analysis, the court must determine which standard
of review applies to its assessment of the challenged law. Laws that involve a suspect or quasisuspect classification, such as race, religion, alienage, or gender, are subject to a heightened
14
However, the Court notes that to the extent that Plaintiffs succeed on their claim that
procedural due process requires that the State implement additional hearings to determine by a
clear and convincing standard that an individual offender’s conduct is compulsive and repetitive,
such hearings would necessarily have to be provided to all offenders subject to the Amended
Statute, regardless of whether they were convicted in-state or out-of-state.
29
standard of review. City of Cleburne, 473 U.S. at 440-41. “Similar oversight by the courts is due
when state laws impinge on personal rights protected by the Constitution.” Id. at 440. On the other
hand, if the law does not involve a suspect or quasi-suspect classification or fundamental
constitutional right, then it “is presumed to be valid and will be sustained if the classification drawn
by the statute is rationally related to a legitimate state interest.” Id.
The Third Circuit has specifically recognized that the category of repetitive and compulsive
sex offenders is not a suspect or quasi-suspect class. Artway v. Attorney Gen. of State of N.J., 81
F.3d 1235, 1267 (3d Cir. 1996). Additionally, other circuits have found sex offenders are not a
suspect class. Doe v. Moore, 410 F.3d 1337, 1342-48 (11th Cir. 2005) (finding under the “rational
basis” test no equal protection violation with respect to Florida's sex offender registrationnotification law); United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001) (finding rule
permitting admission of evidence of similar crimes in child molestation cases did not violate equal
protection); Cutshall v. Sundquist, 193 F.3d 466, 482-83 (6th Cir. 1999) (Tennessee Registration
and Monitoring Act “subject to scrutiny under rational basis test” and does not violate equal
protection). Here, it is clear that sex offenders, compulsive and repetitive or otherwise are neither
suspect nor quasi-suspect classes under the Equal Protection Clause.
Next, I turn to whether the Amended Statute impinges on a fundamental constitutional right
under the meaning of the Equal Protection Clause. As discussed above, sex offenders have a
constitutionally protected interest in the privacy of their home addresses. A.A v. N.J., 341 F.3d at
212. Of the two general categories of constitutionally protected privacy rights, this falls under the
purview of privacy of information, rather than privacy of important life decisions. See Whalen,
429 U.S. at 599-600. The Supreme Court has explicitly treated the second category of privacy
rights -- privacy in decisions -- as a fundamental right under the meaning of the Equal Protection
30
Clause. See, e.g., Vill. of Belle Terre v. Boraas, 416 U.S. 1, 7 (1974); Eisenstadt v. Baird, 405 U.S.
438, 447 (1972); Stanley v. Illinois, 405 U.S. 645, 658 (1972). However, the first category of
privacy rights -- information privacy -- has not been explicitly addressed by the Supreme Court or
the Third Circuit in equal protection cases. The Third Circuit, however, in A.A. v. N.J. and Paul II,
clearly did not consider sex offenders’ “nontrivial” informational privacy rights to be fundamental
rights in the context of substantive due process and procedural due process. Indeed, rather than
apply the Supreme Court’s test to determine whether a fundamental right had been violated under
the Due Process Clause, which examines if the statute is narrowly tailored to achieve a compelling
governmental interest, Fed. Election Comm'n v. Wis. Right To Life, Inc., 551 U.S. 449, 464 (2007),
the Third Circuit instead applied a balancing test, which examined whether the governmental
interest in publishing the information at issue outweighed plaintiff’s interest in keeping such
information private. A.A v. N.J., 341 F.3d at 211; Paul P. II, 227 F.3d at 102. In so doing, the Third
Circuit did not consider sex offenders’ privacy interests in their home addresses to be a
fundamental constitutional right, and therefore that right was not deserving of strict scrutiny
review. See A.A v. N.J., 341 F.3d at 211; Paul P. II, 227 F.3d at 102. While the Third Circuit’s
decision was made in the context of substantive and procedural due process, the court’s reasoning
applies with equal force in analyzing the same privacy interests under equal protection. Thus, I
find that Plaintiffs’ privacy interests in their home addresses are not fundamental rights under an
equal protection analysis. In that regard, this Court need only examine whether the classifications
made by the Amended Statute are “rationally related to a legitimate state interest.” City of
Cleburne, 473 U.S. at 440; see also Shoemaker v. Handel, 619 F. Supp. 1089, 1105 (D.N.J. 1985)
aff’d, 795 F.2d 1136 (3d Cir. 1986) (finding plaintiffs had sufficient privacy interests in medical
information under the Due Process Clause to require the administration of medical tests in privacy,
31
but applying rational basis review to plaintiffs’ equal protection claims, because no fundamental
rights were at issue). 15
A statute will withstand rational basis review, “if the state identifies a legitimate state
interest that the legislature rationally could conclude was served by the statute.” Sammon v. N.J.
Bd. of Medical Exam’rs, 66 F.3d 639, 644 (3d Cir. 1995). However, “[t]he law need not be in every
respect consistent with its aims to be constitutional. It is enough that there is an evil at hand for
correction, and that it might be thought that the particular legislative measure was a rational way
to correct it.” Rogin v. Bensalem Township, 616 F.2d 680, 689 (3d Cir. 1980) (quoting Williamson
v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88 (1955)); see also Midnight Sessions, Ltd. v.
City of Philadelphia, 945 F.2d 667, 682 (3d Cir. 1991).
The Third Circuit has repeatedly cautioned that a court engaging in rational basis review
is not entitled to
second guess the legislature on the factual assumptions or policy considerations
underlying the statute. If the legislature has assumed that people will react to the
statute in a given way or that it will serve the desired goal, the court is not authorized
to determine whether people have reacted in the way predicted or whether the
desired goal has been served.
Sammon, 66 F.3d at 645. The sole question is “whether the legislature rationally might have
believed the predicted reaction would occur or that the desired end would be served.” Id. When
legislation is being tested under rational basis review, “those challenging the legislative judgment
must convince the court that the legislative facts on which the classification [of the statute] is
apparently based could not reasonably be conceived as true by the governmental decisionmaker.”
15
This case was affirmed in Shoemaker v. Handel, 795 F.2d 1136 (3d Cir. 1986), but privacy
rights were not discussed in the Third Circuit’s opinion, because changed regulations in the
intervening year rendered the plaintiffs’ original privacy concerns moot.
32
Id. (quoting Vance v. Bradley, 440 U.S. 93, 111 (1979)); see also Pace Resources, Inc. v.
Shrewsbury Township, 808 F.2d 1023, 1034-35 (3d Cir. 1987).
Indeed, “those attacking the rationality of the legislative classification have the burden ‘to
negat[e] every conceivable basis which might support it.’” FCC v. Beach Commc'ns, Inc., 508
U.S. 307, 315 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364
(1973)); see, e.g., Heller v. Doe, 509 U.S. 312, 319-20 (1993) (finding that laws scrutinized under
rational basis review are “accorded a strong presumption of validity”); Hodel v. Indiana, 452 U.S.
314, 331-32 (1981). Ordinarily, that burden is insurmountable. “[C]ourts are compelled under
rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit
between means and ends. A classification does not fail rational basis review because it is not made
with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at
321 (citation and internal quotations omitted).
The Supreme Court has held that “legislative choice[s] [are] not subject to courtroom
factfinding and may be based on rational speculation unsupported by evidence or empirical data.”
Beach Commc'ns, 508 U.S. at 315. “In areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes fundamental constitutional
rights must be upheld against equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.” Id at 313. The rationale for
such a deferential standard is that the legislative process will, from time to time, yield imperfect
results, but “[o]nly by faithful adherence to this guiding principle of judicial review of legislation
is it possible to preserve to the legislative branch its rightful independence and its ability to
function.” Lehnhausen, 410 U.S. at 365 (citation and internal quotations omitted). “[T]he Equal
Protection Clause allows the States wide latitude, and the Constitution presumes that even
33
improvident decisions will eventually be rectified by the democratic processes.” City of Cleburne,
473 U.S. at 440 (citation omitted). Nevertheless, the rational basis test is not a “toothless” one,
Mathews v. Lucas, 427 U.S. 495, 510 (1976), and it is “the function of courts . . . to determine in
each case whether circumstances vindicate the challenged regulation as a reasonable exertion of
governmental authority or condemn it as arbitrary or discriminatory.” Nebbia v. New York, 291
U.S. 502, 536 (1934).
Here, Plaintiffs do not contest that protecting the public from sex offenses is a compelling
governmental interest, instead they challenge whether the classifications at issue are rationally
related to that interest. In support of these arguments, Plaintiffs, once again, cite to numerous
scientific studies that they do not identify by name or attach to their Complaint. As discussed
above, because the Court has had no opportunity to review these studies, see W. Pa. Allegheny
Health Sys., Inc., 627 F.3d at 97 n. 6, the Court finds that Plaintiffs’ allegations of fact made in
reliance on these studies cannot support the plausibility of their claims. Without these scientific
studies, Plaintiffs have no other support for their arguments that the State has no rational basis
upon which to make the classifications at issue. Consequently, the Amended Statute is presumed
to be valid under the Equal Protection Clause. As such, I decline to address Plaintiffs’ arguments
that the State’s distinctions -- between sex offenders and other classes of offenders, as well as those
sex offenders who were found compulsive and repetitive and those who were not -- are not
reasonably related to protecting the public based on the alleged studies and their statistical results.
However, even if the Court were to consider those arguments, Plaintiffs’ allegations in this regard
suffer the same infirmities as those found in the substantive due process analysis, supra.
Accordingly, Plaintiffs’ claims that the Amended Statute violates the Equal Protection Clause do
not survive review under Rule 12(b)(6). Because the Amended Statute on its face does not
34
discriminate against in-state sex offenders, and because Plaintiffs do not adequately allege that the
State intentionally discriminated against in-state sex offenders, they do not sufficiently state a
claim of equal protection violation vis-à-vis this class. Additionally, Plaintiffs have failed to allege
that the Amended Statute is not rationally related to the legitimate and compelling state interest of
protecting the public. Thus, I dismiss Counts 4 and 5 of Plaintiffs’ Complaint.
c. Claims Brought on Behalf of Minor Plaintiffs
Plaintiffs bring two separate claims on behalf of Minor Plaintiffs: denial of substantive due
process and denial of equal protection. Generally, Plaintiffs allege that if their information is
published to the NJSOIR, private parties will attack and harass Minor Plaintiffs, potentially
causing significant physical and psychological trauma. Plaintiffs argue that because such attacks
impinge Minor Plaintiffs’ rights to privacy and to associate, and because such attacks result from
Plaintiffs’ listing on the NJSOIR, pursuant to the Amended Statute, the law violates the
Substantive Due Process and Equal Protection Clauses of the Fourteenth Amendment.
However, as discussed supra, the State cannot be held responsible for the independent
action of private individuals. See Blum, 457 U.S. at 1004. Because Plaintiffs do not sufficiently
allege that the State actively coerced or encouraged private party attacks and harassment of sex
offenders, as a matter of law, the State is not responsible for the actions of these private parties.
Likewise, nowhere in the Complaint do Plaintiffs allege that the State has actively coerced or
encouraged attacks and harassment of the children of sex offenders. Therefore, such alleged attacks
and harassment, while abhorrent, cannot be considered state action for the sake of Minor Plaintiffs’
claims. Moreover, there are no allegations that the Amended Statute directly affects Minor
Plaintiffs’ constitutional rights. Indeed, on a claim of violation of substantive due process, if the
law at issue does not implicate a plaintiff’s fundamental constitutional rights, the court merely
35
analyzes whether it is rationally related to a legitimate governmental interest. Washington v.
Glucksberg, 521 U.S. 702, 728 (1997). Here, at minimum, the State has a legitimate interest in
protecting the public from recidivist sex offenders, and publishing the information of sex offenders
to the NJSOIR is rationally related to achieving that governmental interest. Therefore, the
Amended Statute does not violate Minor Plaintiffs’ rights under the Substantive Due Process
Clause.
Plaintiffs also argue that, in violation of the Equal Protection Clause, the Amended Statute
unconstitutionally discriminates against children of sex offenders, because it prioritizes protecting
potential child victims of sexual assault over protecting Minor Plaintiffs from attacks and
harassment by private parties. Plaintiffs’ argument, however, relies on a false dichotomy. The
Amended Statute does not discriminate among various classes of children. Indeed, at no point does
the Amended Statute impose any burdens on the children of sex offenders, or classify them in any
way. Rather, the Amended Statute protects all children equally from potential sexual assault by
providing their guardians with information about convicted sex offenders in New Jersey.
N.J.S.A. 2C:7-12. The minor children of sex offenders are also protected by the Amended Statute,
as it can provide information to their guardians about other convicted sex offenders with which
they might have contact. Even if I construe Plaintiffs’ claim to be one of disproportionate impact
against the children of sex offenders, Plaintiffs have not alleged that the State intended to
discriminate against this class. See 426 U.S. at 242. Therefore, Plaintiffs have failed to state a claim
under the Equal Protection Clause on behalf of Minor Plaintiffs for which relief may be granted.
Thus, I dismiss Count 6, Minor Plaintiffs’ equal protection claims, and all substantive due process
claims made on behalf of these parties in Counts 1 and 2. Additionally, because I have dismissed
36
all of Minor Plaintiffs’ claims, I will also deny Plaintiffs’ application to appoint pro bono counsel
on behalf of Minor Plaintiffs as moot.
d. Appointment of Pro Bono Counsel for Plaintiffs
Plaintiffs have applied, pursuant to 28 U.S.C. § 1915(e)(1), for the appointment of pro
bono counsel on their behalf. At the outset, I note that a civil litigant does not have a constitutional
or statutory right to appointed counsel. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)
(citing Parham v. Johnson, 126 F.3d 454, 456–57 (3d Cir. 1997)). However, the Court has broad
discretion, under 28 U.S.C. § 1915, to appoint pro bono counsel to represent indigent litigants,
Parham, 126 F.3d at 456–57, and may grant a properly filed application for appointment of pro
bono counsel if the plaintiff's claims have some “arguable merit in fact and law.” Tabron v. Grace,
6 F.3d 147, 155 (3d Cir. 1993). In addition, in order to appoint pro bono counsel, the Court must
consider the following non-exhaustive list of “Tabron” factors: 1) the plaintiff's ability to present
his or her own case; 2) the difficulty of the particular legal issues; 3) the degree to which factual
investigation will be necessary and the ability of the plaintiff to pursue investigation; 4) the
plaintiff's capacity to retain counsel on his or her own behalf; 5) the extent to which a case is likely
to turn on credibility determinations, and; 6) whether the case will require testimony from expert
witnesses. Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57); see also Parham, 126
F.3d at 461 (“The Tabron factors will ensure that courts do not appoint counsel to frivolous
cases.”). “[W]here a plaintiff's case appears to have merit and most of the aforementioned factors
have been met, courts should make every attempt to obtain counsel.” Parham, 126 F.3d at 461.
However, pro bono attorney time is a precious commodity, and thus courts should exercise care in
appointing counsel. Montgomery, 294 F.3d at 499.
37
First, the Court must determine whether Plaintiffs’ claims have some merit in fact and law.
Tabron, 6 F.3d at 155. The Court’s discussion of Plaintiffs’ claims in the context of this substantive
motion to dismiss has established that, assuming Plaintiffs’ allegations are true, some of their
claims have merit in fact and law. Importantly, Plaintiffs seek to bring these claims on behalf of
class members similarly situated. Therefore, when determining whether counsel should be
appointed, the Court must bear in mind this fact.
As to the first Tabron factor, a plaintiff's ability to present his own case is the most
significant factor. Montgomery, 294 F.3d at 501. To determine whether a plaintiff has this ability,
a court examines his education, literacy, prior work experience, and prior litigation experience, as
well as his ability to understand English. Id. Additionally, a court will examine whether plaintiff
has access to “necessary resources like a typewriter, photocopier, telephone, and computer.”
Parham, 126 F.3d at 459. Here, Plaintiffs appear to be fluent in English, but the full extent of
Plaintiffs’ education, prior work experience, and prior litigation experience is unknown. Plaintiff
Z.R. has alleged that he is employed as an IT specialist and part-time paralegal, a position which
does not require any minimum level of education or training in New Jersey. Compl. ¶ 30; see N.J.
Rules Prof’l Conduct R. 5.3. Plaintiff L.A. has stated that he is “pursuing his education so as to
enable him to start his own business.” Compl. ¶ 17. In the Court’s view, Plaintiffs have adequately
represented themselves by properly filing their Complaint, as well as filing their briefs in
opposition of Defendant’s motion to dismiss. However, the Court must not only consider whether
Plaintiffs can adequately represent themselves; the Court must also take into account that Plaintiffs
seek to bring their claims on behalf of a putative class. Importantly, “[p]ro se plaintiffs are not
favored as representative parties in a class action, as they generally cannot represent and protect
the interests of the class fairly and adequately.” Cahn v. United States, 269 F. Supp. 2d 537, 547
38
(D.N.J. 2003); see also Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J. 1992), aff'd, 995 F.2d
216 (3d Cir. 1993). Therefore, because Plaintiffs are pro se litigants who do not appear to have
formal training in the law, they will not be able to represent the interests of Class A and maintain
this suit as a class action. See Cahn, 269 F. Supp. 2d at 547; Krebs v. Rutgers, 797 F. Supp. 1246,
1261 (D.N.J. 1992) (denying class certification to pro se plaintiffs without sufficient legal
education). Thus, the first Tabron factor weighs in favor of appointing pro bono counsel.
Second, where legal issues involved in a case are complex, “it will often best serve the ends
of justice to have both sides of a difficult legal issue presented by those trained in legal analysis.”
Tabron, 6 F.3d at 156 (citation omitted). There is no doubt that this case involves complex
questions of constitutional law that would be very difficult for any pro se plaintiff without formal
legal training to competently litigate. Thus, it would be in the interests of justice to appoint a pro
bono counsel.
Third, in examining the degree to which factual investigation will be required and the
ability of the plaintiff to pursue such investigation, the court analyzes whether his claims are likely
to “require extensive discovery and compliance with complex discovery rules.” Id. Here,
Plaintiffs’ surviving procedural due process claims do not appear to require extensive discovery
or involve complex discovery rules, as they seem to turn primarily on what procedures the State
has instituted to determine whether an individual sex offender’s conduct is compulsive and
repetitive. And, those questions are primarily legal in nature. However, it is not known at this time
whether extensive factual discovery would be necessary. Thus, this Tabron factor is neutral.
Fourth, if counsel is easily attainable and affordable by the litigant, but the plaintiff simply
has made no effort to retain an attorney, then the court should not appoint pro bono counsel. Id. at
157 n. 5. Moreover, 28 U.S.C. § 1915(e)(1) only allows the court to appoint pro bono counsel to
39
represent litigants who are “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Here, however,
Plaintiffs have represented that they have asked several attorneys to represent them in this matter
pro bono, but these attorneys declined due to the complex nature of the case. Pls.’ Appl. for Pro
Bono Counsel. Additionally, Plaintiffs have submitted financial affidavits indicating that they
cannot afford to retain counsel. Judge Pisano previously analyzed these financial affidavits and
denied Plaintiffs’ applications to proceed in forma pauperis, based on the determination that
Plaintiffs were capable of paying their filing fees. Nonetheless, on the basis of the same affidavits,
I find that Plaintiffs’ incomes are not sufficient to retain counsel, as the cost of retaining counsel
will be significantly greater than the filing fees. Indeed, the Court has the discretion to determine
at any time whether Plaintiffs qualify as indigent. See, e.g. Bondarenko v. Hackensack Univ. Med.
Ctr., No. CIV.A.07-3753(PGS), 2009 WL 2905373, at *4 (D.N.J. Sept. 4, 2009) (finding that
plaintiff could not afford to retain counsel, despite the fact that plaintiff had not applied to proceed
in forma pauperis); Allebach v. Cathel, No. CIV.A. 06-5005 (JAG), 2007 WL 446640 at *1-2
(D.N.J. Feb. 7, 2007) (applying the Tabron factors to an application for pro bono counsel, despite
the fact that plaintiff had not applied to proceed in forma pauperis). Moreover, Plaintiffs have not
been able to retain counsel, despite undertaking efforts to do so. Therefore, the fourth Tabron
factor weighs in favor of appointing pro bono counsel.
As to the fifth and sixth factors, the court examines whether the case is solely a “swearing
contest” and whether the case requires expert testimony. Parham, 126 F.3d at 460. Here, the case
does not seem likely to turn on credibility determinations. At this juncture, however, it is not
known whether experts may be necessary for Plaintiffs’ procedural due process claims. Thus, the
fifth factor does not weigh in favor of appointing pro bono counsel, and the sixth factor is neutral.
40
In sum, at least three of the six Tabron factors, including the most significant factor, weigh
in favor of appointment of counsel. Because Plaintiffs bring this suit as a class action, and do not
appear to have any formal legal training, they will not be able to adequately represent both
themselves and Class A. Moreover, the legal questions at issue in this case are complex, such that
the interests of justice would be best served by appointing counsel. Additionally, Plaintiffs have
made a good faith effort to retain counsel, but have been unable to do so. And finally, the Court
finds that Plaintiffs are unable to afford the cost of retaining counsel. Therefore, the Tabron factors
weigh in favor of appointing pro bono counsel, and the Court will appoint an appropriate pro bono
counsel to represent Plaintiffs in this matter.
41
IV.
CONCLUSION
Defendant’s motion to dismiss is granted in part and denied in part. The Court dismisses
Counts 1 and 2, Plaintiffs’ and Minor Plaintiffs’ substantive due process claims, and Counts 4, 5,
and 6, Plaintiffs’ and Minor Plaintiffs’ equal protection claims. However, Count 3, Plaintiffs’
procedural due process claim, survives. Additionally, Plaintiffs application for pro bono counsel
to represent Plaintiffs is granted, but Plaintiffs application for pro bono counsel to represent Minor
Plaintiffs is denied as moot
Once pro bono counsel is selected, counsel shall have the opportunity to review this Court’s
Opinion and assess whether additional claims should be asserted and whether to re-plead any
claims. If so, counsel shall be given leave to amend the Complaint to include those causes of action.
Dated: October 28, 2015
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Judge
42
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