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G.H. v. Township of Galloway

199 N.J. 135, 971 A.2d 401 (2009)

MEGAN’S LAW; MUNICIPALITIES — New Jersey’s Megan Law precludes municipalities from establishing residential restrictions for convicted sex offenders living in their communities.

Two municipalities enacted ordinances prohibiting persons over the age of eighteen who has been convicted of a sexual office against a minor (as listed in N.J.S.A. 2C:7-2), and who are required to register with the authorities pursuant to Megan’s Law, from living within 2,500 feet of any school, park playground or daycare center in the municipality. The ordinance contained a grandfather clause exempting anyone who had established a residence prior to the effective date of the law. In one municipality, a 20 year old freshman at a college located within the municipality moved into a dormitory on campus after the ordinance’s introduction date. He had been adjudicated delinquent for an offense committed when he was 15 years old. The victim was a 13 year old girl. He had no other criminal record. Under Megan’s Law, he was designated as a low risk sex offender, but nevertheless he received a notice advising him that he was: (a) required to move within sixty days; and (b) prohibited from living within 2,500 feet of the campus. The student sued the municipality.

In the other municipality, having virtually the same ordinance (but with penalty provisions), two convicted sex offenders, over the age of eighteen, moved into a motel within 2,500 feet of a high school. They moved there after the date of the ordinance. Although they notified the municipality that they were moving into the motel, they were told that they had to move within sixty days. When they did not, they were issued citations for violating the ordinance. The municipal court denied their motion to dismiss on the grounds that the ordinance was invalid and found them guilty of violating the ordinance.

The Law Division declared both ordinances invalid. It held that the ordinances were preempted by state law and violated the due process, ex post facto, and double jeopardy clauses of the New Jersey Constitution. The municipalities appealed.

In a consolidated action, the Appellate Division held that Megan’s Law preempted and required the invalidation of the two ordinances. It rejected the municipalities’ contention that the ordinances complemented Megan’s Law by providing additional measures for the safety of their inhabitants. The Court held that the ordinances conflicted with the expressed and implied intent of the Legislature to exclusively regulate this field. It ruled that one of the purposes of Megan’s Law was to eliminate the inconsistencies, ambiguities, outmoded, conflicting, overlapping, and redundant provisions of various municipal ordinances and was intended to codify the law in a logical, clear, and concise manner. It held that the comprehensive system represented by Megan’s Law, including the Attorney General’s Guidelines and Department of Correction’s regulations, evinced a clear desire by the State to preempt local regulation. According to the Court, uniform treatment of sex offenders was aimed at eliminating “mischievous” local treatment of such issues by municipalities. It saw nothing unique from one locale to another regarding the need to protect children from sexual predators.

The Appellate Division also noted that the ordinance for one of the municipalities prohibited sex offenders from residing in virtually the entire municipality, while the other ordinance banned sex offenders from living in about two-thirds of the municipality. It found that in many cases, the most appropriate housing was located in areas prohibited by the residency restriction ordinances. Thus, it ruled that if large segments of the State could entirely close their doors to such individuals, sex offenders would be confined to a narrow corridor and perhaps expose those within that remaining corridor to a greater risk of harm. It also ruled that each ordinance’s use of Megan’s Law information to deny sex offender housing in specific locations violated a specific provision of Megan’s Law [which prohibited the use of such information to deny housing to sex offenders]. The Court also pointed out several other provisions of the ordinances that directly conflicted with Megan’s Law. Moreover, it mentioned that merely calling a municipal action “zoning” cannot grant a municipality the power to act in a way otherwise prohibited by conflicting state legislation. In any event, in this instance, the Court noted that the residency restriction ordinances were plainly not zoning ordinances, and concluded that a review of all of the above-mentioned factors favored preemption.

The Supreme Court affirmed, holding that the “stark” language of Megan’s Law precluded the municipality from establishing such residency restrictions for convicted sex offenders living in their communities. The Court refused to provide guidance about the limits to Megan’s Law’s preemption because it would not answer abstract questions about un-enacted ordinances or give advisory opinions.

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