In the Matter of Registrant R.S.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office

of the Clerk for the convenience of the reader. It has been neither reviewed nor

approved by the Court and may not summarize all portions of the opinion.

In the Matter of Registrant R.S. (A-23-23) (088761)

Argued May 1, 2024 -- Decided July 2, 2024

FASCIALE, J., writing for a unanimous Court.

In this appeal, the Court addresses two legal questions: (1) when is a Megan’s

Law registrant who faces internet publication under N.J.S.A. 2C:7-13(b)(2) entitled

to an evidentiary hearing to challenge the State’s proofs that the registrant’s conduct

established a pattern of compulsiveness and repetitiveness; and (2) whether, to

establish that the registrant’s conduct constituted a pattern of compulsiveness and

repetitiveness, the State may rely on a psychological report that had been prepared

for sentencing purposes under N.J.S.A. 2C:47-3, for which the burden of proof is by

a preponderance of the evidence, given that “Tier” classification determinations

require clear and convincing evidence.

In July 2016, then fourteen-year-old A.W. reported to police that her

grandfather, petitioner R.S., had sexually molested her for two years. R.S. later

admitted that he had touched his daughter in a similar manner when she was a minor.

R.S. was charged with one count of second-degree sexual assault against A.W. He

pled guilty as charged and underwent a psychological examination to determine

whether he should serve his sentence at the Adult Diagnostic Treatment Center at

Avenel (Avenel) pursuant to N.J.S.A. 2C:47-3. The Avenel evaluator prepared a

2017 report and concluded that “[R.S.’s] repetitive criminal sexual behavior was

performed compulsively,” and that R.S. was amenable and willing to participate in

sex offender treatment. The judge sentenced R.S. to four years at Avenel.

In June 2022, the Camden County Prosecutor’s Office notified R.S. that it

would seek Tier Two (moderate risk of reoffense) classification and community

notification with additional internet publication. Through counsel, R.S. challenged

two aspects of the State’s proposal. Pertinent to this appeal, R.S. argued he was

never found to have engaged in “repetitive and compulsive” behavior by clear and

convincing evidence as required for inclusion on the internet registry.

At the August 2022 Tier classification hearing, the assistant prosecutor

requested that the Megan’s Law judge find by clear and convincing evidence that

R.S.’s conduct was characterized by a pattern of repetitive and compulsive behavior.

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In response, the judge explained that R.S. “certainly would not have been eligible to

serve his sentence at [Avenel] if he was not found to be repetitive and compulsive”

and stated that she was “satisfied clearly and convincingly that [R.S.] is repetitive

and compulsive.” The Megan’s Law judge ordered Tier Two community

notification, including internet publication. The Appellate Division affirmed that

portion of the judgment, determining that the Megan’s Law judge correctly found,

based on clear and convincing evidence, that R.S.’s conduct was compulsive and

repetitive. The Court granted certification. 256 N.J. 349 (2024).

HELD: Under N.J.S.A. 2C:7-13(b)(2), a Megan’s Law registrant is entitled to an

evidentiary hearing if the registrant demonstrates that there exists a genuine issue of

material fact about whether the registrant’s conduct is characterized by a pattern of

repetitive and compulsive behavior. The State may rely on an earlier psychological

report that had been prepared pursuant to N.J.S.A. 2C:47-3, but the independent

findings by a Megan’s Law judge as to compulsivity and repetitiveness must be

based on clear and convincing evidence.

1. The Court reviews the history of Megan’s Law and the registration requirements

for which it provides, including the 2000 amendment to the New Jersey Constitution

pursuant to which the Legislature amended Megan’s Law to authorize internet

publication of certain sex offenders’ information. Through a 2014 amendment, the

Legislature broadened the reach of internet publication. Under that amendment,

codified at N.J.S.A. 2C:7-13(b)(2), an offender with a low or moderate re-offense

risk will be placed on the internet registry if the underlying sex offense was found to

be repetitive and compulsive pursuant to N.J.S.A. 2C:47-3. N.J.S.A. 2C:47-3

permits a sentencing judge to impose a term of incarceration to be served at Avenel,

rather than in state prison, if first, a psychological examination of the offender

“reveals that the offender’s conduct was characterized by a pattern of repetitive,

compulsive behavior” and second, the sentencing judge likewise finds “the

offender’s conduct was so characterized” and also that the offender is both amenable

to and willing to participate in treatment. At the sentencing stage, such findings are

made by a preponderance of the evidence. (pp. 13-19)

2. In L.A. v. Hoffman, 144 F. Supp. 3d 649 (D.N.J. 2015), two convicted sex

offenders filed a class action lawsuit challenging the 2014 Megan’s Law amendment

mandating that certain sex offenders’ information -- i.e., those with a low or

moderate risk of reoffending whose conduct was found to be repetitive and

compulsive -- be published on the sex offender internet registry. The Hoffman

parties settled the case, and the district court entered a Consent Order in March 2017

memorializing the agreement. Pursuant to that Consent Order, a registrant’s

information cannot be included on the internet registry unless the State “establishes

by clear and convincing evidence that the offender’s conduct was characterized by a

pattern of repetitive, compulsive behavior.” The Administrative Office of the Courts

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subsequently directed that “the determination to include certain sex offenders on the

Internet Registry in accordance with the [Hoffman Consent Order], will be decided

by Megan’s Law judges upon completion of their tier classification and community

notification hearing, and not at the time of sentencing.” (pp. 19-23)

3. Recognizing that the parties agree they are bound by the Hoffman Consent Order,

the Court holds that under N.J.S.A. 2C:7-13(b)(2), a Megan’s Law registrant is

entitled to an evidentiary hearing if the registrant demonstrates there exists a genuine

issue of material fact about whether the registrant’s conduct at the time the underlying

sex offense was committed was compulsive and repetitive. The Court furthers hold

that, for Tier classification purposes, the State may rely on a psychological report

prepared earlier pursuant to N.J.S.A. 2C:47-3. However, the independent findings by

a Megan’s Law judge as to compulsivity and repetitiveness must be made based on

clear and convincing evidence. When the State relies upon an Avenel report to meet

its burden by clear and convincing evidence, the registrant is not automatically

entitled to cross-examine the expert who authored the report. Registrants who wish

not to introduce their own evidence but only to cross-examine an Avenel expert must

point to a genuine issue of material fact with the expert’s report. Once that

prerequisite showing has been made, the Megan’s Law judge has discretion over the

scope of the limited evidentiary hearing. And whether an Avenel report alone

provides clear and convincing evidence that a registrant’s conduct was repetitive and

compulsive is to be determined on a case-by-case basis by the Megan’s Law judge.

But the Megan’s Law judge may not rely simply on the Avenel expert’s conclusion in

the report to support a finding that the registrant’s conduct was compulsive and

repetitive; instead, the judge must identify aspects of the report on the record that

support the judge’s independent findings and conclusions. See R. 1:7-4(a). (pp. 23-28)

4. Here, the Megan’s Law judge appears to have relied primarily on the 2017 Avenel

report’s conclusion that R.S.’s behavior was in fact repetitive and compulsive. The

Court remands to resolve whether an evidentiary hearing is warranted and,

irrespective of that determination, to allow the Megan’s Law judge to make

additional findings and conclusions in accordance with Rule 1:7-4(a). The judge

may continue to rely on the 2017 Avenel report when making independent findings

and conclusions regarding R.S.’s conduct but must identify aspects of the report on

the record that support those independent findings and conclusions as to whether

R.S. was clearly and convincingly repetitive and compulsive. (pp. 28-29)

The judgment of the Appellate Division is VACATED as to the single issue

before the Court. The matter is REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON,

PIERRE-LOUIS, WAINER APTER, and NORIEGA join in JUSTICE

FASCIALE’s opinion.

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SUPREME COURT OF NEW JERSEY

A-23 September Term 2023

088761

In the Matter of

Registrant R.S.

On certification to the Superior Court,

Appellate Division.

Argued Decided

May 1, 2024 July 2, 2024

Fletcher C. Duddy, Assistant Public Defender, argued the

cause for appellant R.S. (Jennifer N. Sellitti, Public

Defender, attorney; Fletcher C. Duddy and John P. Flynn,

Assistant Deputy Public Defender, of counsel and on the

briefs, and Alexander W. Geisel, Legal Fellow, on the

briefs).

Kevin J. Hein, Assistant Prosecutor, argued the cause for

respondent State of New Jersey (Grace C. MacAulay,

Camden County Prosecutor, attorney; Kevin J. Hein, of

counsel and on the briefs, and Matthew T. Spence,

Assistant Prosecutor, on the briefs).

Leslie-Ann M. Justus, Deputy Attorney General, argued

the cause for amicus curiae Attorney General of New

Jersey (Matthew J. Platkin, Attorney General, attorney;

Leslie-Ann M. Justus, of counsel and on the brief).

Jalen D. Porter argued the cause for amicus curiae

Association of Criminal Defense Lawyers of New Jersey

(Pashman Stein Walder Hayden, attorneys; Jalen D.

Porter and Raymond M. Brown, on the brief).

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Julia Bradley argued the cause for amicus curiae

American Civil Liberties Union of New Jersey (Gibbons

and American Civil Liberties Union of New Jersey

Foundation, attorneys; Julia Bradley, Lawrence S.

Lustberg, Alexander Shalom, and Jeanne LoCicero, on

the brief).

JUSTICE FASCIALE delivered the opinion of the Court.

A 2014 amendment to the Registration and Community Notification

Laws, collectively known as “Megan’s Law,” requires that certain sex

offenders be placed on the New Jersey Sex Offender Internet Registry,

including those “whose risk of re-offense is moderate or low and whose

conduct was found to be characterized by a pattern of repetitive, compulsive

behavior pursuant to the provisions of N.J.S.A. 2C:47-3.” L. 2013, c. 214 § 2

(codified at N.J.S.A. 2C:7-13(b)(2)) (effective July 1, 2014).

For Megan’s Law registrants facing internet publication under N.J.S.A.

2C:7-13(b)(2), the parties agree the State must prove by clear and convincing

evidence that the registrant’s conduct was repetitive and compulsive. They

agree further that those registrants may challenge the State’s proofs. For those

positions, the parties rely on a Consent Order entered in L.A. v. Hoffman, 144

F. Supp. 3d 649 (D.N.J. 2015).

In this appeal, we address two legal questions: (1) when is a Megan’s

Law registrant who faces internet publication under N.J.S.A. 2C:7-13(b)(2)

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entitled to an evidentiary hearing to challenge the State’s proofs that the

registrant’s conduct established a pattern of compulsiveness and repetitiveness;

and (2) whether, to establish that the registrant’s conduct constituted a pattern

of compulsiveness and repetitiveness, the State may rely on a psychological

report that had been prepared for sentencing purposes under N.J.S.A. 2C:47-3,

for which the burden of proof is by a preponderance of the evidence, given that

“Tier” classification determinations require clear and convincing evidence.

Recognizing that the parties agree they are bound by the Hoffman

Consent Order, we hold that under N.J.S.A. 2C:7-13(b)(2), a Megan’s Law

registrant is entitled to an evidentiary hearing if the registrant demonstrates

that there exists a genuine issue of material fact about whether the registrant’s

conduct is characterized by a pattern of repetitive and compulsive behavior.

We further hold that the State may rely on an earlier psychological report that

had been prepared pursuant to N.J.S.A. 2C:47-3, but we emphasize that the

independent findings by a Megan’s Law judge as to compulsivity and

repetitiveness must be based on clear and convincing evidence.

Here, the record must be more fully developed (1) to address whether an

evidentiary hearing is warranted and (2) for the Megan’s Law judge to make

further findings and conclusions. We therefore remand for further proceedings

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consistent with this opinion. Internet publication remains stayed pending

remand.

I.

A.

In July 2016, then fourteen-year-old A.W. reported to police that her

grandfather, petitioner R.S., had sexually molested her for two years. 1 A

detective report summarized A.W.’s statements to the police as follows:

[A.W.] disclosed that [R.S.] would come into her

room in the morning around 7:00 AM and would

massage her body. [A.W.] would pretend to be

sleeping. [R.S.] would touch her breast underneath

her shirt with his hand and would squeeze her breast.

[A.W.] further stated that [R.S.] would touch her

vagina over her underwear. She said that this has

occurred for two years on a daily basis, including this

morning.

A.W.’s mother then telephoned R.S. and allowed detectives to listen to

the conversation. On that call, R.S. apologized for touching A.W. in the

manner A.W. had reported. The police then conducted a recorded interview of

R.S. during which he admitted to touching A.W. in the mornings before he

went to work for the past two years, including that very morning. 2

1

We refer to the individuals involved in this appeal by initials to protect their

privacy. See R. 1:38-3(c)(9).

2

R.S. further admitted that he had touched his daughter in a similar manner

when she was a minor. Although R.S.’s daughter later confirmed to police that

4

R.S. was charged with one count of second-degree sexual assault against

A.W., in violation of N.J.S.A. 2C:14-2(b). R.S. pled guilty as charged and

underwent a psychological examination to determine whether he should serve

his sentence at the Adult Diagnostic Treatment Center at Avenel (Avenel)

pursuant to N.J.S.A. 2C:47-3. The Avenel evaluator prepared a 2017 report

and concluded that “[R.S.’s] repetitive criminal sexual behavior was performed

compulsively,” and that he was amenable and willing to participate in sex

offender treatment. Consequently, the judge sentenced R.S. to four years at

Avenel. See N.J.S.A. 2C:47-3(b) (providing that if a court finds that a sex

“offender’s conduct was characterized by a pattern of repetitive, compulsive

behavior and that the offender is amenable to sex offender treatment and is

willing to participate in such treatment, the court shall” sentence the defendant

to Avenel); State v. Howard, 110 N.J. 113, 126-27, 131 (1988) (applying a

preponderance of the evidence standard to a finding under N.J.S.A. 2C:47-

3(a)).

Before he was released from Avenel, R.S. underwent a second

psychological evaluation in July 2019, in which the evaluator noted R.S.’s

satisfactory progress and release plans. Indeed, using the “STATIC-99R”

her father had repeatedly sexually assaulted her between the ages of twelve

and fourteen, the statute of limitations barred prosecution for R.S.’s offenses

against his daughter.

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scale, R.S.’s low score suggested he had a “very low” risk of reoffending.

Nevertheless, the July 2019 report recommended continued treatment upon

release and that R.S. have “no unsupervised contact with female children.”

Avenel released him in December 2019.

B.

In June 2022, the Camden County Prosecutor’s Office notified R.S. that

his Registrant Risk Assessment Scale (RRAS) score was forty-one, which

reflected a moderate risk of reoffending, and that it would therefore seek Tier

Two classification and community notification with additional internet

publication. The “Megan’s Law Statement of Reasons” attached to the notice

stated in part that

[t]he State seeks internet notification. The State seeks

notification to schools and community groups at the

high and middle school levels. Normally [R.S.] would

qualify for the incest exception [to internet

notification] however due to his status as repetitive

and compulsive AND the fact he has multiple victims

overcomes the presumption against internet

publication.

In addition to providing R.S. with the day, time, and location of his Megan’s

Law Tier classification hearing, the notice informed R.S. that he may object to

the proposed classification. The notice detailed the procedures for doing so,

which included the submission of an “Application for Judicial Review” form.

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Through counsel, R.S. challenged two aspects of the State’s proposal.

First, R.S. argued his RRAS score should be reduced to thirty-six points,

relegating him to Tier One “low risk,” because he did not use “force” as

outlined in the RRAS’s first factor. Second, and pertinent to this appeal, R.S.

argued he was never found to have engaged in “repetitive and compulsive”

behavior by clear and convincing evidence as required for inclusion on the

internet registry. Relying on the Hoffman Consent Order, R.S. asserted that

“while an offender’s repetitive and compulsive conduct need only be proven

by a preponderance of the evidence for sentencing to [Avenel],” the standard is

clear and convincing at a Tier classification hearing when the State seeks to

include an offender on the internet registry. R.S.’s counsel stated that if the

Megan’s Law judge finds R.S.’s conduct to be clearly and convincingly

repetitive and compulsive, then R.S. would be requesting an adjournment “for

an updated psychosexual evaluation speaking to his repetitive and compulsive

designation.”

At the August 2022 Tier classification hearing -- the only hearing

conducted by the Megan’s Law judge in this case -- R.S. again objected to his

RRAS score. The judge rejected R.S.’s argument that factor one (dealing with

force) should be low risk and instead found him to be moderate risk. She

calculated R.S.’s RRAS score as forty-one.

7

The assistant prosecutor then requested that the Megan’s Law judge find

by clear and convincing evidence that R.S.’s conduct be characterized by a

pattern of repetitive and compulsive behavior. In response, the judge

explained that

there was a finding from the Avenel report that I did

review . . . that he was eligible for sentencing under

the . . . sex offender statute . . . . It was Avenel who

made the finding that h[is] [conduct] was repetitive

and compulsive . . . . In fact, he served his sentenc[e]

at [Avenel]. . . . He certainly would not have been

eligible to serve his sentence at [Avenel] if he was not

found to be repetitive and compulsive.

The judge elaborated that she reviewed the police reports and “the Avenel

report” and was “satisfied clearly and convincingly that [R.S.] is repetitive and

compulsive.” R.S.’s counsel moved to stay the Tier Two notification,

including internet publication, and essentially argued that the State failed to

meet its burden of proof. R.S.’s counsel reiterated his request for an

evidentiary hearing to challenge the State’s proofs that R.S.’s conduct could be

characterized, clearly and convincingly, by a pattern of repetitive and

compulsive behavior.

The Megan’s Law judge ordered Tier Two community notification,

including internet publication, but granted R.S.’s request for a stay to allow

R.S. to either obtain a new psychological examination of his own and move for

reconsideration or file an appeal. R.S. decided to appeal, and the Megan’s

8

Law judge thereafter entered a second stay of the imposition of the Tier Two

notification requirements, including internet publication, pending disposition

of the appeal.

C.

The Appellate Division affirmed in part and reversed in part. The

appellate court upheld internet publication, determining that the Megan’s Law

judge correctly found, based on clear and convincing evidence, that R.S.’s

conduct was compulsive and repetitive. It concluded that the Megan’s Law

judge “engaged in an independent assessment” regarding the characterization

of R.S.’s conduct and further noted that she relied on “all the other

information” provided at the hearing in addition to the “unrebutted” 2017

Avenel report. 3 Although the Appellate Division agreed that R.S. should be

placed on the sex offender internet registry, it nevertheless reversed in part,

remanded, and directed that the Megan’s Law judge classify R.S. “as a Tier

One low-risk offender with a score of thirty-six.” 4

3

The August 2022 Tier hearing transcript reveals the “other information”

included police reports and witness statements.

4

The State did not cross-appeal from the Appellate Division’s judgment

directing that the Megan’s Law judge classify R.S. as a Tier One, low-risk

reoffender. That issue is therefore not before us, but we note that under

N.J.S.A. 2C:7-13(b)(2), low-risk reoffenders whose conduct was repetitive and

compulsive are also subject to internet publication.

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D.

We granted R.S.’s petition for certification, 256 N.J. 349 (2024), and

stayed publication on the internet registry pending appeal. We granted leave

to the American Civil Liberties Union of New Jersey (ACLU), the Association

of Criminal Defense Lawyers of New Jersey (ACDL), and the Attorney

General, to participate as amici curiae.

II.

A.

R.S. relies on the Hoffman Consent Order. He contends that he is

entitled to “an adversarial evidentiary hearing” to challenge the State’s proofs

that his conduct could be characterized by a pattern of repetitiveness and

compulsiveness. He argues that a registrant is entitled to such a hearing upon

making “specific arguments . . . challeng[ing] the finding of a previous

[Avenel] report.”

R.S. further submits that a Megan’s Law judge cannot solely rely “on the

sentencing court’s previous ‘repetitive and compulsive’ finding, made by a

preponderance of the evidence.” On that point, R.S. emphasizes that the

Megan’s Law judge failed to “analyze any of the underlying information and

reasoning” in his 2017 Avenel report before finding R.S. was clearly and

convincingly repetitive and compulsive. He argues that a registrant is

10

presumptively entitled to cross-examine the Avenel expert and may “always”

challenge a compulsive and repetitive designation by marshalling “expert or

documentary evidence,” including evidence of subsequent therapeutic

treatment.

The ACLU supports R.S.’s arguments. Comparing the lower

preponderance of the evidence burden of proof at sentencing to the higher

clear and convincing standard at a Megan’s Law Tier classification hearing,

the ACLU argues that when the State has a higher standard of proof at a Tier

classification hearing, a registrant should be afforded a “full and fair

opportunity to test the State’s proofs” by cross-examining or marshalling their

own evidence. The ACLU cites to other court proceedings where a judge

permits additional evidence “to achieve the level of accuracy that the relevant

standard of proof demands.”

The ACDL likewise supports R.S.’s position and argues that R.S. is

entitled to a full evidentiary hearing. The ACDL discusses the various types

of relevant evidence that should be considered at a Megan’s Law Tier

classification hearing and emphasizes that an Avenel report created for

sentencing purposes “cannot alone be dispositive evidence” of a registrant’s

repetitive and compulsive conduct at the later Tier hearing. To allow

11

otherwise, the ACDL argues, would “erroneously” place registrants on the

internet registry.

B.

The State agrees that a Megan’s Law registrant facing a repetitive and

compulsive determination is entitled to “marshal evidence to rebut the State’s”

proofs at the Tier classification hearing. According to the State, R.S. failed to

challenge the 2017 Avenel report’s “material facts or conclusions.” Had he

done so, the State concedes that “cross-examination and other evidence

challenging the State’s submission [would be] expected” at the Tier

classification hearing.

The State contends that evidence of a low STATIC-99R score and

subsequent therapeutic treatment speak to a registrant’s mindset after the fact,

but that N.J.S.A. 2C:7-13(b)(2) focuses on the registrant’s mindset when they

committed the underlying sex offense. Furthermore, the State recognizes that

under the Consent Order in Hoffman, it has the burden of proving the

registrant’s conduct was repetitive and compulsive by clear and convincing

evidence. It submits however that it is possible for an initial Avenel report to

meet that standard.

The Attorney General generally supports the State’s position. The

Attorney General agrees that under the Consent Order in Hoffman and other

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Megan’s Law case precedent, the State must justify its proposed Tier

classification, including if it seeks internet publication, based on clear and

convincing evidence. Furthermore, the Attorney General does not dispute that

a registrant may be entitled to an evidentiary hearing. To warrant such a

hearing, the Attorney General asserts that the registrant must “interpose[]

objections sufficient to raise genuine issues of material fact” challenging that

the registrant’s conduct “was clearly and convincingly repetitive and

compulsive.” The Attorney General argues that R.S. failed to raise a genuine

issue regarding whether his conduct was repetitive and compulsive and, thus,

an evidentiary hearing was unwarranted.

III.

A.

Following “the abduction, rape, and murder of seven-year-old Megan

Kanka by her neighbor,” who unbeknownst to Megan’s family was a convicted

sex offender, In re Registrant H.D., 241 N.J. 412, 419 (2020), the New Jersey

Legislature enacted Megan’s Law in 1994, L. 1994, c. 133 (originally codified

at N.J.S.A. 2C:7-1 to -11). The Legislature declared that “[t]he danger of

recidivism posed by sex offenders” requires certain sex offenders to register

with law enforcement officials. N.J.S.A. 2C:7-1(a). The registration system

allows law enforcement “to identify and alert the public when necessary for

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the public safety” in addition to providing law enforcement “with additional

information critical to preventing and promptly resolving incidents involving

sexual abuse and missing persons.” Id. at -1(a), (b). Megan’s Law delegates

responsibility for implementing the registration and notification systems to

various governmental institutions, including to the Attorney General and the

Administrative Office of the Courts. See, e.g., id. at -3(2).

In furtherance of its legislative purposes, Megan’s Law has two core

components: (1) law enforcement registration and (2) community notification.

In re Registrant M.F., 169 N.J. 45, 52 (2001). The latter component requires

law enforcement to “provide notification of [an] inmate’s release to the

community” where the inmate intends to live. In re N.B., 222 N.J. 87, 95

(2015); N.J.S.A. 2C:7-6.

Megan’s Law uses a risk-based “Tier” notification system where the

degree of community notification depends on how likely a sex offender is to

reoffend. N.J.S.A. 2C:7-8(c). N.J.S.A. 2C:7-8(a) requires that the Attorney

General “promulgate guidelines and procedures for the notification” system.

The regulations are to “provide for three levels of notification depending upon

the risk of re-offense”: Tier Three (high risk) reoffender; Tier Two (moderate

risk) reoffender; and Tier One (low risk) reoffender. Id. at -8(c)(1), (2), (3).

When a registrant’s “risk of re-offense is low [(Tier One)], law enforcement

14

agencies likely to encounter the person registered shall be notified,” id. at

-8(c)(1), but when the re-offense risk is moderate (Tier Two), “organizations

in the community are also notified,” N.B., 222 N.J. at 95 (emphasis added)

(citing N.J.S.A. 2C:7-8(c)(2)). When a registrant’s “risk of re-offense is high

[(Tier Three)], notification is also given to members of the public who are

likely to encounter the registrant.” Ibid. (emphasis added) (citing N.J.S.A.

2C:7-8(c)(3)). 5

Moreover, the statute explicitly requires the Attorney General to

“develop procedures for evaluation of the risk of re-offense and

implementation of community notification,” which must, at a minimum,

require that the county prosecutor where the offender was convicted and the

county prosecutor where the offender now lives assess the registrant’s re-

offense risk together. N.J.S.A. 2C:7-8(d). The Attorney General Guidelines

mandate that an offender on parole or probation be notified “of their duty to

register and that, upon registration, they will be subject to a determination by

the Prosecutor’s Office as to which tier is appropriate in their circumstances,

5

The Attorney General Guidelines contain the RRAS, which is used to assess

a sex offender’s re-offense risk. N.B., 222 N.J. at 95 n.3. An RRAS score is

calculated by weighing several risk assessment criteria. Ibid. “An RRAS

score of 0 to 36 is low risk; 37 to 73 moderate risk; and 74 or more, high risk.”

In re T.T., 188 N.J. 321, 329 (2006) (citing Attorney General Guidelines for

Law Enforcement for the Implementation of Sex Offender Registration and

Community Notification Laws).

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based upon an assessment of a risk of re-offense.” Attorney General

Guidelines for Law Enforcement for the Implementation of Sex Offender

Registration and Community Notification Laws 8 (Attorney General

Guidelines) (rev. Feb. 2007), https://www.nj.gov/oag/dcj/megan/

meganguidelines-2-07.pdf. In addition to outlining the procedures for a

registrant’s Tier classification hearing where the State must prove that its

proposed Tier designation and community notification are appropriate, the

guidelines require that “[a]ll tier and scope of notification determinations made

by the court . . . be embodied in the court order, including posting on the

Internet Registry.” 6 Id. at 24, 28.

As technology advanced, so did the community notification requirements

under Megan’s Law. A 2000 amendment to the New Jersey Constitution

empowered the Legislature “[n]otwithstanding any other provision of this

Constitution and irrespective of any right or interest in maintaining

confidentiality,” to enact laws to “authorize . . . disclosure to the general

6

In addition to the Attorney General Guidelines, this Court’s “Outline of

Procedures for Megan’s Law Cases” likewise provides procedural rules for

Megan’s Law Tier classification hearings. Outline of Procedures for Megan’s

Law Cases (rev. Mar. 31, 2009). Recognizing that the Megan’s Law scheme is

complex and comprised of multiple authorities, our opinion today does not

disrupt the way Megan’s Law judges have been conducting Tier classification

proceedings. Indeed, Megan’s Law judges have generally been following the

standard we have outlined today. We anticipate that will continue and intend

our holding to be harmonious with current practices.

16

public of information pertaining to the identity, specific and general

whereabouts, physical characteristics and criminal history of persons found to

have committed a sex offense.” N.J. Const. art. IV, § 7, ¶ 12 (effective Dec. 7,

2000). Pursuant to the constitutional amendment, the Legislature amended

Megan’s Law in 2001 to authorize internet publication of certain sex

offenders’ information. L. 2001, c. 167 (codified at N.J.S.A. 2C:7-12 to -19).

In addition to creating the New Jersey Sex Offender Internet Registry, the

Megan’s Law amendment mandates that “information in the State registry

about certain sex offenders [be] publicly available on the internet.” N.B., 222

N.J. at 95-96; N.J.S.A. 2C:7-12. As originally enacted, only those sex

offenders whose risk of re-offense was high or whose risk of re-offense was

moderate but did not fall within a statutory exemption were placed on the

internet registry. L. 2001, c. 167 § 2 (codified at N.J.S.A. 2C:7-13(b), (d)).

Through a 2014 amendment, however, the Legislature broadened the

reach of internet publication. See L. 2013, c. 214 § 2 (codified at N.J.S.A.

2C:7-13(b)(2)). That 2014 Amendment, which is central to this appeal,

provides that

[t]he public may, without limitation, obtain access to

the Internet registry to view an individual registration

record, any part of, or the entire Internet registry

concerning all offenders . . . whose risk of re-offense

is moderate or low and whose conduct was found to be

characterized by a pattern of repetitive, compulsive

17

behavior pursuant to the provisions of N.J.S.A. 2C:47-

3.

[N.J.S.A. 2C:7-13(b)(2).]

Thus, an offender with a low or moderate re-offense risk will be placed on the

internet registry if the underlying sex offense was found to be repetitive and

compulsive pursuant to N.J.S.A. 2C:47-3. Ibid.

N.J.S.A. 2C:47-3 is a “provision[] of the Code of Criminal Justice

relating to sex offenders” that “empower[s] the sentencing court to impose a

sentence at Avenel.” Howard, 110 N.J. at 126 (emphasis added). After a

conviction of certain sex crimes, N.J.S.A. 2C:47-3 permits a sentencing judge

to impose a term of incarceration to be served at Avenel, rather than in state

prison, if first, a psychological examination of the offender “reveals that the

offender’s conduct was characterized by a pattern of repetitive, compulsive

behavior” and second, the sentencing judge likewise finds “the offender’s

conduct was so characterized” and also that the offender is both amenable to

and willing to participate in treatment. N.J.S.A. 2C:47-3(a), (b) (emphasis

added). At the sentencing stage, such findings are made by a preponderance of

the evidence. Howard, 110 N.J. at 126-27, 131. An Avenel report that

concludes an offender’s conduct was repetitive and compulsive plays a major

role in determining whether the offender should be sentenced to Avenel for

treatment. See N.J.S.A. 2C:47-1 to -3.

18

Megan’s Law and the statutory scheme dealing with alternative

sentencing for sex offenders use the same “repetitive and compulsive”

language. Compare N.J.S.A. 2C:7-13(b)(2), with N.J.S.A. 2C:47-3. In fact,

Megan’s Law specifically applies to those “whose conduct was found to be

characterized by a pattern of repetitive, compulsive behavior pursuant to the

provisions of N.J.S.A. 2C:47-3,” i.e., at sentencing. See N.J.S.A. 2C:7-

13(b)(2) (emphasis added). In addition, although N.J.S.A. 2C:47-3 deals with

sentencing and N.J.S.A. 2C:7-13(b)(2) is relevant only after a sentence is

served, both statutes require a determination about whether the offender’s

conduct -- i.e., the underlying sex offense -- was repetitive and compulsive

viewed at the time the offender committed the offense. See In re Registrant

D.F.S., 446 N.J. Super. 203, 207-08 (App. Div. 2016) (“[T]he decision

whether . . . an offender’s individual registration record ‘shall be made

available to the public on the Internet registry’ depends on the nature of [the]

sexual offenses at the time [the offender] committed them, and not on [the

offender’s] mental condition at the time of the tier hearing.” (quoting N.J.S.A.

2C:7-13(e))).

B.

A challenge to the validity of the 2014 Amendment shortly followed its

enactment. In Hoffman, two convicted sex offenders filed a class action

19

lawsuit challenging the 2014 Megan’s Law amendment mandating that certain

sex offenders’ information -- i.e., those with a low or moderate risk of

reoffending whose conduct was found to be repetitive and compulsive -- be

published on the sex offender internet registry, N.J.S.A. 2C:7-13(b)(2). 144 F.

Supp. 3d at 657. The plaintiffs argued that the 2014 Amendment violated their

state and federal procedural due process rights because “their sentencing

hearings only employed a preponderance of the evidence standard to find their

conduct compulsive and repetitive,” whereas being placed on the internet

registry requires “an additional hearing to establish compulsive and repetitive

behavior by clear and convincing evidence after they have completed their

state-mandated treatment.” Id. at 668-69.

The defendant, New Jersey’s Attorney General, moved to dismiss the

plaintiffs’ complaint in its entirety for failure to state a claim. Id. at 657. The

United States District Court for the District of New Jersey granted the motion

in part, dismissing all but the plaintiffs’ federal procedural due process claim.

Id. at 657, 669 n.12.

As to the plaintiffs’ procedural due process claim emanating from the

New Jersey Constitution, the district court held that the 2000 Amendment to

the New Jersey Constitution “extinguish[ed] any privacy rights sex offenders

might have had vis-à-vis the [sex offender internet registry], thereby

20

abrogating the procedural due process rights that the [E.B. v. Verniero, 119

F.3d 1077 (3d Cir. 1997)] court had found under the New Jersey Constitution.”

Id. at 669. But in allowing the plaintiffs’ federal procedural due process claim

to continue, the court determined that the Third Circuit in A.A. v. New Jersey,

341 F.3d 206 (3d Cir. 2003), “found sex offenders’ privacy interests in their

personal information emanates from the federal constitution” and that E.B.’s

procedural safeguards therefore still apply. Ibid. Accordingly, the district

court held that using a preponderance of the evidence standard “may deprive”

the plaintiffs of E.B.’s procedural protections and that “under the facts alleged,

the [Federal] Due Process Clause requires that the State prove [the plaintiffs’]

compulsivity and repetitiveness by clear and convincing evidence.” Id. at 671-

72.

The Hoffman parties subsequently settled the case, and the district court

entered a Consent Order in March 2017 memorializing the agreement. Among

other provisions, the parties agreed that

[t]he Internet registry record of any offender whose

conduct was found on or after July 1, 2014 to be

characterized by a pattern of repetitive, compulsive

behavior pursuant to the provisions of N.J.S.A. 2C:47-

3 under a “preponderance of the evidence” burden of

proof whose risk of re-offense is moderate or low and

for whom the court has not ordered notification in

accordance with paragraph (2) of subsection c. of

N.J.S.A. 2C:7-8 shall not be subject to public viewing

on the Internet registry established pursuant to

21

N.J.S.A. 2C:7-12 et seq. unless and until the State, in

a sentencing proceeding conducted pursuant to

N.J.S.A. 2C:47-3, a Megan’s Law tier classification

hearing or such other judicial proceeding as may be

determined by the Administrative Office of the

Courts, establishes by clear and convincing evidence

that the offender’s conduct was characterized by a

pattern of repetitive, compulsive behavior.

[L.A. v. Hoffman, Stipulation and Order, ¶ 3, 14-cv-

6895 (Mar. 16, 2017) (emphases added).]

The Consent Order also provided that the Attorney General may effectuate the

Order “through the issuance of Attorney General Guidelines, directives,

trainings, and/or any other manner” the Attorney General deemed appropriate.

Id. at ¶ 4.

Months after the Consent Order, the Acting Administrative Director of

the Courts advised the Attorney General and Public Defender that “the

determination to include certain sex offenders on the Internet Registry in

accordance with the [Hoffman Consent Order], will be decided by Megan’s

Law judges upon completion of their tier classification and community

notification hearing, and not at the time of sentencing.” Memorandum from

Hon. Glenn A. Grant, J.A.D., Acting Administrative Director of the Courts,

Megan’s Law -- Compliance with Federal Court Order -- Determining Internet

Registry Inclusion of Certain Sex Offenders at the Tier Classification Hearings

1 (AOC Memorandum) (Dec. 28, 2017). The memorandum reiterated that (1)

22

the State’s burden of proving that a sex offender’s conduct was repetitive and

compulsive is by clear and convincing evidence, and (2) Megan’s Law judges

are to “make the requisite findings at the tier classification hearing.” Ibid.

IV.

A.

Recognizing that the parties agree they are bound by the Hoffman

Consent Order, we hold that under N.J.S.A. 2C:7-13(b)(2), a Megan’s Law

registrant is entitled to an evidentiary hearing if the registrant demonstrates

there exists a genuine issue of material fact about whether the registrant’s

conduct can be characterized by a pattern of repetitive and compulsive

behavior. 7

7

The parties devote most of their respective briefs to discussions about

procedural due process. We recognize the line of cases challenging the

constitutionality of Megan’s Law both before and after the 2000 constitutional

amendment. In this appeal, the parties do not challenge the effect, if any, that

the 2000 Amendment may have on the Megan’s Law cases cited not only by

the parties here, but also relied upon by the parties in Hoffman. Independent

of those references, the Hoffman Consent Order and subsequent AOC

Memorandum -- both of which do not mention any Megan’s Law cases --

sufficiently provide the basis for our holding. Indeed, the State and the

Attorney General particularly agree that: (1) they are bound by the Consent

Order; (2) the State has the burden to prove at the Megan’s Law Tier

classification hearing that the registrant’s conduct -- at the time it was

committed -- was clearly and convincingly repetitive and compulsive; and (3)

a Megan’s Law registrant facing internet publication under N.J.S.A. 2C:7-

13(b)(2) who aptly challenges the State’s proofs is entitled to present evidence

on the repetitive and compulsive characterization of their conduct.

23

To raise a genuine issue of material fact, the registrant must interpose

more than general denials, self-serving assertions, bald declarations, or vague

and conclusory claims. Objections to the State’s characterization that a

registrant’s conduct constituted repetitive and compulsive behavior must be

rooted in some reliable or credible evidence. Objections also must be material.

“Materiality” bears upon whether the registrant’s conduct was clearly and

convincingly repetitive and compulsive at the time the underlying sex offense

was committed. Therefore, an objection must raise a genuine dispute about the

registrant’s repetitiveness and compulsiveness. Whether to conduct an

evidentiary hearing -- and its scope -- should be left to the sound discretion of

the Megan’s Law judge, who should state on the record the reasons for

granting or denying such a hearing.

“It is black letter law that where a material factual matter is contested, it

cannot be relied on without a resolution of the disputed evidence.” State v.

Hupka, 203 N.J. 222, 241 (2010). In the summary judgment context, a

“genuine issue as to any material fact” requires more than just disputing “facts

which are immaterial or of an insubstantial nature, a mere scintilla, ‘[f]anciful,

frivolous, gauzy or merely suspicious.’” Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 529 (1995) (first quoting R. 4:46-2; and then quoting

Judson v. Peoples Bank & Tr. Co. of Westfield, 17 N.J. 67, 75 (1954)). The

24

facts disputed must be about an issue that “might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (defining materiality in the summary judgment context as dependent on

the applicable substantive law).

Similarly, in the post-conviction context, a defendant seeking post-

conviction relief (PCR) may be entitled to an evidentiary hearing upon a

showing that “there are material issues of disputed fact that cannot be resolved

by reference to the existing record.” R. 3:22-10(b). In fact, “[a] court shall

not grant an evidentiary hearing . . . if the defendant’s allegations are too

vague, conclusory or speculative.” Id. at (e)(2).

Those principles generally strike a balance between a party’s

“opportunity to fully expose [its] case” and “reserv[ing] judicial manpower

and facilities.” Brill, 142 N.J. at 541-42 (quoting Robbins v. City of Jersey

City, 23 N.J. 229, 240-41 (1957)). We find no reason why those legal

principles are not equally appropriate when a Megan’s Law registrant facing

internet publication under N.J.S.A. 2C:7-13(b)(2) seeks an evidentiary hearing

to challenge the State’s characterization that a registrant’s conduct constituted

repetitive and compulsive behavior, especially given that the State and

Attorney General agree that Megan’s Law registrants who adequately

25

challenge material facts, whether in an Avenel report or otherwise, are entitled

to proffer evidence at a hearing.

B.

We further hold that, for Tier classification purposes, the State may rely

on a psychological report prepared earlier pursuant to N.J.S.A. 2C:47-3. We

emphasize, however, that the independent findings by a Megan’s Law judge as

to compulsivity and repetitiveness must be made based on clear and

convincing evidence.

When the State relies upon an Avenel report to meet its burden by clear

and convincing evidence, the registrant is not automatically entitled to cross-

examine the expert who authored the report. The State and Attorney General

both agree that a registrant may always challenge the State’s proofs that the

registrant’s conduct established a pattern of compulsiveness and repetitiveness

by introducing their own evidence. But registrants who wish not to introduce

their own evidence but only to cross-examine an Avenel expert must articulate

with particularity the reasons they need such an opportunity. That is, the

registrant must point to a genuine issue of material fact with the expert’s

report. Once that prerequisite showing has been made, which we anticipate

will be rare, the Megan’s Law judge has discretion over the scope of the

limited evidentiary hearing. We stress that the focus must be on identified

26

disputed issues of material facts -- those applicable to the State’s

characterization that the registrant’s conduct constituted compulsive and

repetitive behavior -- which “cannot be resolved by reference to the existing

record.” See R. 3:22-10(b), (d) (outlining when a PCR evidentiary hearing is

necessary and providing that when such a hearing is granted, the scope “shall

be limited to the issue of whether the defendant was improperly convicted”).

Furthermore, we do not foreclose the possibility that the State may

satisfy its burden of proof by relying solely on an Avenel report that found the

registrant’s conduct to be a pattern of repetitiveness and compulsiveness for

purposes of sentencing. Whether an Avenel report alone provides clear and

convincing evidence that a registrant’s conduct was repetitive and compulsive

is to be determined on a case-by-case basis by the Megan’s Law judge. See In

re Brady, 243 N.J. 395, 411 (2020) (“Clear-and-convincing evidence is that

which produce[s] . . . a firm belief or conviction as to the truth of the

allegations sought to be established, evidence so clear, direct and weighty and

convincing as to enable [the factfinder] to come to a clear conviction, without

hesitancy, of the precise facts at issue.” (alterations and omission in original)

(quoting In re Williams, 169 N.J. 264, 271 (2001))).

Under those circumstances, the State is not required to produce more

evidence to meet its burden, but the Megan’s Law judge must make specific

27

factual findings and conclusions about whether the State has met its clear and

convincing burden of proof. In other words, the Megan’s Law judge may not

rely simply on the Avenel expert’s conclusion in the report to support a finding

that the registrant’s conduct was compulsive and repetitive. Instead, the

Megan’s Law judge must identify aspects of the report on the record that

support the judge’s independent findings and conclusions. See R. 1:7-4(a).

V.

Turning to this appeal, the Megan’s Law judge found that R.S.’s conduct

was clearly and convincingly repetitive and compulsive. She appears to have

relied primarily on the 2017 Avenel report’s conclusion that R.S.’s behavior

was in fact repetitive and compulsive. Although we ordinarily review a trial

judge’s “conclusions regarding a Megan’s Law registrant’s tier designation

and scope of community notification for an abuse of discretion,” In re

Registrant B.B., 472 N.J. Super. 612, 619 (App. Div. 2022), we need not reach

that question here.

Instead, we remand to resolve whether an evidentiary hearing is

warranted and, irrespective of that determination, to allow the Megan’s Law

judge to make additional findings and conclusions in accordance with Rule

1:7-4(a). On remand, the Megan’s Law judge may of course continue to rely

on the 2017 Avenel report when making independent findings and conclusions

28

regarding R.S.’s conduct, but the remand judge must identify aspects of the

report on the record that support those independent findings and conclusions as

to whether R.S. was clearly and convincingly repetitive and compulsive. See

R. 1:7-4(a).

VI.

We therefore vacate the judgment of the Appellate Division as to the

single issue before us, and we remand for further proceedings consistent with

this opinion. Internet publication remains stayed pending remand.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON,

PIERRE-LOUIS, WAINER APTER, and NORIEGA join in JUSTICE

FASCIALE’s opinion.

29