Paul P. Ex Rel. Laura L. v. Verniero

highly prejudicial error vania law. We therefore affirm the decision to a fundamental of the district court. justice.” miscarriage of Fleck a resulting in Pools, Inc., 981 F.2d Sylvan v. KDI Cir.1992). record, reviewing the Upon miscarriage justice. no

we find Pennsylvania law,

Under causa prod tion is an essential element of strict (a minor, L., legal PAUL P. Laura his liability Toyota claim. See Charlton v. ucts guardian); Quincy Q.; R.; Ronald Ste (Pa.Su 1043, 1046 Equip., Indus. 714 A.2d (a minor, by Sally S., legal ven S. per.Ct.1998). Although a defendant cannot (all guardian) names), fictitious Individ argue plaintiff negligent, that a was see ually Representatives and as of a class Childers, at 681 A.2d defendant can 23(a) pursuant to Fed. R. Civ P. conduct, argue 23(b)(2) defect, alleged was the sole cause of her v. Charlton, injuries. 1047; See 714 A2d at VERNIERO, Attorney Peter General of Davidson, Inc., Harley Madonna v. 708 A2d Jersey; Jeffrey Blitz, New S. Atlantic (Pa.Super.Ct.1998). Prosecutor; County Schmidt, William Bergen County Prosecutor; Stephen G. case, In this own Wilson’s counsel elicited Raymond, Burlington County Prosecu surrounding the evidence Wilson’s actions to tor; Solomon, Acting Lee A. Camden day. demonstrate what occurred on that County Prosecutor; Stephen Moore; D. Castings merely Vermont cross-examined Cape May County Prosecutor; Arthur her on these events. Nor did Vermont Cast- Marchand, County Cumberland Prose ings argue that negligent; Wilson was rath- cutor; Minor, County Clifford J. Essex er, conduct, it argued Wilson’s not the Prosecutor; Yurick, Andrew Gloucester defect, alleged was the sole cause of the County Prosecutor; Messano, Carmen Thus, Castings’s ques- accident. Vеrmont County Prosecutor; Stephen Hudson B. arguments tions and based on this evidence Rubin, County Prosecutor; Hunterdon Pennsylvania were consistent with law and Maryann Bielamowicz, K. Mercer Coun did a miscarriage justice. not result Prosecutor; ty Gluck, Robert Mid W. County Prosecutor; Kaye,

dlesex John County Prosecutor; Monmouth John B. III. Dangler, County Prosecutor; Morris Carluccio, County Daniel J. Ocean Pros juror’s We conclude that the misconduct in ecutor; Fava, County Ronald S. Passaic prejudice this case did not Wilson. We also Prosecutor; Epstein, Ronald A. Salem conclude that Wilson preserve failed to County Prosecutor; Camp Melaine B. appeal argument her Castings Vermont bell, Acting County Somerset Prosecu impermissibly accused acting negli- Wilson of tor; O’Leary, County Dennis Sussex gently. preserved Even if she had argu- her Prosecutor; Neafsey, Acting Edward ment, we conclude that Castings’s Vermont County Prosecutor; Union John J. arguments permissible Pennsyl- O’Reilly, under County Warren Prosecutor obligation objection violated) to renew his (citing once he Roenigk, United States v. thought Castings (8th 1987)); ruling. Vermont violated this F.2d Cir. see also Kostelec v. Virgin Joseph, Co., Islands 964 F.2d 1384- State Farm Fire & Cas. Cf. (3d Cir.1992) (defendant (8th Cir.1995) (" 85 & 3 preserved n. objection required pre 'An appeal itself, issue for when motion in limine opponent, denied serve error when an or the court trial; object (is contrasting he failed to at situa claimed to have] violatefd] a motion in limine ”) prevails tion granted.’ where a defendant (quoting on motion Roenigk, that wаs object 815). limine ruling and fails at trial when that (a minor, by L., legal P. Laura (all guardian) and Ronald R. fictitious names), rep- on their own behalf and as pursuant

resentatives of a class to Fed. 23(a) 23(b)(2), Appellants.

R. Civ. P.

No. 97-5791. Appeals,

United Court of States

Third Circuit.

Argued July March

Decided crimes, are re- specified

eonvicted of sex § quired comply J. Stat. Ann. 2c:7- with N. Law,” “Megan’s seq., 1 et known as provides system registration for a community Named as defen- notification. Attorney are the General of New Jer- dants (col- sey County Prosecutors and ‍​​‌​‌‌​​​‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​​​​‌​​‌​​‍numerous defendants”). lectively, the “State Verniero, action, In a related E.B. — (3d Cir.1997), denied, cert. -, 140 L.Ed.2d 105 this court the claims of com community parably persons that the situated requirements notification violate the Double Jeopardy Clause or the Ex Post Facto Clause of the United States Constitution. (Argued), Michaеl Z. Barocas Edward L. holding on the predicated That of E.B. was Defender, Trenton, Buncher, Public Office of required conclusion that NJ, Attorneys Appellants. for punish not constitute Law does (Ar- Yannotti, Joseph Peter G. Verniero L. Judge, Judge, ment. now Chief Becker dis Berliner-Gold and B. Ste- gued), Rhonda S. holding. portion sented to this The Finkel, Attorney phan General of Office Due Pro- E.B. decision also held that Trenton, NJ; Gladys Jersey, E. Rodri- New by any ... cess Clause violated Prosecutor, Camden, County guez, Office Tier 2 or Tier 3 notification that occurred NJ; County Betsy Phillips, Office of Pros- L. prior opportunity challenge without a NJ; Lotstein, ecutor, Nancy Mays Landing, registrant’s classification and notification Prosecutor, NJ; Woodbury, County Office of plan in a hearing prosecutor at which the has O’Brien, County Office of Prosecu- Maureen persuasion prove the burden of and must her tor, Elizabeth, NJ, Attorneys Appellees. for convincing case clear and evidence.” Id. Hochberg, Faith S. United States Attor- at 1111. Camden, NJ; ney, George (Argued), S. Leone case, challenge raise a Newark, NJ; Attorney, Assistant U.S. Frank Law that claim is different General, Attorney Hunger, Assistant W. They argue from that considered in E.B. Schaitman, Keats, Wendy Leonard M. Attor- statutory requirement the class Division, neys, Appellate Depart- Staff Civil provide members extensive information to Justice, DC, Washington, Attorneys ment of including local personnel, law enforcement Support- for United States as Am'icus-Curiae data, registrant’s biographical each current ing Appellees. address, physical description, place home Before: SLOVITER and ROTH Circuit employment, schooling, description * FULLAM, Judges, Judge District plate registrant’s license number of the vehi-

cle, subsequent and the notifica- constitutionally THE tion is OPINION OF COURT a violation of their protected right SLOVITER, Judge. Circuit statutory The scheme is described in detail I. E.B., only briefly and we refer to the registra- P. on his explained Plaintiff Paul sues behalf and on salient details. We who, persons having behalf requirements of a class been tion as follows: * Fullam, nia, sitting by designation. Hon. John P. Senior United States Dis- Judge Pennsylva- trict for the Eastern District of provide following against registrant jeopardy must double and cruel and unusu information to the chief law enforcement punishment, al yet E.B. had not been decid municipality in officer of the which he re- ed. This shortly court decided E.B. thereaf name, security number, age, sides: social defendants, ter. The State relying on race, sex, birth, height, weight, date of hair summary for judgment; moved plaintiffs ar color, residence, eye legal address gued in opposition that dispose E.B. did not temporary legal address of current of their claim and that discovery was residence, place employ- and date and alia, required, inter on the process due 2C:7-4b(l). ment. He N.J.S.A con- must 29, 1997, claim. On October the District every ninety firm days, notify address granted the State defendants’ motion municipal agency law enforcement if he summary judgment as to all moves, re-register with еn- the law plaintiffs’ process due claim. See Paul P. v. any agency of new municipality. forcement Verniero, (D.N.J.1997). F.Supp. 961 At 2C:7-2d to e. N.J.S.A request the of plaintiffs the the with General, Attorney consent of (quoting Artway Attorney Id. at the the court Gen eral, 1235, 1243 Cir.1996)). the appealable certified order as under Fed 54(b). eral Rule of Civil Procure The court provided by The registrant the granted summary later judgment the for put registry, open into a central to other State process defendants on the due claim. personnel law enforcement but not to plaintiff The class appeal limits its to the inspection. Law enforcement officials then claim Megan’s that Law violates its constitu provided apply use the data to a “Risk As- rights tional to The State defen Scale,” scoring system, sessment a numerical States, dants and the United which has filed registrant’s determine of “risk of- brief, vigorously amicus support the stat fense” and the tier in registrant which the ute. should be classified. In the case of Tier 1 registrants, given only notification is to law II. agents “likely to

enforcement encounter” risk,” registrant. Tier or “moderate notifi- legal The foundation plaintiffs’ given cation is to law agents, enforcement claim is the recognition Court’s that schools, community organizations “likely there is “a personal privacy, of or a registrant. encounter” Tier guarantee of certain areas or zones of priva risk,” “high goes notification to all members cy,” protected by the United States Constitu “likely regis- encounter” the Wade, 113, 152, tion. Roe v. 410 U.S. generally trant. Notifications contain a (1973). S.Ct. 35 L.Ed.2d 147 This warning information is confidential “guarantee personal privacy” “only covers others, and should not be disseminated to as personal rights that can be deemed ‘funda well as an admonition that actions taken ‘implicit mental’ or concept of ordered ” against registrant, assaults, such as are liberty.’ privacy right This “has some illegal. relating extension to activities marriage, The prosecutor provide procreation, contraception, family must regis- relation ships, rearing trant notice of the and child proposed with and education.” Id. notification. (citations omitted). pre-notification judicial A at 152-53 review рrocess is any registrant available for who wishes argue Plaintiffs Law in- challenge his or her classification. fringes upon constitutionally protected their are Tier 2 and regis- ways. Tier interests two One is trants who have been certified as them, a class and dissemination of information about whose offenses committed the en- particularly by disseminating after most then- both actment of Law. When P. filed home “compilation and a of infor- addresses original complaint on June al- mation which would remain otherwise ‘scat- ” leging that the statute violated con- ‘wholly forgotten.’ tered’ or Appellants’ rights process, stitutional due Br. other claim Their prohibition as well as the constitutional infringes upon their he assessment that intimate rela- and law enforcement’s in their most “privacy interests children, risk, seek spouses, continuing registrants their so with was a tionships —those family Appel- disclosure protection members.” from what follow parents, and offense convic- at 12. of facts related to their sex lants’ Br. judgment resulting tions and cate- to invoke the two Plaintiffs thus seek continuing It are a risk. state that interests identified gories that, publica- just as the officers’ follows Roe, 429 U.S. in Whalen v. Supreme Court act of Davis’ arrest did tion of the.official 51 L.Ed.2d 64 privacy right not violate fundamental “The cases some- the Court stated: where Davis’, Jersey’s publi- New neither does ‘privacy’ protecting characterized as times notification) registrants’ (through cation least two different have in fact involved at dangerousness findings of convictions and is the individual kinds of interests. One implicate any interest of fundamental con- personal avoiding interest disclosure magnitude. stitutional matters, interest in and another is the inde- impor- making certain kinds pendence 119 F.3d at 1103. 598-600, 97 S.Ct. 869

tant Id. at decisions.” the contention dissemina- omitted). (footnotes activity tion of information about criminal beyond personnel our is analo- parties dispute the extent which law enforcement The privacy dispositive gous punishments, of the to historical such as the decision in E.B. is stocks, cages, in this case. Plaintiffs con- and scarlet letters. found issue before us We raised, issue was instead that the dissemination is more like privacy tend that no briefed, “rap in E.B. and thаt the dis- the of sheet” information argued or dissemination associations, regulatory pro- relating agencies, to cases on which to bar cussion in E.B. defendants, they rely spective employers, The State and interested members is dictum. indictment, hand, portions public public of regard public on the of the trial, community holding public imposition of sentence neces- the E.B. decision implicate sarily a fundamental notification does not entail. Id. at 1100-01. We noted that finding compel- privacy although Supreme recognized of a the Court later interest and Department Justice v. ling protecting ‍​​‌​‌‌​​​‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​​​​‌​​‌​​‍state interest United States of offenders,” Reporters as “con- Committee Freedom from recidivist sex of for Press, 1468, Appеl- trol[ling] the in this case.” 489 U.S. 109 S.Ct. decision (1989), thus turn to examine the that the dissemination of lees’ Br. at 12. L.Ed.2d interest, “rap implicates privacy E.B. decision. sheets” determining there was whether a during privacy arose in E.B. our issue “privacy “rap sheet” fell under the interest” analysis of whether protected by exemption to the Freedom of pun- by Megan’s mandated Law constitutes (“FOIA”), protected Information Act not that ishment the Ex Post Facto purposes of by pointed out that the the Constitution. We and Double that con- Jeopardy Clauses. Supreme Court itself made the distinction text, sting from “primary we stated that the interest, types privacy of between two by way comes of law'notification quoted Reporters its statement and we injury reputational to what is ... as denoted Committee, 489 U.S. at 762 n. 109 S.Ct. myriad interests. This includes ... question statutory that “[t]he ways differently ... treated in which one is is, meaning privacy under FOIA potentially as a being virtue of known course, question ... not the same as the E.B., dangerous offender.” 119 F.3d at sex privacy an individual’s interest in whether to the We then referred E.B., protected the Constitution.” Davis, 424 holding Court’s in Paul v. F.3d at 1100 n. 21. (1976), L.Ed.2d 405 96 S.Ct. stating: respect, disagreed with the Su In this we which, Jersey in Doe v. sought protec- preme

Just constitutional Court of New as Davis 1, 83-87, Poritz, 409- 662 A.2d of state disclo- 142 N.J. consequences tion from the Reporters Com- interpreted had sure of the arrest shoplifting fact of his the conclusion that a to be compel dispute mittee to federal little that this issue was not implicated directly presented constitutional Nonetheless, there. our E.B., 119 F.3d at notification. See 1103n. key cases, characterization in E.B. of such as Finally, concluded in E.B. that even if we Reporters Davis, Committee and Paul v. right” implicated, a “fundamental “the merits considerable deference and we are not justify here suffice to state’s interest likely disagree colleagues with our absent deprivation.” Id. at 1104. compelling reasons to do so. Determining import of this discussion hand,

in E.B. is difficult. On the one it has III. dictum, significance more than mere as it holding was relevant to the cases, In several this court has considered hand, punitive. Law was not On the other types what protected be discussion arose in context different from disclosure based on а interest. here; than it does issue was In Fraternal City Order Police v. Phila- tangential to the determination of the differ- delphia, Cir.1987), 112-17 ent constitutional issues raised. The discus- we stated that determining “[i]n in- whether sion also focused on the dissemination of formation is entitled to protection, we “registrants’ information —the fact of convic- have looked at whether it is within an indi- dangerousness” findings tions and is—that vidual’s expectations reasonable of confiden- portion to some extent distinct from the tiality. The more intimate personal challenge the disclosures now —the information, justified the more expec- is the revelation of their home addresses and the tation that it subject will not compilation of otherwise scattered informа- scrutiny.” Id. at 112-13. Finally, began tion. we note that in caveat, opinion our with the “The issues be- Many of the cases in finding this circuit a relatively fore us are difficult narrow. privacy interest in preventing disclosure have upon We are not called to decide whether concerned medical information or medical constitutionally applied Law can records. Almost ago, two decades we stated to one desig- who has committed one of the in United Westinghouse States v. Electric sex nated crimes after its enactment.” Id. at Corp., Cir.1980), “[A]l- 1081. though the full measure of the constitutional protection of the privacy yet has not apparently District Court this case [tjhere delineated, been difficulty rejecting had little ... privаcy ques Paul P.’s can be no employee’s records, claims based on the decision in tion that an E.B. It stat- medical ed, “we find that the Third Circuit which in E.B. contain intimate a person facts of nature, registrants’ rights privacy did address al are well within the ambit of mate explicitly found that privacy protection.” rials entitled to Id. at does not violate fundamental substantive Similarly, Police, in Fraternal Order of P., process right.” due F.Supp. 982 at we held that the police medical information a Nonetheless, the court continued its questionnaire sought employees to elicit from by “assuming discussion the Third Circuit’s protection was entitled to against disclosure. analysis only E.B. reputational addressed fact, 812 F.2d at 112-13. In in Doe v. SEP registrants, interests of not the interеsts TA, (3d Cir.1995), specifical F.3d 1133 we asserting,” are now and it then ly held that medical prescription records are registrants’ concluded that interests in “within the ambit of protected information concerning information their home address 1137-38; the Constitution.” Id. at see also compilation and in of information are not Borough Doe v. Barrington, F.Supp. protected privacy” within the “zones of be- (D.N.J.1990) (holding 382-85 that be public. cause the information is cause recognizes priva “[t]he Third Circuit a cy not agree We do with the State defendants medical records and medical infor mation,” dispositive family that our decision in E.B. of the members’ AIDS status was here, privacy presented issue protection). as there seems entitled ” life,’ recog- at аlso private 638 F.2d we infor right in record However, to con- right of an individual “the records. In nized that limited to medical mation is history is not Services, or his medical trol access to her General Administrator Nixon v. absolute,” are some and that there 455-65, id. at 433 U.S. interests, as health governmental such recognized the Court L.Ed.2d 867 concerns, “may support or other protected privacy had a President might individual otherwise access to facts an of the 42 million least some in at interest withhold,” followed that id. We by the choose to Presiden covered pages of documents case, we held that approach in a later where Preservation and Materials Recordings tial requested police a information private were the medical Act, among protected those be disclosed department questionnaire should the President and between communications directly to the interest advisors, it related distinguished because was family as selecting officers police department dealing with of records the millions from mentally capable of physically who were and official duties. business government Police, handling positions Similarly, Order in Fraternal Police, 812 applying. Fraternal Order prospective po officers and police held F.2d at 114. interests in certain had lice officers by police ques sought information financial justified disclosure of interest has Public tionnaire, from other noted cases and we categoriеs of information as well. See 812 F.2d that have so held. courts case, strong “the the same we stated that Gonzalez, 115; Plante v. see also avoiding corruption among public interest in Cir.1978) (5th (considering the 1132-36 designed per- assigned to a unit officers constitutionality disclosure laws of financial traditionally investigations in areas form officials); Slayton regulate elected cf. outweighs police of- susceptible corruption (10th Cir. Willingham, expectations in the fi- ficers’ limited 1984) plaintiff had a (stating that whether ques- ... sought nancial information photographs personal privacy interest tionnaire.” Id. at 116. legiti “he had depend on whether background, Ap the Court of Against this photos”). expectation mate upheld Washing peals for the Ninth Circuit narrowly interpreted Other courts have against Law ton state’s version protected. For ex type plaintiffs’ right the claim that it violated Appeals for Sixth ample, the Court of Gregoire, 124 F.3d privacy. to See Russell v. right prevent to Circuit has considered — (9th Cir.1997), denied, 1079, 1093-94 cert. information to be private the disclosure of -, L.Ed.2d 321 118 S.Ct. 140 U.S. right privacy to part of the constitutional (1998). Washington statute Significantly, the “implicate a fun only when disclosure pervasive than the one before us as was less interest,” liberty such as the inter damental only “general it authorized disclosure security bodily or preserving personal est in vicinity and not of the offender’s residence” Ribar, 683- integrity. Bloch v. Nonetheless, the court’s the exact address. Cir.1998). (6th Sundquist, v. 106 84 In Doe The court аnalysis relevant to this case. is — (6th Cir.), denied, cert. F.3d 702 right privacy “protect to to construed the -, L 16 it 118 S.Ct. Ed.2d information,” and noted that only personal adoption rejected that records the contention collected and dis most of information constitutionally are confidential. by Washington statute is al seminated ready and is not fully public available to the that is entitled to Even information Id. at 1094. constitutionally protected.” may nonetheless be sub privacy protection relating to permitted disclosure ject government’s in The court to disclosure when employment, be the offender’s residence and compelling. For exam terest in disclosure is available, publicly such Westinghm.se cause even if not ple, that althоugh we stated “generally considered information was not which the in medical information is “matter ” Id.; Kelley, v. see also Doe ‘private.’ within ordinarily dividual to retain entitled (W.D.Mich.1997) 1105, 1112 (denying may F.Supp. lead a ‘private where he enclave injunction Michigan’s preliminary a ver This issue was also considered in Paul v. Davis, “plaintiffs sion of Law because have heavily relied on opinion. E.B. legit failed to demonstrate existence of a Court argument privacy preventing imate interest in compila police that a chief published who a flier iden- of truthful tion and dissemination tifying plaintiff with a photograph as an already, conveniently, that albeit less shoplifter” “active plaintiffs “right violated record”). matter privacy.” New York’s ver 695-96, 424 U.S. at 96 S.Ct. sustained, sion of Law has also been 1155. The distinguished dealing eases opinion an that did not consider the with relating “matters marriage, procrea- Pataki, tion, issue. Doe contraception, family relationships, and — (2d Cir.1997), denied, U.S. -, cert. education,” child rearing and from the claims (1998). 1066, 140 L.Ed.2d 126 made Paul. Id. at 96 S.Ct. 1155. The court stated: The District Court here concluded that ‍​​‌​‌‌​​​‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​​​​‌​​‌​​‍Respondent’s claim is far afield from this plaintiffs’

there was no interest in the line of decisions. He claims addresses, “[bjecause constitutional stating home such protection against the disclosure of the fact public, plaintiffs’ privacy information is inter- of his arrest shoplifting on a charge. His implicated.” P., ests are not based, claim is upon any challenge not F.Supp. argument аt 966. As to the based ability the State’s to restrict his freedom of information, “compilation” on the of various sphere action in a “pri- contended to be “[i]t court held that is of little conse- vate,” but instead on a claim that the State quence whether this information is publicize not a record piecemeal disclosed or whether it is disclosed official act such as an None arrest. of our sub- compilation.” Id. at 967.

stantive any- decisions hold this, thing like enlarge we decline to the extent alleged To them in this manner. injury stems from the disclosure of their sex status, conjunction offender alone or in with added). (emphasis information, other the District opin Court’s ion is in line with cases in this court argue Plaintiffs that Paul v. Davis is holding specifically elsewhere inapposite that arrest merely because the Court was records interest, and related information are pro dealing with a reputational and not tected See they Fraternal of the interests assert here. It is Police, Order 812 F.2d at 117 (holding that rejecting true that argument “arrest records are not stake, entitled to liberty there was a interest at protection” because public); are Cline v. Court in Paul v. “reputation Davis held that (6th Cir.) Rogers, 87 (holding alone” does procedural not invoke the due “there is no constitutional priva process protections. 424 U.S. at cy in And, one’s criminal record” because “arrest S.Ct. 1155. recognize we that Paul v. and conviction information are preceded mаtters of Davis the Court’s decisions in — record”), denied, public -, cert. U.S. Whalen and Nixon steps which made further (1996). 117 S.Ct. 136 L.Ed.2d 400 development in the of the of Management Association, Trade Waste Slayton, Inc. (noting possible See 726 F.2d at 635 (3d Hughey, Cir.1985), v. this effect of plaintiff’s Whalen and Nixon on privacy court challenge discussed a to a stat claim based on personal “disclosure of mat requiring ute certain appli disclosures from damage reputa ters rather than mere to his tion”). permits. Nonetheless, cants for environmental We noted even if the interests privacy interest behind plaintiffs avoidance of dis preventing assert in the disclosure matter,” “personal closure of “per such as private information is somewhat different history,” sоnal medical reputational held that records than interest discussed in Davis, of criminal convictions pending criminal E.B. and in v. we can charges by “are public,” definition simply disregard language and there of the protected. fore not at rejecting privacy Court inter- information, arrests, is home address such as which fact that est in aside, privacy publicly records. be available” interests subject of official of the implicated the disclosure were argu insensitive to the are not along with the other informa- home address implicates plaintiffs’ that notification ment Poritz, 662 A.2d at 409. tion. N.J. by disclosing their home ad privacy interest Although dispositive, these cases are not compilation of home addresses The dresses. E.B., 23, they 119 F.3d at 1103 n. reflect see telephone directories widely in available general understanding that home ad- consensus that these ad a might suggest privacy protec- dresses are entitled to some private were it not considered dresses are tion, required by a statute. whether not so significant that a number the fact not for unwilling We are therefore to hold that ab- from officials and persons, ranging statute, person’s sent a home address is folk, ordinary just choose to performers privacy protection. never entitled to As the privately, because telephones list their Department Defense, per- in said private home addresses regard their sons in “have some nontrivial interest Indeed, supported their view infоrmation. nondisclosure_” 510 U.S. at home holding that addresses ‍​​‌​‌‌​​​‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​​​​‌​​‌​​‍are by decisions S.Ct. 1006. FOIA, under which ex entitled personal files “the dis Accepting plain- disclosure therefore the empts from claim clearly constitute a nontrivial in closure of which tiffs that there is some interest personal privacy.” by persons invasion unwarranted one’s home address who do not 552(b)(6). disclosed, Most of the cases § ad engage 5 U.S.C. wish it we must exemption FOIA concern the dressing balancing inquiry repeatedly appropri- held Labor Relations of the Federal interaction ate cases. employees’ claimed need ad Act and the significance The nature of the state bargaining purposes. In United dresses for by Megan’s interest served Law cоnsid- was FLRA, Department States of Defense There, ered in we stated the state E.B. 127 L.Ed.2d 325 U.S. 114 S.Ct. interest, compel- characterized as Supreme Court held that the Pri ling, justify deprivation “would suffice to vacy Act forbids disclosure federal regis- even if a fundamental agencies employee addresses to collective implicated.” trant’s 119 F.3d at thereby resolving bargaining representatives, disagree. no reason to We find among Compare the circuits. division knowing prior interest where sex Dep’t Defense, FLRA v. United States susceptible offenders individuals live so Cir.1992) (11th (“[Frequently appropriately can be cautioned does not dif- [home unavailable address] registrant’s fer the issue is the claim whether person genuine has made a ef bеcause the Jeopardy under the Double or Ex Post Facto private by get fort to the information keep — Clauses, registrant’s priva- or is the claim to telephone ting asking an unlisted number or Thus, concluded, cy. as the District Court lists.”), mailing to be from FLRA v. removed claim based on disclo- Navy, 966 F.2d Dep’t 758-59 sure of information must fail. Because we banc) Cir.1992) (en (finding privacy interest government’s preventing find the interest addresses FOIA names was under compelling, sex offenses we need not decide outweighed by union’s interest in communi degree whether the of effort needed to as- employees), cation to and United States dispersed in- semble otherwise available but FLRA, 1131,

Dep’t Navy v. 840 F.2d 1139 of ought formation to be considered as a factor (3d Cir.1988) (same), loith FLRA v. U.S. determining the reasonableness of an indi- Serv., Dep’t Treasury, Management Fin. of expectation of in the com- vidual’s (D.C.Cir.1989) 1446, 884 (barring 1456 piled data. disclosure). IV. primary argument Plaintiffs’ receives fur- support Jersey argument by plain ther raised from the New The other cases, Court claim that holding, relying part on FOIA that tiffs as of their

405 705-06, infringes upon their der. In Sundquist, notification 106 F.3d at family relationships. fundamental interest rejected court the claim that a statute that argument, concerns pressing In which permitted the adoption disclosure of records type protected the second of interest re- infringement effected an on “familial” or “re- 598-600, Whalen, 429 U.S. at 97 ferred to productive” privacy. The court noted that 869, rely precedent on the of plaintiffs S.Ct. when, directly regulate the statute did not Nebraska, Meyer v. cases such as 262 U.S. how, may adopted, whom a child 390, 399, 625, (1923), 43 S.Ct. 67 L.Ed. 1042 and infringe hence found that it upon did not 833, Casey, Planned Parenthood v. 505 U.S. right marry and raise children. Id. at 2791, 851, (1992), 112 S.Ct. 120 L.Ed.2d 674 Sisters, 510, Society and v. 268 Pierce of There are examples of decisions sus 534-35, 571, 1070 45 S.Ct. L.Ed. taining may indirectly statutes that influence recognize privacy protection ac- See, relationships. e.g., familial Harris v. relating marriage, pro- corded “matters McRae, 297, 2671, 448 U.S. 100 S.Ct. creation, contraception, family relationships, (1980) (holding government L.Ed.2d 784 that education,” Paul, rearing and and child infringe does not a fundamental in 713, U.S. at 96 S.Ct. 1155. we terest subsidizing childbirth but not abor recognized “impose[s] Law no tion); Roe, 464, Maher v. 432 U.S. 97 S.Ct. registrant’s ability on a restrictions to live (1977) (same); 53 L.Ed.2d 484 Murillo community,” and work in a E.B. 119 F.3d at Bambrick, 903-05 Cir. plaintiffs complain but that of the law’s 1982) (holding Jersey that New statute did “indirect effects: Actions that members of infringe privacy right fundamental community may take as a result of learn- imposing filing petitions); fee on divorce cf. ing registrant’s past, potential of dan- Williams, Dandridge v. 397 U.S. community,” ger, presence and his id. (1970) (holding L.Ed.2d 491 concede, did, Even if as the District Court Equal that state does not violate Protection “being subject Megan’s Law commu- by capping Clause grant amount of under nity places constitutionally cog- notification AFDC, size); regardless family id. at 520 upon relationships,” nizable strain familial J., (Douglas, n. 90 S.Ct. dissenting) P., F.Supp. these indirect analysis (refusing to base on claim that maxi- plaintiffs’ effects which follow from commis- grant regulation infringes mum fundamental substantially sion of are too a crime different right procreation “the effect because government from the actions at issue in the regulation ... upon right marginal ... prior penumbra cases to fall within the best”). put Megan’s and indirect at Law privacy protection. ‍​​‌​‌‌​​​‌​​‌​​‌‌​​‌‌‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​​​​‌​​‌​​‍Megan’s constitutional category. in the same Law does not restrict freedom of Finally, important emphasize it is that it respect action with to their families and trig- was the actions of the upon aspect therefore does not intrude gered right application Megan’s Law. protects Whenever individu- an individual commits a crime and is convict- independence making types al’s certain sentеnced, publicity ed important decisions. will necessar- ily impact family. have an on the offender’s a comparable We considered Concededly, registration Call, Morning Inc., claim in Scheetz v. The provisions Megan’s evoke more Law (3d Cir.1991), plaintiffs, where usual, publicity than is the conse- but that couple, complained newspa- married that a quence of the nature of the crime. We can- per’s police report of a disclosure of a violent not conclude that this indirect effect is a infringed domestic incident on their decision- violation of the autonomous decision branch right al to privacy because it chilled their of the constitutional counseling. to seek marital Id. at 207 Likewise, n. of Appeals for the V. recognized Sixth Circuit a distinction be- directly regulates During pendency appeal, matter a tween statute of this application may engen- the indirect appellants effects its filed a series of motions under all, this matter so that the seeking supplement to the dice and will remand seal, in six recent incidents plain- District Court can consider whether evidence record with serious adverse conse- assuring caused tiffs’ interest in information is which have In re- and their families. only particular to them have a quences disclosed to those who filed three Peter Verniero sponse, appellee adequate pro- for it has been accorded need supplement the record to further motions light tection in of the information set forth in government’s response with evidence the motions. light In of our incidents.

to such unfortunate above, to material is not relevant holding the VI. the issue before us— a determination above, For the reasons set forth we will provi- notification Megan’s Law’s whether granting affirm the District Court’s decision plaintiffs’ constitutional to violate sions summary judgment for the State defendants plaintiffs’ provi- on claim that the notification However, previously court has Megan’s sions of law violate their constitu- protected informa held that fact tional to as a matter law. party to a who has a tion must be disclosed However, light in of our conclusion that the strip not the particular for it ... doеs need subsequent material set forth in the motions against protection of its disclo by filed in this court should be considered need,” similar sure those who have no and instance, the District Court in the first government imple required the we have will this case to the remand District Court so safeguards against unneces adequate ment can file their motions and the Police, Order disclosure. Fraternal sary District Court can consider such material in these 118. Because motions 812 F.2d at light challenge ways plaintiffs’ to the instance, the first in this court in were filed being applied. law is opportuni not had the the District Court has ty the information contained to consider FULLAM, Judge, concurring. District to determine whether action therein and light precedent. of our appropriate Solely panel because we are bound the Verniero, in E.B. v. opinion note, example, at least one Cir.1997), majority’s disposi- I concur in the challenges scope the need for the motion ordered, appeal. great tion of this I do so with reluc- the a chal- tance, however, agree I because in all re- may light some merit in lenge that have spects dissenting opinion Judge with the Jersey decision on this issue. In recent New (now R.F., Becker in E.B. As the Judge) Chief Registrant re N.J.Super. (and, material 383-84, submitted us under seal (App.Div.1998), 722 A.2d indeed, the records in E.B. and other Court, report- Appellate Jersey Superior New Divi- cases) demonstrate, sion, ed the theoretical and Megan’s Law “it stated that under “feel-good” may benefits of Law prosecutor’s prove burden to clear run, long be overwhelmed only law’s convincing degree evidence negative consequences. enabling, Statutes by registrant’s presence of risk created perhaps encouraging, vigilantism even community, scope also the of notifica- harms, utterly similar seem at odds with necessary protect tion the members of Perhaps expanded constitutional values. community likely to encounter him.” The record in the district court on remand prosecutor required court establish to provide a basis for ameliorative measures. certainty that a Tier II a reasonable offender young children in was at “risk to attack

vicinity playgrounds” of their schools be sent to schools in

before notice could

community. A.2d at 543. deny

Although we will mo- supplement corresponding

tions to by Verniero,

motions preju- so without we do

Case Details

Case Name: Paul P. Ex Rel. Laura L. v. Verniero

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 16, 1999

Citation: 170 F.3d 396

Docket Number: 97-5791

Court Abbreviation: 3rd Cir.