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Artway v. Attorney General of State of N.J.

April 12, 1996

ALEXANDER A. ARTWAY

v.

THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE ATTORNEY GENERAL OF NEW JERSEY AND SUPERINTENDENT OF THE NEW JERSEY STATE POLICE, APPELLANTS IN NO. 95-5157 ALEXANDER A. ARTWAY

v.

THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY APPELLANT IN NO. 95-5194 ALEXANDER A. ARTWAY

v.

THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY; THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE ALEXANDER A. ARTWAY, APPELLANT IN NO. 95-5195



(Civ. No. 94-cv-06287)

On Appeal From the United States District Court For the District of New Jersey

Present: BECKER, ROTH, Circuit Judges, and SHADUR, District Judge *fn*

BECKER, Circuit Judge.

Argued: October 17, 1995

Opinion Filed: April 12, l996)

OPINION OF THE COURT

Alexander Artway thought that he had paid his debt to society by serving seventeen years in jail for a sex offense. After he was released, Artway settled in a community, secured employment, and married. Then, on October 31, 1994, New Jersey enacted Megan's Law. The Law requires certain sex offenders -- including those like Artway found at sentencing to be "repetitive and compulsive" -- to register with local law enforcement. It also requires community notification for registrants deemed a future risk. Artway sought an injunction against the enforcement of Megan's Law pursuant to 28 U.S.C. Section(s) 2201 and 42 U.S.C. Section(s) 1983, arguing that it punishes him, unconstitutionally, a second time. He also alleged that the Law provides insufficient procedural protections.

After summary proceedings in which no evidence was heard and virtually no factual record developed, the District Court for the District of New Jersey held that the notification aspects of Megan's Law violated the Ex Post Facto Clause of the United States Constitution and enjoined their enforcement against Artway. The court upheld the constitutionality of the Law's registration component. Both sides appealed.

These cross appeals present numerous questions (some of which are quite difficult): (1) Do the registration and notification provisions of Megan's Law constitute "punishment" within the meaning of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses of the U.S. Constitution? (2) Is Megan's Law unconstitutionally vague? (3) Does Megan's Law violate equal protection or due process? (4) Are any or all of Artway's claims unripe or moot? and (5) Was the district court's decision not to abstain under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941), proper? Timing is important not only to punishment, but also to proper judicial decisionmaking. Although we reject the State's contention that Artway's claims are moot because he has moved from New Jersey, ripeness problems preclude us from reaching the lion's share of Artway's claims. First, Artway's claims that Megan's Law's notification provisions violate the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses are unripe. Sex offenders are subject to notification only if the prosecutor finds a significant risk of recidivism -- a determination that, with respect to Artway, has not yet been made and cannot be easily forecasted. It is far from clear, therefore, that Artway will ever be subject to notification. Moreover, we cannot make the novel, difficult, and fact-sensitive determination whether the notification provisions constitute "punishment" -- the central question under all three clauses -- without a record of how notification will be implemented and what concrete effects it will have on Artway (or those similarly situated). Although Artway's contention that notification constitutes punishment is prima facie quite persuasive, the claim will be fit for judicial review only when Artway (or some other sex offender) submits to the notification process and the impact is chronicled in the record. Similarly, since Artway has not yet been classified under Megan's Law, his claim that he is due more process for receiving notice of and challenging a hypothetical determination regarding his dangerousness is unripe.

With regard to Artway's claims that are currently justiciable, we hold first that Megan's Law's registration component does not violate the Ex Post Facto, Double Jeopardy, or Bill of Attainder Clauses as impermissible "punishment." As the following discussion will show, the law on "punishment" is complicated and in some disarray. We devote a significant portion of this opinion, therefore, to explaining and synthesizing caselaw on the "punishment" issue in order to formulate the correct legal test.

We also hold that (1) the "repetitive and compulsive" classification of Megan's Law does not offend equal protection; (2) the alleged unreliability and unfairness of Artway's "repetitive and compulsive" determination does not violate due process; (3) Megan's Law is not unconstitutionally vague as applied to him; and (4) the district court did not err in refusing to abstain under Pullman.

We therefore vacate the judgment of the district court insofar as it enjoins the enforcement of Tier 2 and Tier 3 notification under Megan's Law, and affirm that judgment insofar as it holds the registration provisions (including Tier 1 notification) of the Law constitutional.

I. BACKGROUND FACTS

In 1971, a New Jersey jury convicted Artway of sodomy. The statutory elements of Artway's crime did not require force, but the judge found that he had used violence and, as a result, sentenced him to an indefinite term in prison. See Artway v. Pallone, 672 F.2d 1168, 1170-71 & n.3 (3d Cir. 1982). *fn1 In addition, based in part on a prior statutory rape conviction, the judge made a finding for sentencing purposes that Artway's conduct was "characterized by a pattern of repetitive, compulsive behavior." See id. After serving seventeen years of the sentence, Artway was released in 1992 (he had been a fugitive from 1971 to 1975).

In 1994, the New Jersey legislature enacted Megan's Law -- formally the New Jersey's Sexual Offender Registration Act, Pub. L. 1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11) -- in response to public outcry following the brutal rape and murder of a seven-year-old girl, Megan Kanka. Megan, her parents, and the community did not know that the murderer, who lived across the street from the Kankas, was a twice-convicted sex offender. The legislation was rushed to the floor as an emergency measure, skipping the committee process, and was debated only on the floor; no member voted against it.

Megan's Law enacts a registration requirement and three tiers of notification. The registration provision requires all persons who complete a sentence for certain designated crimes involving sexual assault after Megan's Law was enacted to register with local law enforcement. N.J.S.A. 2C:7-2b(1). Those committing these offenses and completing all incarceration, probation, and parole before the Law's enactment must register only if, at the time of sentencing, their conduct was found to be "characterized by a pattern of repetitive and compulsive behavior." N.J.S.A. 2C:7-2b(1).

The registrant must provide the following information to the chief law enforcement officer of the municipality in which he resides: name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary legal residence, and date and place of employment. N.J.S.A. 2C:7-4b(1). He must confirm his address every ninety days, notify the municipal law enforcement agency if he moves, and re-register with the law enforcement agency of any new municipality. N.J.S.A. 2C:7-2d to e.

The registration agency then forwards the registrant's information, as well as any additional information it may have, to the prosecutor of the county that prosecuted the registrant. N.J.S.A. 2C:7-4c to d. The prosecutor, in turn, forwards the information to the Division of State Police, which incorporates it into a central registry and notifies the prosecutor of the county in which the registrant plans to reside. Id. This information is available to law enforcement agencies of New Jersey, other states, and the United States. N.J.S.A. 2C:7-5. The registration information is not open to public inspection. Law enforcement agencies are authorized to release "relevant and necessary information concerning registrants when . . . necessary for public protection," but only in accordance with the notification procedures we describe below. Failure of the sex offender to comply with registration is a fourth-degree crime. N.J.S.A. 2C:7-5.

At this stage, the notification provisions are triggered. The prosecutor of the county in which the registrant plans to live must consider the information provided through registration and, in consultation with the prosecutor of the convicting county, determine whether the registrant poses a low, moderate, or high risk of reoffense. N.J.S.A. 2C:7-8d(1). In making that determination, the prosecutor must consider guidelines the Attorney General has promulgated pursuant to the Act. N.J.S.A. 2C:7-8a to b.

The determination of risk as low, moderate, or high places the registrant in corresponding notification categories: Tier 1, Tier 2, or Tier 3. Under Tier 1 (low risk), the prosecutor must notify law enforcement agencies likely to encounter the registrant. N.J.S.A. 2C:7-8c(1). Under Tier 2 (moderate risk), the prosecutor, working with local law enforcement agencies, must notify schools, licensed day care centers, summer camps, and designated community organizations involved in the care of children or the support of battered women or rape victims. N.J.S.A. 2C:7-8c(2). Under Tier 3 (high risk), law enforcement agencies are required to notify members of the public likely to encounter the registrant. N.J.S.A. 2C:7-8c(3).

The prosecutor makes this future risk determination using the "Registrant Risk Assessment Scale," promulgated by the Attorney General. See Registration and Community Notification Bench Manual 26. The Scale is a matrix of thirteen categories organized into four larger headings: (1) Seriousness of Offense; (2) Offense History; (3) Characteristics of the Offender; and (4) Community Support. Id. *fn2 The prosecutor scores each of these categories for different levels of risk -- low, moderate, or high. Id. In doing so, he or she is guided by commentary that includes factual examples. Id. at 17-25. This initial risk score is multiplied by coefficients that differ by category, and the data is tabulated for a final risk assessment score. Id. at 26. Finally, the prosecutor must consider whether two exceptions apply. "If an offender has indicated that he will reoffend if released into the community and the available record reveals credible evidence to support this finding, then the offender will be deemed a high risk . . . ." Id. at 16. Conversely, "if the offender demonstrates a physical condition that minimizes the risk of reoffense, then the offender will be deemed to be a low risk." Id.

The form of notification under Tiers 2 and 3 includes the registrant's name, a recent photograph, his physical description, offense, address, place of employment or schooling, and a description and license plate number of the registrant's vehicle. Id. at 39. Those notified under Tier 2 are informed that the information is not to be shared with the general public, and every notification must contain a warning about the criminal consequences of vandalism, threats and assaults against the registrant or any of his associates. Id. at 40.

The New Jersey Supreme Court, in upholding the constitutionality of Megan's Law in Doe v. Poritz, 142 N.J. 1 (1995), read the following additional procedural protections into the statute. First, Tier 2 notice must be confined to those likely to encounter the registrant. Id. at 29. Second, the prosecutor must give the registrant notice, unless "impossible as a practical matter," before any Tier 2 or 3 notification. Id. at 30-31. Third, a court must provide an opportunity for a judicial hearing, in camera, in which the registrant bears the burden of persuasion. Id. at 31-32.

Because every registrant is classified at a minimum under Tier 1, this lowest level of notification accompanies every registration. Tier 1 requires notice only to law enforcement, whereas Tier 2 and Tier 3 both result in notice to the community. Consequently, for purposes of the subsequent discussion, "registration" will include registration and Tier 1 notification, while "notification" will refer to Tier 2 and Tier 3 notification.

II. PROCEDURAL HISTORY

Artway sought declaratory relief, pursuant to 28 U.S.C. Section(s) 2201 and 42 U.S.C. Section(s) 1983, alleging that enforcement of Megan's Law against him would violate his federal constitutional rights, including equal protection, due process, and the right not to be punished in violation of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses. The district court decided the case in the most summary fashion. After the State moved to dismiss Artway's motion for injunctive relief, Artway urged the district court to construe his original motion as one for summary judgment. The court obliged. It allowed no discovery, heard no testimony, and made no findings of fact. Instead, it ruled as a matter of law on all the complex issues pending before it.

The court opened its opinion by brushing aside a ripeness challenge to Artway's claims. The court then held that the registration component of Megan's Law was constitutional, but that Tier 2 and Tier 3 notification violated the Ex Post Facto Clause. In doing so, it treated this case as an abstract issue of law. The court recited caselaw on the Ex Post Facto, Cruel and Unusual Punishment, Bill of Attainder, and Double Jeopardy Clauses. It also invoked state court cases, and, as might be expected, it discussed the Scarlet Letter. *fn3 The resulting record contains only one piece of information describing the indirect effects of Megan's Law on Artway: a copy of a Guardian Angel flier distributed in Artway's community warning people to "BEWARE." *fn4

But even that evidence is not discussed in the district court's opinion. Instead, the court asserted that the registration component of Megan's Law is constitutional "for the reasons expressed in Arizona v. Noble, [829 P.2d 1217 (Ariz. 1992)]." Artway v. Attorney General, 876 F. Supp. 666, 688 (D.N.J. 1995). It then invalidated the notification provisions of Megan's Law using the seven-factor test for punishment of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). The court enjoined New Jersey, at first preliminarily and then permanently, from enforcing the notification provisions of Megan's Law. It did not reach Artway's other arguments, such as the Due Process and Equal Protection challenges he presses before this Court.

Artway appeals the district court's ruling that registration and Tier 1 notification are constitutional, and presses his Due Process and Equal Protection arguments should this Court find Tier 2 and Tier 3 constitutional. The State appeals the district court's holding that Tier 2 and Tier 3 are unconstitutional. At this juncture, these issues all present legal questions, subject to plenary review. *fn5 See American Medical Imaging Corp. v. St. Paul Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir. 1991).

III. MOOTNESS

As a threshold matter, we reject the State's assertions that Artway's appeal is moot because he has moved out of New Jersey. Artway no longer has a live claim, the State argues, because his move from New Jersey voided his duty to register. The State points us to Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in which the Supreme Court held that environmentalists did not have injury in fact because they could not show any concrete evidence, such as a plane ticket, of their intent to return to the foreign country where the challenged environmental action would take place. Like the environmentalists in Lujan, New Jersey argues, Artway's "bald assertion that he intends to return to New Jersey . . . rests on conjecture and is entirely hypothetical." But if the record is clear on nothing else, it shows that Artway's obligation to register is keeping him from returning to New Jersey, and that situation presents a real controversy. The litigants in Lujan merely opined that they planned to visit the site, in a foreign country, "some day" in the future. 504 U.S. at 564 & n.2. Artway, in contrast, lived in New Jersey -- where he established a home, a family, and a job -- until March 3, 1995. He left shortly after Megan's Law was passed and has sworn that Megan's Law is keeping him from moving back. Indeed, he brought this litigation, originally pro se, in order to return there. Artway cannot live in New Jersey without either complying with Megan's Law, which undoubtedly burdens him, or facing prosecution. Especially given the constitutional right to move interstate, see Shapiro v. Thompson, 394 U.S. 618 (1969), this Hobson's choice constitutes sufficient injury in fact even under Lujan's standing analysis.

In addition to being factually different from Lujan, the State's mootness claim is legally different from that case. Lujan addressed standing, which inquires whether someone is the proper party to bring a law suit at the beginning of the case. Doctrinally, to satisfy core Article III requirements, standing requires (1) that the plaintiff suffer injury in fact, (2) that the injury be fairly traceable to the challenged conduct, and (3) that a favorable ruling would redress the injury. See Lujan, 504 U.S. at 560-61. Mootness, on the other hand, asks whether a party who has established standing has now lost it because the facts of her case have changed over time. Thus, the threshold for satisfying the prohibition against mootness is somewhat lower than that for standing. "[T]he central question in mootness inquiries is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief." Huber v. Casablanca Indus., Inc., 916 F.2d 85, 107 (3d Cir. 1990) (internal quotations omitted), overruled on other grounds by Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co., 115 S. Ct. 981 (1995); accord Zellous v. Broadhead Associates, 906 F.2d 94, 100 (3d Cir. 1990) ("An action becomes moot when '(1) there is no reasonable expectation that the alleged events will recur . . . and (2) interim relief or events have completely eradicated the effects of the violation.'") (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). *fn6

The opportunity for meaningful relief is still present here. Artway ceased the activity which unquestionably granted him standing -- living in New Jersey -- only upon threats of enforcement. And he has sworn to his desire to return if Megan's Law is invalidated. Cf. Begins v. Phillbrook, 513 F.2d 19, 24 (1975) (holding case not moot even though plaintiffs sold second automobile on threats of benefit termination when they demonstrated continuing desire to own two cars).

IV. RIPENESS

A. Introduction

We next examine the State's assertions that Artway's ex post facto, double jeopardy, bill of attainder, and due process challenges are not ripe. Article III, as part of its "case or controversy" mandate, requires parties to suffer injury or come into immediate danger of suffering an injury before challenging a statute. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974). The basic rationale of the ripeness requirement is "to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Ripeness prevents courts from interference with legislative enactments until it is necessary to do so, and enhances the quality of judicial decisionmaking by ensuring that cases present courts an adequate record to permit effective review and decisionmaking. See id. Ripeness involves weighing two factors: (1) the hardship to the parties of withholding court consideration; and (2) the fitness of the issues for judicial review. See 387 U.S. at 149. *fn7

B. The Ex Post Facto, Bill of Attainder, and Double Jeopardy Challenges

Artway contends that Megan's Law imposes unconstitutional punishment under the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses. Under the Ex Post Facto Clause, the government may not apply a law retroactively that "inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). Under the Bill of Attainder Clause, legislatures are forbidden to engage in "[l]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." United States v. Brown, 381 U.S. 437, 448-49 (1965). Finally, the Double Jeopardy Clause prohibits, inter alia, "a second prosecution for the same offense after conviction . . . and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440 (1989).

The crux of Artway's argument is that Megan's Law imposes unconstitutional "punishment." In analyzing the ripeness of these challenges, we must carefully distinguish between the registration and notification provisions of Megan's Law. We shall not, however, distinguish among the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses; their differences with respect to the requisites of "punishment," if any, are not relevant here.

1. Hardship of Denying Review

The first factor for determining ripeness is the hardship of denying review. Abbott Labs., 387 U.S. at 149. The district court considered this factor, but failed to distinguish between the registration and notification aspects of Megan's Law. The hardship factor inquires whether the threat of prosecution is "credible," and not merely "speculative," so as to be concrete for purposes of Article III. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Although preenforcement review is the exception rather than the rule, "[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Id. (internal quotations omitted); accord Steffel v. Thompson, 415 U.S. 452, 459 (1974) ("[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute he claims deters the exercise of his constitutional rights."); Abbott Labs., 387 U.S. at 154 (holding a business's challenge to a labeling statute ripe even though the company had not been threatened specifically with prosecution).

This Court has afforded review even when the state has taken no active measures toward prosecution. For example, in Presbytery of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454 (3d Cir. 1994), we held that a church pastor's preenforcement challenge to New Jersey's anti-discrimination law was ripe for adjudication when the pastor had announced his intention to speak against homosexuality even though the government had not actually threatened to prosecute. That the state would not disavow the possibility of prosecution for activities outside the church was enough to make the threat "real and substantial." Id. at 1468.

On the other hand, "[m]any cases deny ripeness on the straight-forward ground that the anticipated events and injury are simply too remote and uncertain to justify present adjudication." 13A Charles A. Wright et al., Federal Practice and Procedure Section(s) 3532.2, at 138 (1984). A substantial contingency is the classic impediment to a preenforcement challenge. For example, in New Hanover Tp. v. United States Army Corps of Engineers, 992 F.2d 470, 473 (3d Cir. 1993), we held that a challenge to construction of a municipal waste landfill was unripe because the state had not yet granted a necessary water quality certificate. Although the Army Corps of Engineers had granted another permit that the plaintiffs sought to challenge, we explained, construction of the landfill still could not commence: "[T]he effects of the Corps' deciding that [the project] may proceed . . . will not be felt in a concrete way unless and until the [state] grants [the project] a water quality certificate." Id.; see also Acierno v. Mitchell, 6 F.3d 970, 975-77 (3d Cir. 1993) (holding challenge to zoning decision unripe when review board had not yet made final decision); Wilmington Firefighters Local 1590, Int'l Ass'n of Firefighters v. City of Wilmington, Fire Dept., 824 F.2d 262, 266 (3d Cir. 1987) (holding challenge to yet uncreated promotion lists unripe because they were "purely a matter of conjecture").

Artway urges that both the registration and notification components of Megan's Law constitute unconstitutional "punishment" under the Ex Post Facto, Double Jeopardy, and Bill of Attainder Clauses. Artway's challenge to the registration provisions of Megan's Law satisfies the hardship prong. Like the petitioners in Babbitt, Steffell, Abbott Labs. and Florio, he faces the decision of complying with a putatively invalid law or suffering prosecution. Registration presents no contingency for Artway. If he resides in New Jersey, he must provide certain information to local law enforcement. And the high profile of Megan's Law, and Artway's case in particular, virtually assures that Artway will be prosecuted if he engages in his allegedly protected conduct: returning to New Jersey without registering. In fact, the Attorney General assured the district court at oral argument that she would prosecute Artway if he failed to register. See Artway v. Attorney General, 876 F. Supp. 666, 670 n.4 (D.N.J. 1995). Under these circumstances, the threat of prosecution Artway faces satisfies any test of the Supreme Court and of this Court: these threats are credible, real, and substantial.

In sharp contrast, Artway's challenge to the notification provisions of Megan's Law fails this prong. Unlike registration, notification involves a crucial contingency: only if, after registering, Artway is classified as a moderate or high risk of reoffense will he face notification. This classification hinges on a New Jersey prosecutor's future decision to be reached after applying the Attorney General's "Registrant Risk Assessment Scale." See supra pages 12-13. The State prosecutor, possessing the pertinent information not present in this record, scores these thirteen categories for different levels of risk, employing the corresponding eleven pages of guidelines. The prosecutor then multiplies by differing coefficients, tabulates the data for a risk assessment score, and considers whether exceptions apply.

As in New Hanover Township, Acierno, and Wilmington Firefighters, whether this contingency will ever come to pass is a matter of speculation. We may not pass upon hypothetical matters. And Artway faces no hardship from denying review of his notification challenges at this point. If he registers, and if the State decides that his situation warrants community notification, he may seek to enjoin that action at that time. Thus, the "hardship" factor alone precludes review of Artway's notification claims. *fn8

2. Fitness of Issues for Judicial Review

The second factor for evaluating ripeness, this one never mentioned by the district court, is whether the issues are fit for judicial review. Abbott Labs., 387 U.S. at 149. In making this determination, we must once again distinguish between the registration component of Megan's Law on the one hand, and the notification provisions on the other. The principal consideration is whether the record is factually adequate to enable the court to make the necessary legal determinations. The more that the question presented is purely one of law, and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa. Compare Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81-82 (1978) ("Although it is true that no nuclear accident has occurred and that such an occurrence would eliminate much of the existing scientific uncertainty surrounding this subject, it would not, in our view, significantly advance our ability to deal with the legal issues presented nor aid us in their resolution.") with Zemel v. Rusk, 381 U.S. 1, 20 (1965) ("[I]f we are to avoid rendering a series of advisory opinions, adjudication of the reach and constitutionality of [a statute under which the President prohibited travel to Cuba] must await a concrete fact situation.").

Courts are particularly vigilant to ensure that cases are ripe when constitutional questions are at issue. See Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 81 (1961) (holding unripe an ex post facto challenge to Corrupt Practices Act especially in light of the rule to avoid unnecessary constitutional decisions). Indeed, the Supreme Court has held a constitutional challenge unripe because of the need for more detailed factual information in the record "[e]ven though the challenged statute is sure to work the injury alleged." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 300 (1979).

Two Supreme Court cases illustrate the need for factual information particularly well. In Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972), the Court dismissed as unripe a challenge on First Amendment grounds to a state law that required candidates to swear not to attempt to overthrow the government by violence or force. The Court concluded that "the record . . . is extraordinarily skimpy in the sort of proved or admitted facts that would enable us to adjudicate this claim." Id. at 587. Even assuming the plaintiffs had standing to challenge the law, the Court continued, "their case has not given any particularity to the effect on them of Ohio's affidavit requirement." Id. at 588. In California Banker's Association v. Schultz, 416 U.S. 21 (1974), the Court similarly declared unripe a First Amendment challenge to bank record-keeping and reporting requirements because of an insufficient factual record. Id. at 56. "This Court, in the absence of a concrete fact situation in which competing associational and governmental interests can be weighed, is simply not in a position to determine whether an effort to compel disclosure of such records would or would not be barred . . . ." Id.

Megan's Law's registration provisions require simply that Artway register and provide information to the local prosecutor, who in turn may provide the information only to local law enforcement agents. No private individuals or other organizations may receive this information. Registration, therefore, involves few variables in its operation. As in Duke Power, the issue is primarily one of law and further factual information will provide little assistance. Under these circumstances, we are confident that Artway's registration challenge is fit for judicial review.

The notification procedures, on the other hand, involve dissemination of potentially devastating information to undetermined numbers of private citizens. Because these private citizens are not part of the trained state law enforcement mechanism, we are less certain how they will react. For instance, the one study in the record chronicles a number of incidents of harassment at the hands of private citizens as a result of the State of Washington's notification law, but records no incidents on the part of law enforcement. We also lack concrete record evidence about what Artway's future dangerousness classification will be, on what facts this classification will be determined, and who will be notified. *fn9

Because Artway has not submitted to these procedures, and because the district court decided this case without admitting any appreciable evidence, we have almost no factual grounding on which to make an assessment about notification as applied to Artway. The record contains two pieces of data: a flier distributed by the Guardian Angels warning Woodbridge residents to "BEWARE" and the brief State of Washington report describing the effects of a different law in that jurisdiction. *fn10 While the tenor of the flier and the results of the study are worrisome indeed, they are but snippets compared to a developed record. Consistent with the basic principles of Gilligan, Schultz et alia, we cannot make complex and important determinations in a factual vacuum.

Moreover, the constitutionality of the notification provisions of Megan's Law may well turn on the most careful parsing of the Supreme Court's rulings on "punishment." Not only must we decide whether a multifaceted and novel *fn11 regulatory scheme violates constitutional safeguards, we must also discern the parameters of these safeguards themselves. As the discussion in Part V infra reveals, the law in ...


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