On August 6, 2018, a three-judge appellate panel decided the Union County cases of In the Matter of Registrant G.H. and In the Matter of Registrant G.A. The principal issue before the Court was whether in enacting subsection (g) of the Megan’s Law statute in 2002, and prohibiting certain sex offenders from seeking termination of Megan’s Law notification requirements, the Legislature intended to apply the law retroactively. The Court held in relevant part as follows:
It is well-settled that statutes generally should be given prospective application. Retroactive application of new laws involves a high risk of being unfair. The preference for prospective application of new legislation ‘is based on our long-held notions of fairness and due process. It is presumed that provisions added by an amendment affecting substantive rights are intended to operate prospectively.
In deciding whether a statute could apply retroactively, we consider “whether the Legislature intended to give the statute retroactive application,” and “whether retroactive application of that statute will result in either an unconstitutional interference with vested rights or a manifest injustice. The Legislature’s intent may be expressed or implied. Implied retroactivity may be found from the statute’s operation when retroactive application is necessary to fulfill legislative intent.” An expression of legislative intent should be given effect absent a compelling reason not to do so.
Certainly, the Legislature did not explicitly provide that subsection (g) applied retroactively, i.e., to those convicted of sex offenses prior to 2002. Instead, the Legislature provided subsection (g) would be “effective immediately.” Such language ‘bespeaks an intent contrary to, and not supportive of, retroactive application.'”
The State correctly points out that the Legislature made subsection (g) applicable to any registrant who “has been convicted” of certain crimes, not to anyone who “is” or “hereafter is” convicted of those crimes. The Legislature’s use of the present perfect tense indicates subsection (g) applies to an action completed, although not at any definite time in the past. See In re Adoption of N.J.A.C. 71I (App. Div. 1996) (noting, “[g]rammatically, ‘has been located’ is the present perfect tense, which expresses an action completed by the present time, although when it was completed is not determined”); see also Barrett v. United States, 423 U.S. 212, 216 (1976) (observing that Congress used the present perfect tense to “denot[e] an act that has been completed”).
Another counter point to the State’s argument is that the Legislature almost never includes the language “hereafter is” in their penal statutes. Thus, if the State’s argument were accepted, it would mean that statutes are almost always given retroactive application. That is not the case. To the contrary, statutes are rarely given retroactive application.