Opinion
No. 96-6046
February 25, 1997
MEMORANDUM OF DECISION AND ORDER ON APPLICATION FOR PRELIMINARY INJUNCTION
Plaintiff John Doe seeks declaratory and injunctive relief from Chapter 239 of the Acts of 1996, entitled "An Act Relative to Sex Offender Registration and Community Notification" ("the Act"). The Act requires that persons adjudicated delinquent by reason of, or convicted of, sex offenses must register as sex offenders, and provides for public disclosure of information about them and their offenses. Plaintiff, adjudicated delinquent in 1986 for rape of a child, is subject to the Act. He challenges the constitutionality of the Act as it applies to him, and moves for a preliminary injunction barring disclosure of sex offender information pertaining to him. By agreement, plaintiff has registered on the condition that the information not be released to persons or entities outside the control of the Commonwealth pending disposition of this motion. For the reasons set forth below, plaintiff's motion for injunctive relief is denied.
Plaintiff, then sixteen years old, was charged with one count of being a delinquent child by reason of rape of a child in violation of G.L.c. 265, § 22A. Plaintiff admitted to facts sufficient to warrant a finding of delinquency, which the court entered. He served nine months probation.
Rape of a child under the age of sixteen is a "sex offense." § 178C.
DISCUSSION
I. BACKGROUND A. Preliminary Injunction
A preliminary injunction may issue where the moving party (1) has demonstrated that without the relief it would suffer irreparable harm, not capable of remediation by a final judgment in law or equity; (2) has demonstrated a likelihood that it would prevail on the merits of its claims at trial; and (3) has demonstrated that the risk of irreparable harm to it in light of its chances of success outweigh the defendant's probable harm and likelihood of prevailing. Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990); Packaging Industrial Group v. Cheney, 380 Mass. 609, 616-617 n. 10 (1980). Where the dispute is not between private parties, the Court should consider whether granting injunctive relief is consistent with the public interest. Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). The merits prong warrants particular attention. See Ashford v. Massachusetts Bay Transportation Authority, 421 Mass. 563, 564 n. 3 (1995) ("What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits"); Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993) ("In the ordinary course, plaintiffs who are unable to convince the trial court that they will probably succeed on the merits will not obtain interim injunctive relief").
Plaintiff challenges the Act, as applied to him, on three grounds: first, that it violates the constitutional guarantee against Ex Post Facto laws; second, that it violates prohibitions against Double Jeopardy; third, that it unconstitutionally restricts plaintiff's rights to due process and fundamental fairness.
B. The Regulatory Structure 1. Registration Requirement
The Act requires that all sex offenders furnish their local police departments with data regarding their offense and personal characteristics. G.L.c. 6, §§ 178E(h), 178D. Police then transmit the information to the state's Criminal History Systems Board ("Board") which forwards the data to police departments where the sex offender works and where the offense was committed, and to the Federal Bureau of Investigation. G.L.c. 6, § 178E(h). Offenders must appear in person at least once a year to verify the accuracy of the registration data. G.L.c. 6, § 178F. If an offender chooses to move or change jobs, he must notify the police of that change. G.L.c. 6, § 178E(e)-(f).
The offender must maintain the registration information for twenty years after the date of conviction or release, whichever is later. G.L.c. 6, § 178G. If the offender has committed a sex offense on more than one occasion, the requirement persists for the rest of the offender's life. Id. An offender may apply for termination of the registration requirement upon proof by clear and convincing evidence that the offender has not committed a sex crime for at least fifteen years and is not likely to pose a threat to the safety of others. Id. Failure to register or update the information is punishable by fine or imprisonment. G.L.c. 6, § 178H.
2. Notification Provision
The Act authorizes public disclosure of sex offender registration data according to the risk posed by the offender. Offenders are designated as level one (low risk of reoffense), level two (moderate risk) or level three (high risk). G.L.c. 6, § 178K(2). Level two and three offenders face a system of automatic disclosure to "organizations in the community . . . likely to encounter the offender;" level three offenders face additional disclosure to "individual members of the public . . . likely to encounter the offender." Id. Level two and three offenders may challenge their designation in a petition to the Superior Court. G.L.c. 6, § 178M.
The Act does not require that information regarding "level one" offenders be automatically disclosed. Instead, because the risk posed by such offenders is assessed as low, information is provided only when individuals inquire of the Board or their local police department about an identified person. G.L.c. 6, § 178K(2)(a).
II. EX POST FACTO AND DOUBLE JEOPARDY CHALLENGES A. Legal Landscape
Article I, section 10 of the United States Constitution prohibits the passage of any ex post facto law. The Ex Post Facto Clause is triggered when a law "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Opinion of the Justices, 423 Mass. 1201, 1224 (1996) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798)) (emphasis omitted).
The Double Jeopardy Clause, which appears in the Fifth Amendment to the United States Constitution, states that no person "shall . . . be subject for the same offence to be twice put in jeopardy of life and limb." The clause applies to both successive punishments and successive prosecutions. United States v. Ursery, 116 S. Ct. 2135, 2139 (1996).
Although separately located in the United States Constitution, the provisions share a common basis: their protection applies only if the State proposes to punish. In Ursery, the Supreme Court applied a two-stage test to determine whether government action (in that case, civil forfeitures in drug cases) constituted punishment, and so violated the Double Jeopardy Clause when coupled with criminal prosecution. First, Ursery examined whether Congress intended forfeiture to be a remedial civil sanction or a punitive criminal one. Id. at 2142, 2147. See also United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362-364 (1984). Second, Ursery focused on "`whether the statutory scheme [is] so punitive either in purpose or effect as to negate' Congress' intention to establish a civil remedial mechanism." Ursery, 116 S. Ct. at 2142, 2147 (citations omitted). In completing this analysis the Court examined various considerations such as the importance of nonpunitive goals and the historical characterization of the proceeding. Id. at 2148-2149.
Although some dispute exists as to whether the test to determine whether a statute is punitive properly relies on additional factors, the "intent-effect" mechanism expressly authorized by Ursery serves as the tool for analysis here. See Opinion of the Justices, supra at 1223-1224; John Doe v. William F. Weld, et. al., CA No. 96-11968-PBS at 17-18 (D. Mass. Dec. 17, 1996) (Saris, J.) (applying similar test).
Other courts examine a wider array of factors in determining the punitive nature of sex offender laws. Compare Roe v. Office of Adult Probation et al., 938 F. Supp. 1080, 1091-1093 (D. Conn. 1996) (applying seven factor test articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)); Doe v. Pataki, 940 F. Supp. 603, 620-630 (S.D.N.Y. 1996) (applying four-factor "intent, design, history, effects" test to examine sex offender registration law) with Artway v. Attorney General, 81 F.3d 1235, 1262-1263 (3d Cir. 1996) (describing Mendoza-Martinez factors as a "grab bag of individual tests" which are not dispositive nor controlling); W.P. v. Poritz, 931 F. Supp. 1199, 1208 (D.N.J. 1996) (holding that Ursery test controls punitive analysis of sex offender registration law and attacking Artway as conflicting).
B. Application of Ex Post Facto and Double Jeopardy Principles
Two aspects of the Act merit examination under the intent — effect test to determine the presence of punishment: the registration requirement and the disclosure provisions.
The Supreme Judicial Court has already addressed the issue of punishment as it relates to level two and three sex offenders. The Court concluded that the statutory requirements for community notification for level two and three sex offenders are not on their face "so severely burdensome relative to the urgency of this stated regulatory purpose that they must be counted as punishment." Opinion of the Justices, 423 Mass. at 1227. The Court did not consider whether the Act, as applied to level one offenders, was punitive in nature. The plaintiff here has not yet been classified by the board. Despite the nature of the offense (plaintiff admitted facts sufficient to find him delinquent by reason of rape of a child by use of force, in violation of G.L.c. 265, § 22A), plaintiff's apparent lack of any criminal record since the adjudication of his delinquency suggests that he may be classified as a level one offender. The Court proceeds on this assumption.
1. Intent
The legislative history of the Act contains a clear and explicit statement of legislative intent:
The stated legislative purpose of [Senate Bill No. 2276] is to protect the public from the "danger of recidivism posed by sex offenders" and to aid law enforcement officials in the apprehension of sex offenders by providing them with "additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation." The bill sets forth findings that "releasing information about sex offenders to law enforcement agencies and, under certain circumstances, to the public will further the primary governmental interest of protecting children and other vulnerable populations from potential harm." Finally, the bill proposes to bring Massachusetts in compliance with the Federal Crime Control Act.
Opinion of the Justices, supra at 1204.
A mere recitation of the formal intent of the legislature does not, however, constitute a sufficient review of legislative motives. "The intent must be examined both subjectively, i.e., the stated intent of the legislature, as well as objectively, i.e., whether, even assuming the stated intent is not to punish, any `punitive goals [are] necessarily implicated' or whether the law has `mixed objectives.'" Pataki, 940 F. Supp. at 621 (citations omitted). See also Dept. of Revenue of Montana v. Kurth Ranch, 114 S.Ct. 1937, 1945 (1994) ("[T]he legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character").
Here, the language quoted above demonstrates an intent to enact a remedial and regulatory statute, not a punitive one. Absent from the legislative history are statements evidencing an intention to punish or harm sex offenders. Compare the manner in which the New York Assembly discussed offenders and their rights during legislative debate of that state's proposed sex offender registration law. One New York legislator called pedophiles "animals". Pataki, 940 F. Supp. at 621. Another stated that "these people [pedophiles] have no rights." Id. at 622. A third called sex offenders "the human equivalent of toxic waste." Id. at 622. Massachusetts legislative transcripts reveal no such punitive rhetoric. Doe v. Weld, supra at 20. One Massachusetts legislator expressed concern for the effect of the sex offender law on juveniles. "We want juveniles punished but we also should give them the opportunity [to] become productive citizens. They have long lives. I hope we will make further attempts in this area." Id. at 19 (citing State House News Service, July 30, 1996 (statement of Rep. Paulsen)). The Act's inclusion of juveniles signals an intent to create broad coverage so that children and other vulnerable groups are protected from harm. Id. at 20 (citing H.R. 5949, at § 174A(2) (Mass. 1996) (Legislative Findings and Purpose)).
The Court concludes that the legislature intended to create a remedial, protective scheme and not further to punish or otherwise harm level one sex offenders. Cf. Opinion of the Justices, supra at 1227 (concluding purpose plainly regulatory that seeks to prevent harm). See U.S. v. Salerno, 481 U.S. 739, 747 (1987) ("[P]reventing danger to the community is a legitimate regulatory goal.").
2. Effect a. Registration Provisions
The effect of the registration requirement is not punitive. "Virtually every court that has considered the issue of whether registration is punishment for purposes of the Ex Post Facto Clause has held that it is not." Doe v. Weld, supra at 20-21 (quoting Pataki, 940 F. Supp. at 629). A sex offender in Massachusetts, as in other states, need only complete a standardized form by proffering general personal information. This form requires annual updating unless the offender moves or changes jobs. The requirement furthers the valid purposes of the Act by aiding law enforcement in protecting communities and enforcing the laws. Artway v. Attorney General, 81 F.3d 1235, 1264 (3d Cir. 1996). The requirement is an "essentially ministerial act of registration [that] does not restrain or inhibit the sex offender's activities in any significant way." Pataki, 940 F. Supp. at 630. See also Artway, 81 F.3d at 1267 (finding that registration "cannot be said to have an effect so draconian that it constitutes `punishment' in any way approaching incarceration."). A number of foreign sex offender registration requirements have passed similar scrutiny. Snyder v. State, 912 P.2d 1127, 1130-1131 (Wy. 1996) (no violation of ex post facto, cruel and unusual punishment, equal protection clauses); Kitze v. Commonwealth, 475 So.2d 830, 832-834 (Va.App. 1996) (similar); State v. Costello, 643 A.2d 531, 532-534 (N.H. 1994). But see State v. Payne, 633 So.2d 701 (La.Ct.App. 1993) (because registration requirement exposes defendant to potential criminal penalties for violating that requirement, the registration provision is unconstitutional under state and federal ex post facto provisions).
b. Notification Provisions
Plaintiff urges the Court to consider the Act punitive in light of reasoning articulated in Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996). Pataki, in examining the punitive nature of the New York statute, stated the following:
Finally, although defendants have articulated legitimate regulatory purposes for public notification, namely combating recidivism, aiding law enforcement, and protecting the public, the Act's public notification provisions have already led to excessively harsh results. Individuals who have been subjected to community notification provisions have been publicly ostracized. They have been threatened with physical harm. Their families have been harassed. They have lost their jobs. And their crimes have been featured in newspapers for all to see. One could argue, depending on the crime involved, that these individuals deserved this treatment. One cannot argue, however, that this treatment was necessary to serve the Act's stated goals. Hence, the effect of the public notification provisions is to punish.
Pataki, 919 F. Supp. at 701.
Pataki rightly points out dangers associated with disseminating information regarding sex offenders. Plaintiff may be forced to live under the stigma of his offense. Widespread knowledge of the offense could easily lead to harassment, discrimination, and retributive attacks against the offender.
Defendants here counter that "[i]t is pure conjecture whether any unintended disadvantages whatever would inure to a particular offender as a result of community notification." Defendant's Brief, at 14. To reach such a conclusion would ignore the significant anecdotal evidence regarding the potential punitive community response. Repeated incidents of abuse and attacks have occurred against sex offenders when their status as offenders was disseminated to the public. See Pataki, 940 F. Supp. at 608-11. Merely because one cannot claim with certainty that negative acts against an offender will occur does not mean that risk to the offender is entirely speculative.
However, the Massachusetts statute, as applied to the plaintiff here, is much less prone to create a climate of stigma than the New York provision. Plaintiffs in Pataki were classified as high-risk offenders; their personal information was aggressively distributed to the community. New York police are authorized to notify "any entity with vulnerable populations," an extraordinarily broad and vague mandate. Pataki, 940 F. Supp. at 607 (citing New York law). Further, the statute explicitly affirms that any entity may disclose or further disseminate such information, "at [its] discretion." Id.
The plaintiff here is at less risk of suffering public condemnation. Plaintiff is a level one, low risk offender, unlike the high risk parties in Pataki. Police officers will not actively distribute information about plaintiff; rather, individuals must identify plaintiff and must request sex offender information about him. Unlike New York, Massachusetts law does not explicitly authorize further dissemination (secondary transmission of information beyond police disclosure) of the sex offender data.
The distinctions between the respective risks of harm to offenders posed by the New York statute and the Act are important, but should not be overstated.
First, once offender information becomes available, the proverbial bell cannot be unrung. The flow of information after the initial disclosure cannot be controlled. "Although the sex offender label is not branded on an offender's forehead, under `Megan's Law,' it may cast a shadow over him." Doe v. Weld, supra at 25. The plaintiff may, especially within the confines of a small community, suffer greatly from the stigma of the offense. The stigma may persist even with the controls set forth under Massachusetts law.
Second, the absence of explicit legislative malice, like that found in New York, does not necessarily mean the absence of such malice. Legislators, noting court reactions to inflammatory remarks in other legislative debates, may have muted their remarks accordingly to minimize judicial intervention.
Third, statutory controls present in the Massachusetts statute (and absent in the New York statute) may have little practical effect. Massachusetts requires that individuals requesting information from police must state that they want the information to protect themselves or a child. It remains to be seen whether such a requirement is so broad as to permit almost anyone to obtain the information.
Overall, plaintiff will certainly live with some risk. However, the statute as written, combined with plaintiff's level one status, will likely result in minimal punitive effects against him.
At oral argument, plaintiff's counsel argued that the Act lacked adequate protections, and was unconstitutionally punitive, in its procedures for citizen requests for offender information.
Section 178I allows a citizen over age eighteen to receive information from the Board concerning a specific, identified person, simply by verifying the inquirer's age and identity. By contrast, § 178J provides that an inquirer must also verify that the information is requested "for his own protection or for the protection of a child under the age of eighteen or another person for whom said inquirer has responsibility, care or custody." The argument is that § 178I allows unfettered access to offender information without sufficient proof of the inquirer's need, and therefore serves no remedial purpose and is unconstitutionally punitive.
Section 178I provides for disclosure of limited information about individuals identified by the inquirer, i.e., whether an individual is a sex offender, the offenses for which he or she was convicted or adjudicated delinquent, and the dates of those convictions or adjudications. Section 178I also provides that, while records of inquiry shall be kept confidential, "the records may be disseminated to assist any criminal prosecution." An inquirer seeking information under § 178I must be able to specify a particular individual, and may have any number of legitimate reasons for inquiring, e.g., determining whether a prospective school employee, spouse, or baby sitter is an offender. Where an inquirer has no legitimate reason for discovering whether a specified person is an offender, the legislature has provided several measures to discourage misuse of such information: the inquirer is warned regarding the criminal penalties for illegal discrimination or harassment of an offender, and must identify himself or herself to the Board in writing, which record may be disclosed to assist "any criminal prosecution." Thus, an inquirer is on notice that misuse of the information may lead to sanctions.
Section 178J, by contrast, requires more of an inquirer in return for disclosure of more information about both specified and unspecified individuals. The inquirer must not only verify his or her age and identity, but must also affirm that the inquirer seeks the information for self-protection or for protection of one in his or her care. When the inquirer's purpose is thus limited, § 178J provides for disclosure not only of the information encompassed by § 178I, but also of the following information concerning either an identified individual, any sex offender living or working within a one mile radius of a specified address, or any sex offender living or working on a specific street: the offender's name, home and work address if located within the designated areas, age, sex, race, height, weight, eye and hair color, and photograph.
A Massachusetts federal district court judge has observed that "the interplay between §§ 178I and 178J is unclear," Doe v. Weld, supra at 24 n. 6. The Court must reconcile the two provisions, if it can, so that they will harmoniously further the legislative purpose. Doliner v. Planning Board of Millis, 343 Mass. 1, 5 (1961). Trial court judges who recently considered the issue came to different conclusions as to the constitutionality of § 178I. Compare Doe v. Weld, supra at 24 n. 6 (Saris, J.), with Johnny Doe v. Attorney General, CA No. 96-1349 and 96-1450, at 13-16 (Mass.Sup.Ct. Nov. 19, 1996) (Sweeney, J.). I conclude that the differences between the two sections demonstrate the differing remedial goals they are intended to serve, and that § 178I is not unconstitutionally punitive.
On balance, the Court concludes that plaintiff has failed to demonstrate that the disclosure provisions of the Act are punitive as applied to him, and that they therefore violate the Ex Post Facto or Double Jeopardy clauses.
III. PROCEDURAL DUE PROCESS AND OTHER CHALLENGES A. Procedural Due Process
Plaintiff contends that the Act violates his right to due process. Specifically, plaintiff argues that although level two and level three offenders may petition to the Superior Court for redetermination of their status, no provision allows a level one plaintiff to challenge whether he should register at all.
Plaintiff misconstrues the nature of the appellate provisions. The right of appeal is available only to change one's status within the sex offender levels. As Justice Sweeney stated in Johnny Doe v. Attorney General, supra at 7-8:
Presumably, the legislature did not provide such a right of appeal because the determination of whether a person is a sex offender under the Act is based solely on the specific crime(s) for which he was convicted. In other words, the Act provides that if a person has committed a specific crime enumerated in § 178C then that person is a sex offender and must register pursuant to § 178E(c)(d)(e)(f). . . .The language of § 178M is clear. The right of review granted to level two and three offenders is limited to judicial review of the risk designation not the basic registration requirement."
Thus, when appellate review is limited to redesignation of risk level, and plaintiff remains at the lowest level, no appellate review is possible.
Plaintiff also challenges the "retrospective application" of the statute to a past proceeding on the ground that those in his circumstances "could never be certain their punishments are finally over. . . ." Plaintiff's Brief at 10. Although publicity and stigma may result, the lifting of juvenile privacy protections does not trigger unconstitutionally punitive activity. In News Group Boston Inc., v. Commonwealth, 409 Mass. 627 (1991), the Court permitted public access to juvenile court proceedings concerning a murder charge. The News Group court stated that the "opening of a Juvenile Court proceeding to the public, thereby possibly stigmatizing the juvenile, is not . . . a punishment in a constitutional sense." Id. at 631. See also Collins v. Youngblood, 497 U.S. 37, 48-50 (1990); W.P. v. Poritz, 931 F. Supp. 1199, 1218 (D.N.J. 1996) (whether a statute's negative repercussions are great enough to be considered punishment "is a matter of degree") (internal quotations and citations omitted). Thus, the retroactive application of the sex offender statute does not constitute unconstitutionally punitive conduct.
B. Interaction With the Youthful Offender Act
Plaintiff contends that the Act, as applied to him, conflicts with St. 1996, c. 200, entitled "An Act to Provide for the Prosecution of Violent Juvenile Offenders in Criminal Courts of the Commonwealth" ("Youthful Offender Act"). Sections 6 and 9 of the Youthful Offender Act amended G.L.c. 119, §§ 60A and 65, respectively, by eliminating the confidentiality of proceedings involving children who are "youthful offenders," while retaining the confidentiality of proceedings involving delinquent children. Both that statute and the Act became effective on October 1, 1996. In Johnny Doe v. Attorney General, supra, the court examined the interaction between the two statutes, concluded that they were contemporaneous, id. at 21, and were conflicting, and ruled that the confidentiality accorded delinquency proceedings under the Youthful Offender Act was not undone by the Sex Offender Act:
A youthful offender is defined as "a person who is subject to an adult or juvenile sentence for having committed, while between the ages of fourteen and seventeen, an offense . . . which, if he were an adult, would be punishable by imprisonment in the state prison, and (a) has previously been committed to the department of youth services, or (b) has committed an offense which involves the infliction or threat of serious bodily harm . . ., or (c) has committed [specified weapons offenses]. . . ." G.L.c. 119, § 52.
The right to procedural due process, as guaranteed by the youthful offender act, is ostensibly eradicated by the sex offender law. The Commonwealth may not grant a privacy interest to delinquent children in their records, provide a means through the court to guard against the general dissemination of those records and then, by a conflicting but not superceding statute, attempt to eradicate the delinquent child's procedural due process rights.
Id. at 25.
I conclude that the Youthful Offender Act and the Sex Offender Act are not contemporaneous, that they are in direct conflict regarding confidentiality of delinquency proceedings, and that the earlier statute must give way to the later one. Morrison v. Lennett, 415 Mass. 857, 863 (1993) (new legislation alters existing law).
While both statutes became effective on the same day, the Youthful Offender Act was enacted on July 27, 1996, nine days before the Sex Offender Act. The time of enactment, rather than the time of placement into effect, establishes the time order of statutes. See McDonald v. Superior Court 299 Mass. 321, 324-325 (1938) ("[A] statute passed later but going into effect earlier than another statute dealing with the same subject reflects the latest legislative intent and will prevail over the other, which was passed earlier but went into effect later."). Thus, the Youthful Offender Act preceded the Sex Offender Act.
Interpreting the two Acts as sequential, rather than contemporaneous, accounts for the apparent intent of the legislature that confidentiality of juvenile proceedings be progressively narrowed or eliminated, but only as to specified offenses and offenders. Before either Act was in place, proceedings involving children charged with committing offenses were private, absent court order. The Youthful Offender Act eliminated privacy protection for youthful offenders, but left intact protection for delinquent children. G.L.c. 119, § 60A. Shortly thereafter, the Sex Offender Act eliminated — in varying degrees, depending on level of risk and nature of inquiry — privacy protection for all sex offenders, including juveniles. If the legislature can restrict privacy rights of some children through the Youthful Offender Act, as it clearly has, then it may also impose further restrictions through the Sex Offender Act. Delinquent children still hold privacy rights, but only to the extent their actions do not implicate sex offenses and thus trigger the Sex Offender Act. This interpretation maintains the validity of both Acts while fulfilling their statutory goals. See Labor Relations Commission v. Board of Selectmen of Dracut, 374 Mass. 619, 624 (1978) ("[S]tatutes must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose.").
IV. OTHER GROUNDS
Insofar as the Court concludes that plaintiff has demonstrated little chance of succeeding on the merits, consideration of the additional grounds for a preliminary injunction is unnecessary.
ORDER
For the reasons stated above, plaintiff's motion for preliminary injunction is DENIED. In light of the novelty of the issues raised, and the conflicting decision of another Justice of this court in a similar case, this order is STAYED until March 14, 1997, so that plaintiff may seek appellate review.
______________________________ Stephen E. Neel Justice of the Superior Court
DATED: February 25, 1997