RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1030-13T2
APPROVED FOR PUBLICATION
STATE OF NEW JERSEY June 5, 2014
IN THE INTEREST OF
Y.C. APPELLATE DIVISION
________________________
Argued May 13, 2014 – Decided June 5, 2014
Before Judges Reisner, Ostrer and Carroll.
On appeal from the State of New Jersey, New
Jersey Juvenile Justice Commission and
Department of Corrections.
Laura Cohen argued the cause for appellant
Y.C. (Rutgers Criminal and Youth Justice
Clinic, attorneys; Ms. Cohen, on the brief).
Joseph M. Micheletti, Deputy Attorney
General, argued the cause for respondent New
Jersey Juvenile Justice Commission and
Department of Corrections (John J. Hoffman,
Acting Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Alex J. Zowin, Deputy Attorney General, on
the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
This case is a sequel to State of New Jersey in the
Interest of J.J., 427 N.J. Super. 541 (App. Div. 2012), in which
we invalidated the Juvenile Justice Commission's then-existing
regulations for transferring juveniles to adult facilities run
by the Department of Corrections (DOC), and directed the agency
to adopt new regulations. Id. at 558; see N.J.A.C. 13:91-2.1.
In this appeal, Y.C., who was adjudicated delinquent as a
juvenile and sentenced to the custody of the Juvenile Justice
Commission (JJC or agency) for a term of six years, challenges a
determination of the JJC transferring him to an adult prison.1
We conclude that the agency's adoption of an "interim policy" on
transfers did not comply with our direction in J.J., or with the
Administrative Procedures Act (APA), N.J.S.A. 52:14B-4. See
N.J.S.A. 52:14B-4(d) ("No rule hereafter adopted is valid unless
adopted in substantial compliance" with the APA). We remand
this matter to the JJC for a new transfer hearing, which shall
be held before the Office of Administrative Law (OAL) on an
expedited basis. We also direct the agency to adopt new
regulations within 180 days.
I
By way of background, in 1995, the Legislature authorized
the JJC to transfer to adult prisons certain juveniles who met
criteria set forth in the statute:
The commission and the Commissioner of the
Department of Corrections shall, consistent
with applicable State and federal standards,
1
On October 29, 2013, we denied a stay of the transfer but
accelerated this appeal.
2 A-1030-13T2
formulate a plan setting forth procedures
for transferring custody of any juvenile
incarcerated in a juvenile facility who has
reached the age of 16 during confinement and
whose continued presence in the juvenile
facility threatens the public safety, the
safety of juvenile offenders, or the ability
of the commission to operate the program in
the manner intended.
[N.J.S.A. 52:17B-175(e) (emphasis added).]
The Legislature further directed the JJC and the DOC to "jointly
adopt regulations pursuant to the [APA], establishing the
procedures included in the plan." Ibid.
As we noted in J.J., the agencies adopted regulations,
N.J.A.C. 13:91-2.1, that provided no procedural due process for
a juvenile facing transfer. The State contended that none was
required. J.J., supra, 427 N.J. Super. at 543. We disagreed,
finding that the regulation was invalid:
Because N.J.A.C. 13:91-2.1 provides no due
process rights to the juvenile as part of
the transfer process, we hold that it is
invalid. It does not comply with the
statutory requirement that the transfer
procedures be "consistent with applicable
state and federal standards," particularly
the juvenile's rights to due process. U.S.
Const. amend. XIV; see Greenberg v.
Kimmelman, 99 N.J. 552, 568 (1985) (Article
I, Paragraph 1 of the New Jersey
Constitution "safeguards values like those
encompassed by the principles of due process
and equal protection.").
[Id. at 558.]
3 A-1030-13T2
We rejected J.J.'s alternate arguments that the transfer
decision should be made by a Family Part judge, and that he
could not be transferred to an adult prison unless he had a
right to a jury trial in the delinquency adjudication. Id. at
553, 557. However, we concluded that, "[a]t a minimum," the JJC
must provide a juvenile with the following due process
protections:
[B]efore a juvenile can be transferred to
custody of the DOC, there must be written
notice of the proposed transfer and the
supporting factual basis, an impartial
decision maker, an opportunity to be heard
and to present opposition, some form of
representation, and written findings of fact
supporting a decision to proceed with the
transfer.
[Id. at 557 (footnote omitted).]
We did not decide whether a juvenile was entitled to
representation by counsel, because the record was inadequate to
permit us to address the issue:
The record does not reflect whether legal
assistance similar to "counsel substitutes"
or some other form of legal assistance is
available in juvenile facilities to assist
juveniles in opposing a transfer request.
In addition, it is not clear whether
transferred juveniles are mixed with the
adult population when they are transferred
or segregated from adult offenders albeit
housed in an adult prison, nor does the
record reflect whether or not they continue
to receive rehabilitative and other services
available to juveniles at JJC facilities.
Those factors would inform our consideration
4 A-1030-13T2
of whether there must be representation by
counsel.
[Id. at 557 n.7.]
We ordered that the juvenile be returned to the JJC's
custody, and ordered the JJC to revise its regulations before
seeking to re-transfer the juvenile to DOC custody:
For the reasons set forth above, we reverse
the order transferring [J.J.] to the custody
of the DOC and order his return to the
custody of the JJC. The JJC shall promptly
revise its regulations to provide an
appropriate level of due process consistent
with this opinion. It may then seek to
transfer Jones to the custody of the DOC
with an appropriate hearing and procedural
safeguards.
[Id. at 558 (emphasis added).]
In our view, the above language was unambiguous and
unequivocal. The JJC needed to adopt revised regulations before
seeking to transfer juveniles to DOC custody. But that did not
happen. Instead, on August 1, 2013, the JJC adopted Policy
Number 13ED:01.30, entitled "Transfers of Juveniles to DOC –
Interim Policy." The interim policy, under which the JJC
continues to operate, was not promulgated in conformity with the
procedures required by the APA. See N.J.S.A. 52:14B-4. Almost
5 A-1030-13T2
two years after J.J. was decided, the agency still has not
adopted regulations.2
Meanwhile, on October 18, 2013, more than a year after J.J.
was decided, the JJC transferred Y.C. to an adult prison.
Pursuant to the interim policy, he received a hearing before a
JJC hearing officer, but he was denied the opportunity to be
represented by counsel, even though he had an attorney who
sought permission to appear. The attorney was permitted to file
a brief on Y.C.'s behalf, but was not allowed to be present at
the hearing. Instead, as provided by the interim policy, Y.C.
was represented at the hearing by a non-attorney, the JJC
Ombudsman, an individual whom the policy describes as "the
individual(s) within the Commission responsible for resolving
complaints made by juveniles about the facility, the action or
inaction of staff or any other matter of concern to the
juvenile." According to Y.C., he had no opportunity to
introduce educational and other records designed to show his
positive progress while in JJC custody; only his disciplinary
records and the JJC's institutional notes were introduced.
Further, he contends that the Ombudsman failed to present or
cross-examine any witnesses or otherwise act as an independent
and zealous advocate.
2
The agency proposed new regulations on August 19, 2013, 45
N.J.R. 1941(a), but has not adopted them.
6 A-1030-13T2
The JJC hearing officer determined that Y.C. should be
transferred to DOC custody because he had incurred forty-five
disciplinary charges in the past year, and he belonged to a
"security threat group." The prior charges included fighting,
attempted or aiding an assault on another juvenile, and throwing
bodily fluids. Y.C. contended that he was making efforts to
improve his behavior and had not incurred any disciplinary
infractions for the past four months preceding the hearing. The
hearing officer found that due to Y.C.'s disruptive conduct,
"his continued presence in the juvenile facility threatened the
safety" of the JJC staff and other juvenile residents. The
hearing officer also found that Y.C.'s behavior "undermined
JJC's ability to operate the juvenile facility in a stable, safe
and orderly manner," and his involvement in numerous serious
disciplinary infractions "impede[d] the effective delivery of
services because of his constant non-compliant behavior."
The record of this appeal does not provide the information
that, in J.J., we found necessary to decide whether juveniles
must have the right to counsel in transfer hearings. Moreover,
there is no transcript or other contemporaneous record of what
7 A-1030-13T2
occurred at the hearing, beyond a handwritten form and a short
supplemental decision from the hearing officer.3
II
On this appeal, Y.C. raises a plethora of issues in
multiple points and subpoints. Y.C. contends that the
Ombudsman, who was a JJC employee and not an attorney, was not
an appropriate representative. Analogizing to a case dealing
with transfers to mental health facilities, Vitek v. Jones, 445
U.S. 480, 494-95, 100 S. Ct. 1254, 1264-65, 63 L. Ed. 2d 552,
566 (1980), Y.C. argues he was entitled to representation by
counsel. He also argues that the JJC hearing officer was not an
impartial decision-maker. See N.J.A.C. 13:101-1.3 (disciplinary
hearing officer is a JJC staff member). He further contends
that a juvenile court judge must make the transfer decision, an
3
After this appeal was filed, Y.C. filed a motion to supplement
the record, largely aimed at documenting positive aspects of his
behavior at the JJC facility. We denied the motion. However,
we note that his motion included a certification attesting that
since his transfer to the DOC, he was being held in
administrative segregation with an adult roommate, and was not
being provided with educational or other services similar to
those available at the JJC. The JJC filed a certification
attesting that DOC inmates under age twenty-one are provided
with educational opportunities and other services, but stating
no facts pertaining specifically to Y.C. At most, the
certifications created material disputes of fact about the
conditions afforded juvenile transferees in the adult prison
system.
8 A-1030-13T2
argument we previously rejected. J.J., supra, 427 N.J. Super.
at 557.
Y.C. contends that the interim policy is invalid because it
was not adopted as a regulation. He argues that he could not be
transferred in the absence of the regulations we directed be
adopted in J.J. He also argues that, before he pled guilty in
juvenile court, he had a right to notice that he might
eventually be transferred to an adult prison. He contends the
JJC did not notify him, at the time he entered JJC custody, that
he could be transferred to adult prison as a disciplinary
consequence of violating institutional rules.
Y.C. argues that the interim policy unduly limits the
juvenile's right to present evidence and call witnesses at the
hearing, and does not clearly define what issues the juvenile is
required to address. He also contends that, without access to
his own institutional records, the right to present evidence at
a transfer hearing is meaningless. In a related argument, he
claims that the JJC's failure to consider a juvenile's entire
record is improper. And, he claims the proposed regulations go
further than the statute in setting forth grounds for a possible
transfer. He argues that a threat to security should be the
only acceptable grounds for a transfer. He asserts that the
applicable proof standard for a transfer should be "clear and
convincing" not "substantial credible evidence." He further
9 A-1030-13T2
contends that a transcript or electronic recording of the
hearing should be required, and that the hearing officer's
written statement of reasons was inadequate. Finally, he argues
that if he can be incarcerated in adult prison, he was entitled
to a jury trial before being adjudicated delinquent, an argument
we rejected in J.J.
In its response, the JJC emphasizes that Y.C. is nineteen
years old, six feet tall, weighs 190 pounds, is a member of a
security threat group, and was adjudicated delinquent for crimes
that if committed by an adult would have constituted first-
degree armed robbery. The JJC claims Y.C. is violent and has
assaulted other juveniles while at the New Jersey Training
School at Jamesburg and the Juvenile Medium Security Facility at
Bordentown. The JJC also contends that the procedures set forth
in the interim policy were consistent with what J.J. required,
and Y.C. was not entitled to any further due process.
III
We decline to decide the bulk of the issues Y.C. raises on
this appeal, because of the lack of an adequate factual record.
Moreover, many of the procedural issues he raises are addressed
by the remedy we order here, i.e., an OAL hearing at which he
will be represented by counsel. We also note that some of the
issues J.J. raises here may not be appropriate for decision in
the context of a disciplinary/transfer case.
10 A-1030-13T2
For example, Y.C.'s argument that juveniles are entitled to
jury trials, may be more appropriately raised in the context of
an appeal in which a juvenile has requested a jury trial and the
request has been denied. See, e.g., State ex rel. A.C., 424
N.J. Super. 252, 253 (App. Div. 2012); but see In re C.B., 708
So. 2d 391, 400 (La. 1998) (in the absence of the right to a
jury trial, a statute providing for the automatic transfer of
seventeen-year-old juveniles to adult prisons was
unconstitutional); Monroe v. Soliz, 939 P.2d 205, 208 (Wash.
1997) (finding that juvenile transfer statute did not implicate
the jury trial right, but juveniles were entitled to due process
prior to transfer). In this case, Y.C. did not request a jury
trial in juvenile court, and he pled guilty. Likewise, he is
not seeking to withdraw his guilty plea and, hence, this case
may not be an appropriate vehicle to decide whether he should
have been notified, prior to his plea, that he could at some
point be transferred to an adult prison. See, e.g., State v.
Bellamy, 178 N.J. 127, 138-40 (2003). Further, even if we were
inclined to reconsider issues already decided in J.J., we would
not do so on this record.
We lack an adequate factual record to consider Y.C.'s
challenge to the substance of the interim policy, and a
challenge to the agency's regulations, which have thus far only
been proposed, must wait until the regulations are adopted. In
11 A-1030-13T2
ordering the agency to adopt regulations within 180 days, we
contemplate that, within a reasonable time, there will be a
vehicle for an appropriate challenge and a record on which to
raise many of the issues that we are not deciding in this
appeal.
We do, however, have no hesitation in concluding that the
agency violated the APA in adopting the interim policy. The
policy is, in essence, a set of regulations promulgated without
following the required APA procedures set forth in N.J.S.A.
52:14B-4. If the JJC believed it had an emergent need to
transfer juveniles to adult facilities, it should have adopted
emergency regulations, because J.J. required that it adopt
regulations before conducting transfers. See N.J.S.A. 52:14B-
4(c) (adoption of emergency regulations); Cnty. of Hudson v.
Dep't of Corr., 152 N.J. 60, 73 (1997).
With respect to a remedy in this case, we acknowledge that
transferring adjudicated juveniles to adult prisons implicates
multiple significant issues that cannot be decided without an
appropriate record. For example, we have held that juveniles
are not entitled to jury trials in juvenile court, partly
because the goals of the juvenile justice system are primarily
rehabilitative, as opposed to punitive as in the adult criminal
justice system, and the consequences of an adjudication of
delinquency do not include a prison sentence. See A.C., supra,
12 A-1030-13T2
424 N.J. Super. at 255, aff'g 426 N.J. Super. 81 (Ch. Div.
2011). Additionally, as Y.C.'s counsel points out, when a
juvenile decides to plead guilty in juvenile court, he or she is
not notified beforehand that the plea may ultimately result in a
transfer to an adult prison.
On this appeal, Y.C. characterizes his transfer as a
massive shift in the conditions of his confinement, and a near-
complete deprivation of the rehabilitation opportunities he had
at the JJC. The JJC asserts that the transfer constitutes a
mere change of "location and housing" which implicates no
significant due process concerns. Both sides offer
representations rather than record evidence in support of their
arguments.
As we noted in J.J., a definitive decision on what process
is due a juvenile before the JJC makes a transfer determination
may depend on the conditions in which transferred juveniles are
confined after transfer and the services made available to them.
J.J., supra, 427 N.J. Super. at 557 n.7. Those important
considerations include whether transferred juveniles are housed
with adult-sentenced inmates; whether the juveniles receive
similar rehabilitative services in prison as would be available
in a JJC facility; and whether transfers are treated as
permanent, or whether they are treated as temporary and subject
to periodic review, with transfer back to the JJC being an
13 A-1030-13T2
option if the juvenile's behavior improves. See Monroe, supra,
939 P.2d at 209 (noting that Washington State regulations permit
transfer back to a juvenile facility).
In this case, the JJC acted in derogation of our J.J.
decision directing the agency to adopt new regulations before
transferring juveniles to adult prisons. Instead, the agency
promulgated a set of interim policies that were not adopted as
regulations and do not satisfy the APA. Although the JJC
eventually proposed new regulations, they still have not been
adopted.4 As a result, the JJC has not created any factual
record (e.g., through public comments and the agency's responses
to those comments) to justify the agency's procedures or permit
us to evaluate whether they pass statutory or constitutional
muster.5
4
At oral argument, the JJC's counsel advised us that the agency
had decided to make changes to the regulations it originally
proposed and would need to re-propose the regulations with the
changes. Hence, it is premature for us to opine on the
standards set forth in the regulations as originally proposed,
since those evidently will not be the rules the agency finally
adopts.
5
We do not rule out the possibility that a challenge to the
regulations, when they are finally adopted, could require a
referral to a trial court to make a complete factual record.
See R. 2:5-5(b); J.B. v. N.J. State Parole Bd., 433 N.J. Super.
327, 330-31 (App. Div. 2013), certif. denied, ___ N.J. ___
(2014). We note, for example, that Wilkinson v. Austin, 545
U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005), concerning
the due process protections required before an inmate can be
transferred to a "Supermax" facility, was based on a record
(continued)
14 A-1030-13T2
The hearing process conducted by the JJC in this case
provided an inadequate record on which to decide the serious
issues Y.C. seeks to present on this appeal. The hearing
officer was a JJC employee and thus not a neutral decision-
maker. Although Y.C. had an attorney ready, willing and able to
represent him, he was instead represented by the JJC Ombudsman,
who was not an attorney and was not independent of the JJC. And
the proceeding was not recorded. Thus, even if we remanded for
a rehearing before the JJC, its current hearing procedures would
be insufficient to produce a record appropriate for the decision
of novel legal issues. As we noted in J.J., those issues
include whether a juvenile has a due process right to be
represented by counsel at a transfer hearing. J.J., supra, 427
N.J. Super. at 557 n.7. Because Y.C. has already been
transferred to an adult prison, his case will illustrate what
happens to transferred juveniles in practice, as opposed to in
theory. But, as noted, we have no confidence that such a record
can be made using the JJC's in-house hearing procedures.
For all of those reasons, we order that the hearing on
remand be conducted by the Office of Administrative Law rather
(continued)
created at "an 8-day trial with extensive evidence, including
testimony from expert witnesses . . . ." Id. at 218, 125 S. Ct.
at 2391, 162 L. Ed. 2d at 187.
15 A-1030-13T2
than by a JJC hearing officer.6 At that hearing, Y.C. shall have
the right to be represented by counsel. Both sides shall have
the right to present evidence on these issues: the reasons why
Y.C. should or should not have been transferred to an adult
prison, consistent with the standards set forth in the juvenile
transfer statute, N.J.S.A. 52:17B-175(e); Y.C.'s current
conditions of confinement, including whether he is being housed
with adult-convicted inmates and whether he is being provided
with rehabilitative services comparable to those he would
receive in a JJC facility; and whether, given his history of
conduct at the adult prison, it may be appropriate to transfer
him back to a JJC facility, even if his initial transfer to an
adult prison was justified. Because this is, to some extent, a
6
We find no statutory impediment to the OAL hearing such a case.
As an agency "in, but not of" the Department of Law and Public
Safety, N.J.S.A. 52:17B-170, the JJC falls within the definition
of "State agency" contained in the Administrative Procedures
Act. N.J.S.A. 52:14B-2. Moreover, even an agency whose
hearings ordinarily are not heard before the OAL may make a
"specific request" that an administrative law judge (ALJ) be
assigned to hear one or more of its contested cases. N.J.S.A.
52:14F-8(a). Those agencies include, for example, the Parole
Board. Ibid. Hence, there is authority for an ALJ to hear
cases that ordinarily would be heard by the agency itself, as
well as cases that involve a prison inmate or adjudicated
juvenile, whose hearing may require special security measures.
See also J.E. ex rel. G.E. v. State, 131 N.J. 552, 561-62 (1993)
(Division of Developmental Disabilities decision to transfer
developmentally disabled individual to new residence); N.J. Div.
of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 412-13
(App. Div. 1998) (Division of Youth and Family Services
determination of abuse and neglect).
16 A-1030-13T2
test case, the ALJ should err on the side of allowing both sides
to present as complete a record as possible. See In re
Carberry, 114 N.J. 574, 588 (1989) (noting the importance of a
complete factual record when a case raises a potential
constitutional issue).
As with other administrative hearing matters, the assigned
administrative law judge will issue an initial decision, which
the agency head may then adopt, reject or modify. See N.J.S.A.
52:14B-10(c). Consistent with N.J.S.A. 52:17B-175(a), the
Department of Corrections shall provide security during the OAL
hearing, at whatever facility is deemed appropriate after
consultation with the OAL. We direct that the proceedings on
remand be completed within ninety days, unless Y.C. consents to
an extension of time.7 Because the appropriate proof standard
may be an issue on any further appeal, we direct that the ALJ
make alternative findings as to whether the JJC proved its case
by clear and convincing evidence and, if not, whether the agency
proved its case by a preponderance of the evidence.
7
Out of deference to the agency's security concerns and based on
our review of the evidence presented thus far, we are not
ordering that Y.C. be immediately returned to a JJC facility.
Therefore, the proceedings on remand should be conducted
expeditiously. However, we do not want Y.C. to be precluded by
time constraints from presenting a complete defense and making a
complete record.
17 A-1030-13T2
We direct the JJC to adopt regulations within 180 days.
Until the JJC adopts regulations, the JJC may not transfer any
adjudicated juvenile from JJC custody to an adult prison without
an OAL hearing at which the juvenile has the right to be
represented by counsel. In response to our inquiry at oral
argument, the JJC's attorney advised us that these types of
transfers are uncommon and that approximately five juveniles are
transferred from JJC custody to adult prisons annually.
Therefore, we anticipate that the interim requirements we impose
in this opinion will not be unduly burdensome or a disruption to
the JJC's mission.8
Reversed and remanded. We do not retain jurisdiction.
8
To address a concern expressed by the JJC at oral argument, we
emphasize that this opinion is limited to transfers of
adjudicated juveniles from JJC custody to adult prisons. It
does not apply to adult inmate disciplinary hearings conducted
by the Department of Corrections, transfers of adult-convicted
inmates between DOC facilities, transfers of juveniles from one
JJC facility to another, or routine JJC disciplinary proceedings
which do not concern transferring a juvenile to an adult
facility.
18 A-1030-13T2