In the Matter of the Civil Commitment of D.Y. Svp 491-08

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

In the Matter of Civil Commitment of D.Y. (A-42-12) (071464)

Argued November 19, 2013 – Reargued May 5, 2014 – Decided July 24, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court considers whether a competent individual who is subject to involuntary civil
commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 3-:4-27.24 to -27.38, may represent
himself or herself at a commitment hearing.

In 1987 and 1994, D.Y. pled guilty to repeated sexual assaults against his nephew and another boy, both of
whom were twelve years old when the abuse began. As a result, D.Y. was convicted of offenses in state and federal
court. On May 27, 2008, after serving his sentences, the State filed a petition for D.Y.’s involuntary civil
commitment. At the initial hearing, although counsel had been appointed to represent him, D.Y. stated that he
wanted to represent himself. The court ordered the State to conduct a psychiatric evaluation to assess D.Y.’s
competence and scheduled a final commitment hearing for June 8, 2009. D.Y. refused to attend the hearing. The
trial court judge proceeded in D.Y’s absence, concluded that he had a high likelihood of reoffending, entered an
order of commitment, and scheduled a final hearing for June 1, 2010. D.Y. filed a motion for reconsideration,
arguing that too much time had lapsed between his temporary and final orders of commitment. The trial court
denied the motion.

D.Y. appealed the court’s final order of commitment. In addition to challenging the timeliness of his final
commitment hearing, D.Y. argued that he had a right to self-representation under the Sixth and Fourteenth
Amendments of the United States Constitution. An Appellate Division panel affirmed the trial court’s denial of
D.Y.’s application, concluding that neither of the federal constitutional principles D.Y. invoked affords a right to
self-representation in an SVPA civil commitment proceeding. In the Matter of Civil Commitment of D.Y., 426 N.J.
Super. 436 (App. Div. 2012).

This Court granted certification, limited to whether there is a constitutional right to self-representation at a
commitment hearing under the SVPA. 426 N.J. 436 (2013). After oral argument, the Court ordered supplemental
briefing on: (1) the proper standard by which to analyze the right of self-representation under the Fourteenth
Amendment in a proceeding involving the SVPA; and (2) whether D.Y.’s claim presents an issue of substantive due
process or a concern under Article 1, Paragraph 1 of the New Jersey Constitution. The Court granted the motion of
the American Civil Liberties Union of New Jersey Foundation (ACLU-NJ) and Disability Rights New Jersey, Inc.
(DRNJ) to appear as amici curiae.

HELD: The plain language of N.J.S.A. 30:4-27.29(c) and -27.31(a) requires that there be one of two alternative forms
of representation at SVPA commitment hearings: (1) full representation by counsel, or (2) self-representation by an
individual who is competent to conduct his or her case, with standby counsel present throughout the hearing to assist if
needed. Standby counsel may advise the committee, assist the court in expediting the proceedings, and assume an
active role if his or her client proves unwilling or unable to participate cooperatively in the hearing.

1. This appeal presents an issue of law. Therefore, the relevant standard of review is de novo. De novo
review requires the Court to consider the trial court’s rejection of D.Y.’s application to represent himself at his
SVPA hearing based on constitutional and statutory principles, with no special deference. (pp. 14-15)

2. The practice of pro se, or self, representation by civil litigants finds its genesis in the English common law.
This tradition followed English settlers to North America. West New Jersey and East New Jersey, which would
later comprise the colony, and then the State, of New Jersey, permitted parties in both civil and criminal cases to
appear in court unrepresented. As they did in our State’s colonial past, litigants frequently represent themselves in
New Jersey today. (pp. 15-18)

1
3. A litigant’s decision to proceed pro se may undermine his or her position in the case. An unrepresented
litigant who cannot or will not cooperate with the court can disrupt the proceedings, or derail them entirely. (p. 20)

4. The use of standby counsel has developed in the setting of criminal cases in which defendants exercise their
Sixth Amendment right to represent themselves. The involvement of standby counsel need not undermine the
litigant’s autonomy in directing his or her case and can serve to protect the integrity of the proceeding. (pp. 20-22)

5. Where a case may be decided on either statutory or constitutional grounds, the Court will inquire first into
the statutory question and decline to reach the constitutional question, unless required to do so. Notwithstanding the
constitutional analysis undertaken by the parties, the amici, and the courts that have considered D.Y.’s assertion of a
right of self-representation, this case may be decided as a question of statutory interpretation. In light of New
Jersey’s historical recognition of a competent litigant’s election to represent himself or herself in civil proceedings,
the Court considers whether the two provisions of the SVPA that address representation in involuntary commitment
hearings, N.J.S.A. 30:4-27.29(c) and -27.31(a), bar a competent individual from appearing pro se at an SVPA civil
commitment hearing with the assistance of standby counsel. (pp. 23-24)

6. To assess whether someone is a sexually violent predator subject to civil commitment, the State must
establish that the individual has been convicted of a sexually violent offense, suffers from a mental abnormality or
personality disorder, and that as a result of the psychiatric abnormality or disorder, it is highly likely that the
individual will not control his or her sexually violent behavior and will reoffend. (pp. 25-27)

7. The SVPA identifies five rights afforded to a person subject to civil commitment as a sexually violent
predator. N.J.S.A. 30:4-27.31. In addition to the right to counsel included therein, a corresponding provision,
N.J.S.A. 30:4-27.29(c), states that a person subject to involuntary commitment shall have counsel present at the
hearing and shall not be permitted to appear at the hearing without counsel. The Legislature did not, however, bar
an individual facing SVPA commitment from representing himself or herself, or state that an individual may
participate in the proceedings only through counsel. Therefore, in future SVPA hearings, including D.Y.’s hearing
on remand, competent SVPA committees may appear on their own behalf, with retained or appointed standby
counsel present to assist them if necessary. (pp. 27-30)

8. In this context, any decision by a committee to waive the right to full representation by counsel should be
clearly stated to the trial court, and the court should ensure that the committee’s waiver of representation by counsel
is knowing, intelligent and voluntary. In State v. Crisafi, this Court prescribed the inquiry that trial courts should
make when criminal defendants invoke their right to self-representation. 128 N.J. 499, 511-12 (1992). The trial
court should conduct a similar inquiry to ensure that the committee is aware of his or her statutory right to be fully
represented by counsel, and that he or she understands the importance of representation by an attorney in such a
complex case. (p. 31)

9. The role of standby counsel will be shaped by the issues confronting the court. A competent individual,
who represents himself or herself at an SVPA hearing in compliance with the rules of court, cannot be compelled to
accept the advice of his or her standby counsel. Standby counsel serves as a resource, guiding the committee
through each stage of the hearing and minimizing disruption and delay. A committee appearing pro se should not be
permitted to obstruct the proceedings. Proceeding unrepresented does not authorize the committee to undermine the
judge’s ability to make the important determination required by the SVPA. When a competent individual chooses
the alternative of self-representation, standby counsel will be available to provide advice and guidance, and will
assist the trial court in conducting an SVPA commitment hearing that is thorough and fair. (pp. 31-34)

The judgment of the Appellate Division is REVERSED. The case is REMANDED to the trial court for a
new commitment hearing.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and FERNANDEZ-VINA; and
JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-42 September Term 2012
071464

IN THE MATTER OF THE

CIVIL COMMITMENT OF

D.Y. SVP 491-08

Argued November 19, 2013
Reargued May 5, 2014 – Decided July 24, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 426 N.J. Super. 436 (2012).

Lewis P. Sengstacke, Assistant Deputy Public
Defender, argued the cause for appellant
D.Y. (Joseph E. Krakora, Public Defender,
attorney).

Robert T. Lougy, Assistant Attorney General,
argued the cause for respondent State of New
Jersey (John J. Hoffman, Acting Attorney
General, attorney; Mr. Lougy, Amy Beth Cohn,
and Susan M. Scott, Deputies Attorney
General, on the briefs).

Lawrence Bluestone argued the cause for
amici curiae American Civil Liberties Union
of New Jersey Foundation and Disability
Rights of New Jersey, Inc. (Lowenstein
Sandler, attorneys; Mr. Bluestone, Catherine
Weiss, and Alexander R. Shalom, on the
brief).

JUSTICE PATTERSON delivered the opinion of the Court.

This appeal raises an issue not previously considered by

the Court: whether a competent individual who is subject to

involuntary civil commitment pursuant to the Sexually Violent

1
Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, may

represent himself or herself at a commitment hearing.

In 2008, the State filed a petition for the involuntary

civil commitment of D.Y., who had been convicted of several

state and federal charges arising from sexual assaults on

minors. At his initial commitment hearing, D.Y. stated that he

did not want to be represented by the attorney who had been

appointed for him in accordance with N.J.S.A. 30:4-27.31(a),

which affords individuals a right to counsel at SVPA hearings.

D.Y. did not attend his final hearing, in which his counsel

moved on his behalf for an order permitting D.Y. to represent

himself. The judge conducting the hearing denied the motion,

stating that individuals subject to SVPA commitment must be

represented by counsel pursuant to N.J.S.A. 30:4-27.29(c).

D.Y. appealed, asserting a right to self-representation

under two provisions of the United States Constitution, the

Sixth Amendment and the Due Process clause of the Fourteenth

Amendment. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1.

An Appellate Division panel affirmed the trial court’s denial of

D.Y.’s application, concluding that neither federal

constitutional principle invoked by D.Y. affords a right to

self-representation in an SVPA civil commitment proceeding.

We reverse. We recognize that competent litigants in New

Jersey have long been permitted to represent themselves in civil

2
proceedings, with specific exceptions identified in statutes,

court rules, and case law. Accordingly, we consider the

Legislature’s intent when it enacted N.J.S.A. 30:4-27.29(c),

which requires an SVPA committee to “have counsel present” and

bars him or her from appearing “at the hearing without counsel,”

and N.J.S.A. 30:4-27.31(a), which affords individuals the right

to be represented by counsel at SVPA commitment hearings. We

find no evidence that the Legislature, when it enacted those

provisions, intended to preclude an individual facing SVPA

commitment from speaking on his or her own behalf, as long as

standby counsel is present and available to assist throughout

the hearing if needed.

Instead, applying the plain meaning of the statutory text,

we hold that the statutory mandate is satisfied if a committee

who elects to represent himself or herself retains or is

assigned standby counsel. Such standby counsel may advise the

individual subject to commitment, assist the court in expediting

the proceedings, and assume an active role if his or her client

proves unwilling or unable to participate cooperatively in the

hearing. We acknowledge the effective assistance that standby

counsel have provided to pro se litigants in a range of settings

and find that such assistance comports with the Legislature’s

intent when it addressed the issue of counsel in SVPA hearings

in N.J.S.A. 30:4-27.29(c) and -27.31(a). Because we resolve this

3
case by statutory construction, we do not reach the Sixth

Amendment and due process issues raised by D.Y. A

constitutionally based adjudication is not necessary in light of

our construction of the statute.

We recognize that an SVPA committee’s decision to represent

himself or herself will seldom prove to be a sound strategic

choice. With complex issues to address, and his or her liberty

at stake, it is the rare SVPA committee who will have the skill

and experience of an effective lawyer. We are also aware of the

challenges that a pro se litigant may pose to the court, counsel

for the State, testifying experts, and the progress of the

hearing itself. Our decision is rooted in our State’s

traditional respect for the right of a civil litigant to choose

the path of self-representation, regardless of whether that

decision is a wise one. Consistent with the Legislature’s

intent, a competent individual subject to SVPA commitment may

represent himself or herself, provided that the support of

retained or appointed standby counsel is available if necessary.

Accordingly, we reverse the determination of the Appellate

Division and remand this case for a new commitment hearing.

I.

The proceedings to involuntarily commit D.Y. pursuant to

the SVPA were premised upon two predicate state criminal

convictions, one in 1987 and one in 1994, as well as convictions

4
in federal court related to the same offenses as those leading

to D.Y.’s 1994 conviction in state court.

The victim in D.Y.’s first series of sexual offenses was

his twelve-year-old nephew, C.Y. In November 1986, D.Y. was

indicted for: first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-

2(b); and third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a). These charges arose from allegations by

C.Y. that D.Y. had engaged in sexual conduct with him on several

occasions. D.Y. entered into a plea agreement with the State,

pursuant to which he pled guilty to second-degree sexual assault

in exchange for the dismissal of the other charges. He was

sentenced to a five-year term of incarceration.

D.Y.’s second set of sexual offenses was the subject of a

state court indictment in 1994, in which he was charged with:

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1);

second-degree sexual contact, N.J.S.A. 2C:14-2(b); and third-

degree impairing the morals of a child, N.J.S.A. 2C:24-4(a).

These charges arose from D.Y.’s contact with a twelve-year-old

boy, A.B., whom D.Y. befriended while on probation. In 1994,

A.B. reported to police that D.Y. had sexually abused him over

the span of three years. According to A.B., D.Y. sexually

abused him during a rafting trip along the Delaware River, on a

vacation in Virginia during which they stayed together in a

5
hotel room, in approximately ten to fifteen incidents at a mall

where D.Y. worked, and on thirty to fifty occasions at D.Y.’s

home. Some of these incidents involved oral and anal sex, which

were videotaped by D.Y., and the display of child pornography to

the minor. On June 23, 1994, D.Y. pled guilty to first-degree

aggravated sexual assault, in exchange for a dismissal of all

charges. For that offense, D.Y. was sentenced on April 19,

1995, to an eighteen-year term of imprisonment, subject to a

six-year period of parole ineligibility, at the Adult Diagnostic

and Treatment Center at Avenel (ADTC).1

In addition, federal authorities filed separate charges

arising from some of the incidents involving A.B. D.Y. was

charged in the United States District Court for the District of

New Jersey with coercing a minor to engage in sexually explicit

conduct for the purpose of making visual depictions of such

conduct, 18 U.S.C.A. § 2251(a), and interstate transportation of

1
Between his first and second terms of incarceration for sexual
offenses, D.Y. pled guilty to theft, N.J.S.A. 2C:20-3. The
charge arose from D.Y.’s brief employment as the manager of a
shoe store following his release from prison. He was accused of
stealing $1500 from the store. D.Y. was sentenced to three
years’ probation for the theft charge on the same day he was
sentenced for the state charges involving sex offenses against
A.B. In addition, D.Y. was sentenced to three years’
imprisonment, consecutive to his state and federal sentences for
the offenses against A.B., for violating his probation term
arising from the offenses against C.Y. Theft is not a predicate
offense for purposes of the SVPA, N.J.S.A. 30:4-27.26, and
accordingly the theft charge is irrelevant to D.Y.’s civil
commitment proceedings.
6
a minor with the intent to engage in sexual activity with the

minor, 18 U.S.C.A. § 2423. On October 28, 1994, D.Y. pled

guilty to both counts of the federal indictment. On April 6,

1995, he was sentenced to 137 months’ incarceration.2

D.Y. completed his term of incarceration on or about June

7, 2008.

II.

D.Y.’s SVPA proceedings commenced with the State’s May 27,

2008 petition for his involuntary civil commitment pursuant to

N.J.S.A. 30:4-27.28. The State’s petition was supported by

certifications prepared by two expert psychiatrists, Marina

Moshkovich, M.D. and Sureshbabu Kurra, M.D., both of whom

diagnosed D.Y. with pedophilia and antisocial personality

disorder. On June 4, 2004, the trial court found “that there

[was] probable cause to believe that [D.Y.] suffer[ed] from a

mental abnormality or personality disorder that [made] him

likely to engage in acts of sexual violence if not confined to a

secure facility for control, care and treatment.” The trial

court entered an order temporarily committing D.Y. to the

Special Treatment Unit (STU), the facility operated by the

Department of Corrections and the Department of Human Services

that houses individuals who are civilly committed under the

SVPA. N.J.A.C. 10:36A-1.1. The trial court’s order required

2
The federal and State terms were to be served concurrently.
7
D.Y. to remain at the STU pending a hearing that the court

scheduled for June 23, 2008.

The hearing proceeded on the scheduled date. D.Y. was

represented by appointed counsel, who reported to the court that

the State had failed to have its designated expert interview

D.Y. within five days of the order of temporary commitment, as

required by N.J.S.A. 30:4-27.30(b). Counsel for D.Y. explained

that D.Y. had declined a request to be interviewed. D.Y. asked

to be heard. He confirmed that he did not want to be

interviewed, and commented, “I don’t want a hearing, either,”

urging the trial court to “[j]ust sign the commitment papers.”

D.Y. represented to the court that he wanted to leave the

hearing, and when the court inquired as to whether he would stay

to assist his counsel, he responded, “I fired him last week, I

don’t want him.” Advised by the court that he could not fire

his lawyer, D.Y. retorted, “[w]hy, this is nothing but a joke

anyhow. Just go ahead and commit me.” He added, “[t]he

statutes in this State have been written and broken constantly

by the State. It’s nothing but a joke.”

Although D.Y. stated that he wanted to leave the hearing,

the court required him to remain in the hearing room pending

testimony by the State’s expert, Dr. Howard Gilman, about D.Y.’s

competency. The trial court noted the possibility that D.Y.’s

statements constituted an assertion of the right to self-

8
representation. The State then asked Dr. Gilman about his

unsuccessful attempts to interview D.Y. When the expert

testified that at one point D.Y. had told ADTC staff that he

would consent to be interviewed, D.Y. claimed that the witness

was lying, and again stated that the lawyer appearing on his

behalf was “not [his] counsel.” The trial judge replied that

the SVPA compelled D.Y. to be represented by counsel. D.Y.

responded that the requirement that he be represented was

“illegal according to the United States Constitution,” and

stated, “[w]e’re allowed to represent ourselves, no matter what

the State says.”

Resuming his testimony, Dr. Gilman told the trial court

that in the absence of an interview, he was unable to determine

whether D.Y. was competent to discharge his lawyer or waive his

right to a final civil commitment hearing. Accordingly, the

trial court ordered the State to conduct a psychiatric

evaluation of D.Y. in order to assess his competence.

Subsequently, D.Y. was evaluated by Peter Paul, Ph.D., a

psychologist at the Ann Klein Forensic Center. Dr. Paul opined

that D.Y.’s behavior was consistent with a diagnosis of

Personality Disorder. Dr. Paul concluded that D.Y. “[was] of

above average intelligence and . . . ha[d] no mental illness

that would interfere with his ability to understand or

participate in the legal proceedings against him.”

9
 D.Y.’s final commitment hearing took place on June 8, 2009.

When he was approached by officers intending to escort him to

his hearing, D.Y. refused to wear leg restraints and declined to

attend the hearing. D.Y.’s attorney advised the trial court

that D.Y. had refused to speak to him, “except to tell [him]

that he wishe[d] . . . to represent himself,” and moved “that

[D.Y.] be permitted to do so.” The trial court offered to

permit D.Y. to participate in his representation in conjunction

with counsel.

The trial court then proceeded with the hearing, and the

State presented the testimony of its expert, Dr. Gilman. At the

conclusion of the hearing, the trial court found “by clear and

convincing evidence that” D.Y. had a high likelihood to reoffend

and “to engage in acts of sexual violence” in the future. The

court entered an order of commitment and scheduled a hearing for

June 1, 2010, pursuant to N.J.S.A. 30:4-27.35. D.Y. then filed

a motion for reconsideration based on the time that had elapsed

between his temporary order of commitment and his final

commitment hearing. The trial court denied the motion.

D.Y. appealed the trial court’s final order of commitment.

In addition to asserting an argument based upon the timeliness

of his final commitment hearing, D.Y. asserted a right to self-

representation. He based that assertion on two federal

constitutional provisions: the Sixth Amendment to the United

10
States Constitution, as applied by the United States Supreme

Court in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45

L. Ed. 2d 562 (1975), and the Due Process Clause of the

Fourteenth Amendment, under the factors articulated by the

United States Supreme Court in Mathews v. Eldridge, 424 U.S.

319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

The Appellate Division rejected both of D.Y.’s arguments.

In re Civil Commitment of D.Y., 426 N.J. Super. 436, 442-47

(App. Div. 2012). It held that the Sixth Amendment right to

self-representation recognized in Faretta, “as a corollary to

the Sixth Amendment right to counsel,” extended only to criminal

cases, and that it does not apply to civil commitment. Id. at

441-43. It also concluded that self-representation is not “a

necessary component of a fair civil commitment proceeding” for

purposes of procedural due process analysis under Mathews. Id.

at 443-47. The Appellate Division concluded that “there is no

constitutional right to self-representation . . . because the

significant interests implicated therein are adequately

safeguarded by extant procedural protections, including, most

importantly, the right to counsel.” Id. at 446. Accordingly,

the Appellate Division affirmed the trial court’s determination.

Id. at 439, 448.

The Court granted certification, “limited to the issue of

whether there is a constitutional right to self-representation

11
at a commitment hearing under the Sexually Violent Predator Act,

N.J.S.A. 30:4-27.24 to -27.38.” 213 N.J. 394 (2013). Following

oral argument, the Court ordered supplemental briefing on two

issues: (1) the proper standard to analyze the right of self-

representation under the Fourteenth Amendment in a proceeding

involving the SVPA; and (2) whether D.Y.’s claim of a right to

self-representation presents an issue of substantive due process

or a concern under Article 1, Paragraph 1 of the New Jersey

Constitution. The Court granted the motion of the American

Civil Liberties Union of New Jersey Foundation (ACLU-NJ) and

Disability Rights New Jersey, Inc. (DRNJ) to appear as amici

curiae, and heard additional oral argument regarding the

questions addressed in the supplemental briefs.

III.

D.Y. argues that he clearly and unequivocally asserted the

right to represent himself in his SPVA hearings. He asserts

that although SVPA commitment hearings are civil proceedings,

the United States Supreme Court’s reasoning in Faretta

nonetheless governs this case because both criminal prosecutions

and civil commitment proceedings involve a substantial

curtailment of liberty, and that he has a Sixth Amendment right

to represent himself. D.Y. contends that under the Supreme

Court’s analysis in Mathews, he has a right to represent himself

rooted in the Due Process Clause of the Fourteenth Amendment.

12
He asserts that in this case, a compelling private interest is

implicated, the denial of his request would effect a substantial

deprivation of his freedom of choice, self-representation would

impose no additional burden on the State, standby counsel would

be available to assist, and trial courts would retain the right

to deny the right of self-representation to incompetent

individuals subject to SVPA civil commitment. In his

supplemental brief, D.Y. asserts that the requirements of the

SVPA unconstitutionally impinge on his right to conduct his own

defense and compromise an autonomy interest that cannot be

preserved by means of procedural safeguards. Raising an

additional issue for the first time before this Court, D.Y.

contends that Article 1, Paragraph 1 of the New Jersey

Constitution protects an SVPA committee’s fundamental right to

conduct his own defense, given New Jersey’s long tradition of

respecting the right of self-representation.

The State contends that N.J.S.A. 30:4-27.29(c) and

-27.31(a) reflect the Legislature’s intent that an individual

subject to involuntary commitment under the SVPA should be

represented by counsel. It contends that the United States

Supreme Court’s decision in Faretta is limited to criminal

prosecutions, and that D.Y. has no Sixth Amendment right to

represent himself. Relying upon California case law, the State

asserts that D.Y. has no Fourteenth Amendment due process right

13
to conduct his own defense, and that the participation of

counsel, not self-representation, ensures a fair and accurate

proceeding. The State identifies two important governmental

interests that weigh against self-representation: (1) the

protection of the public from dangerous individuals, and (2) the

orderly administration of justice in circumstances in which the

committee faces confinement. In its supplemental brief, the

State argues that the United States Supreme Court’s analytical

framework in Mathews governs this case. It also counters D.Y.’s

substantive due process argument, contending that self-

representation in an SVPA proceeding is not a fundamental right.

Amici curiae ACLU-NJ and DRNJ urge the Court to reject the

framework of Mathews in favor of a substantive due process

analysis. They contend that self-representation in civil cases

is a fundamental right dating back to New Jersey’s colonial

origins, and that it historically extends to civil commitment

hearings. Amici argue that the Court should recognize self-

representation in involuntary commitment hearings under the SVPA

to be a fundamental right under Article I, Paragraph 1 of the

New Jersey Constitution, which protects fundamental rights not

otherwise recognized by the federal Constitution.

IV.

This appeal presents an issue of law, and the relevant

standard of review is de novo. Balsamides v. Protameen Chems.,

14
Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, we

consider the trial court’s rejection of D.Y.’s application to

represent himself at his SVPA hearing, based upon constitutional

and statutory principles, with no special deference. Manalapan

Realty, supra, 140 N.J. at 378.

A.

The practice of pro se3 representation by civil litigants

finds its genesis in the English common law, which long

respected a competent civil litigant’s prerogative to decide

whether he or she would seek the assistance of counsel. “The

origins of the right to appear for oneself in civil proceedings

derive from a number of sources, all deeply rooted in our

history and culture.” Iannaccone v. Law, 142 F.3d 553, 557 (2d

Cir. 1998). One of those sources is the English common law.

“Under the English common law with its complicated forms of

action and veritable maze of writs and confusing procedures, the

right to retain counsel in civil proceedings became a

necessity.” Ibid. However, by the mid-thirteenth century,

“lawyers so monopolized the courts in London that the King was

forced to decree that, except for a few special causes,

3
Pro se, a Latin phrase meaning “[f]or oneself,” denotes a
litigant who represents himself or herself “in a court
proceeding without the assistance of a lawyer.” Black’s Law
Dictionary 1341 (9th ed. 2009).
15
litigants were entitled to plead their own cases without

lawyers.” Ibid. (citing Note, The Right to Counsel in Civil

Litigation, 66 Colum. L. Rev. 1322, 1325 (1966)). Thus, in the

English legal tradition from which our law was largely derived,

litigants generally had the right to represent themselves in

court.

The tradition of self-representation followed English

settlers to North America. As the United States Supreme Court

noted in Faretta, supra, “[t]he colonists brought with them an

appreciation of the virtues of self-reliance and a traditional

distrust of lawyers.” 422 U.S. at 826, 95 S. Ct. at 2537, 45 L.

Ed. 2d at 577. As a result, several American colonies went so

far as to prohibit “pleading for hire.” Id. at 827, 95 S. Ct.

at 2537, 45 L. Ed. 2d at 577. For example, the Massachusetts

Body of Liberties of 1641 stated that “[e]very man that findeth

himselfe unfit to plead his owne cause in any Court shall have

Libertie to imploy any man against whom the Court doth not

except, to helpe him, Provided he give him noe fee or reward or

his paines.” Mass. Body of Liberties, Art. 26 (1641), available

at https://history.hanover.edu/texts/masslib.html.

Several early colonial documents guaranteed the right to

self-representation by giving “colonists a right to choose

between pleading through a lawyer and representing oneself.”

Faretta, supra, 422 U.S. at 828, 95 S. Ct. at 2537-38, 45 L. Ed.

16
2d at 578. West New Jersey and East New Jersey, later to

comprise the colony and then the State of New Jersey, permitted

parties in both civil and criminal cases to appear in court

unrepresented. The Concessions and Agreements of the

Proprietors, Freeholders and Inhabitants of the Province of West

New-Jersey, in America stated “[t]hat [in] the trials of all

causes, civil and criminal, . . . no person or persons shall be

compelled to fee any attorney . . . but that all persons shall

have free liberty to plead his own cause if he please.” The

Concessions and Agreements of the Proprietors, Freeholders and

Inhabitants of the Province of West New-Jersey, in America, ch.

XXII (1677), available at http://westjersey.org/ca77.htm#chap22.

Similarly, the Fundamental Constitutions for the Province of

East New Jersey in America stated that “in all courts persons of

all perswasions may freely appear in their own way, and

according to their own manner, and there personally plead their

own causes themselves.” The Fundamental Constitutions for the

Province of East New Jersey in America, ch. XIX (1683),

available at http://avalon.law.yale.edu/17th_century/nj10.asp.4

4
There were similar documents in other colonies. The 1682 Frame
of Government of Pennsylvania, for example, stated that “in all
courts all persons of all persuasions may freely appear in their
own way, and according to their own manners and there personally
plead their own cause themselves; or, if unable, by their
friends.” Frame of Gov’t of Penn., Laws Agreed Upon in England,
ch. VI (1682), available at
http://avalon.law.yale.edu/17th_century/pa04.asp. In Faretta,
17
In the view of Thomas Paine, “to plead one’s cause was ‘a

natural right,’ pleading through counsel was merely an

‘appendage’ to the natural right of self-representation.”

Iannacone, supra, 142 F.3d at 558 (quoting Faretta, supra, 422

U.S. at 830 n.39, 95 S. Ct. at 2538 n.39, 45 L. Ed. 2d at 578-79

n.39).

As they did in our State’s colonial past, litigants

frequently represent themselves in New Jersey today. Trial

courts handling civil, probate, and family disputes routinely

encounter litigants who appear without counsel. Appellants and

respondents in civil and family matters often conduct their

appeals pro se in this Court and the Appellate Division. See,

e.g., Price v. Himeji, LLC, 214 N.J. 263, 268 (2013) (noting

plaintiff’s self-representation in zoning dispute); Leodori v.

CIGNA Corp., 175 N.J. 293, 295 (2003) (stating that plaintiff

represented himself in action brought under New Jersey

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8);

Lepore v. Nat’l Tool & Mfg. Co., 115 N.J. 226, 226-27 (1989)

(noting that plaintiff appeared pro se in appeal from trial

court’s dismissal of common law retaliatory discharge claim);

supra, the Supreme Court “found no instance where a colonial
court required a defendant in a criminal case to accept as his
representative an unwanted lawyer” and noted that “even where
counsel was permitted, the general practice continued to be
self-representation.” 422 U.S. at 828, 95 S. Ct. at 2537, 45 L.
Ed. 2d at 577.
18
Buckley v. Trenton Saving Fund Soc’y, 111 N.J. 355, 357 (1988)

(identifying plaintiff as pro se in appeal of banking dispute);

S.B. v. G.M.B., 434 N.J. Super. 463, 468-69 (App. Div. 2014)

(noting that defendant represented herself in custody dispute

with former spouse); Sommers v. McKinney, 287 N.J. Super. 1, 4-5

(App. Div. 1996) (stating that plaintiff litigated fraud and

legal malpractice against her former attorney pro se). In

short, New Jersey’s courts have vast experience in the oversight

of matters in which litigants represent themselves.5

B.

5
Certain categories of litigants in civil, probate, and family
court matters, such as minors or persons determined to be
mentally incapacitated, are afforded special protections which
may include appointment of counsel and/or a fiduciary. See,
e.g., N.J.S.A. 3B:13A-3 (providing that in conservatorship
proceedings “court shall have the right to appoint counsel for
[a] proposed conservatee if it believes that counsel is
necessary to adequately protect the interests of the
conservatee”); R. 5:8A (stating that in cases “where custody or
parenting time/visitation is an issue,” Family Part, on its own
motion or motion of party or child at issue, may “appoint
counsel on behalf of the child or children” if “the trial court
concludes that a child’s best interest is not being sufficiently
protected by the attorneys for the parties”); J.L. v. G.D., 422
N.J. Super. 487, 489 (Ch. Div. 2010) (stating that “where the
plaintiff is a minor and the defendant is an adult represented
by private counsel, the court shall appoint a licensed New
Jersey attorney to represent the minor’s interests at trial”);
State v. Ehrenberg, 284 N.J. Super. 309, 315 (Law. Div. 1994)
(stating that “[w]hen a bona fide doubt is raised as to the
competence of a mentally ill defendant to proceed pro
se, counsel should be appointed to aid in the competency
determination, as well as to assist the defendant in trying the
case”).
19
 Notwithstanding the prevalence of self-representation, a

litigant’s decision to proceed pro se may undermine his or her

position in the case, and substantially impede the progress of

the proceedings. Unprotected by skilled and vigilant counsel, a

self-represented litigant may fail to discern a pivotal question

of law, neglect to inquire about an important issue of fact or

omit a crucial objection. No matter how earnest and cooperative

a pro se litigant may be, his or her self-representation is

likely to protract the hearing and complicate the task of the

trial judge. An unrepresented litigant who cannot or will not

cooperate with the court can disrupt the proceedings, or derail

them entirely.

The use of standby counsel -- an effective solution to

these challenges -- has developed in the setting of criminal

cases in which defendants exercise their Sixth Amendment right

to represent themselves. “The [United States Supreme] Court

made explicit that trial judges may appoint standby counsel --

even over a defendant’s objection -- ‘to relieve the judge of

the need to explain and enforce basic rules of courtroom

protocol or to assist the defendant in overcoming routine

obstacles that stand in the way of the defendant’s achievement

of his own clearly indicated goals.’” State v. Davenport, 177

N.J. 288, 301 (2003) (quoting McKaskel v. Wiggins, 465 U.S. 168,

184, 104 S. Ct. 944, 954, 79 L. Ed. 2d 122, 137 (1984)).

20
 The participation of standby counsel is intended to

safeguard the fairness of the proceeding and further the

progress of the case. “Standby counsel is appointed for two

main purposes: to act as a ‘safety net’ to insure that the

litigant receives a fair hearing and to allow the trial

to proceed without the undue delays likely to arise when a

layperson represents his own case.” State v. Ortisi, 308 N.J.

Super. 573, 591 (App. Div.) (quoting United States v. Bertoli,

994 F.2d 1002, 1018-19 (3d Cir. 1993)), certif. denied, 156 N.J.

383 (1998).

When the self-represented party actively participates in

the case and cooperates with the court, the involvement of

standby counsel need not undermine the litigant’s autonomy in

directing his or her case. “A ‘pro se defendant must be allowed

to control the organization and content of his own defense, to

make motions, to argue points of law, to participate in voir

dire, to question witnesses, and to address the court and the

jury at appropriate points in the trial.’” State v. DuBois, 189

N.J. 454, 466 (2007) (quoting McKaskel, supra, 465 U.S. at 174,

104 S. Ct. at 949, 79 L. Ed. 2d at 131).

On the other side of the scale, a pro se
defendant has no absolute right to bar
“standby counsel’s unsolicited participation.”
Further, . . . standby counsel may “steer a
defendant through the basic procedures of
trial . . . even in the unlikely event that it

21
 somewhat undermines the pro se defendant’s
appearance of control over his own defense.”

[Ibid. (quoting McKaskel, supra, 465 U.S. at
176, 184, 104 S. Ct. at 950, 954, 79 L. Ed. 2d
at 132, 137).]

Standby counsel also serves to protect the integrity of the

proceeding when a litigant is uncooperative with the court and

opposing counsel, or refuses to proceed at all. As the United

States Supreme Court noted in Faretta, supra, “the trial judge

may terminate self-representation by a defendant who

deliberately engages in serious and obstructionist misconduct.”

422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at

581 n.46; see also State v. Wiggins, 158 N.J. Super. 27, 32-33

(App. Div. 1978) (“The right of the trial judge to control the

proceeding and insure a trial of a defendant which comports with

due process concepts is not at odds with the right of self-

representation recognized in Faretta . . . .”). When standby

counsel is appointed or retained to assist a party, a trial

court is in a position to conduct a fair and effective hearing,

even if the litigant refuses to cooperate or declines to attend.

This case thus arises in a judicial system accustomed to

self-representation by competent individuals in civil cases, and

experienced in the use of standby counsel to protect pro se

defendants in criminal proceedings.

V.

22
 With that context, we consider the issue at the heart of

this case: whether D.Y. may represent himself in his SVPA

commitment hearing, with standby counsel present and available

to offer assistance.

In the trial court, the Appellate Division, and this Court,

the question of D.Y.’s right to self-representation was analyzed

as an issue of constitutional law. As a general principle, “we

strive to avoid reaching constitutional questions unless

required to do so.” Comm. to Recall Menendez v. Wells, 204 N.J.

79, 95 (2010); see also Randolph Town Ctr., L.P. v. Cnty. of

Morris, 186 N.J. 78, 80 (2006) (noting that “[c]ourts should not

reach a constitutional question unless its resolution is

imperative to the disposition of litigation”). As the United

States Supreme Court held in Harris v. McRae, “if a case may be

decided on either statutory or constitutional grounds, [the]

Court, for sound jurisprudential reasons, will inquire first

into the statutory question.” 448 U.S. 297, 306-07, 100 S. Ct.

2671, 2683, 65 L. Ed. 2d 784, 798 (1980).

Notwithstanding the constitutional analysis undertaken by

the parties, the amici, and the courts that have considered

D.Y.’s assertion of a right of self-representation, this case

may be decided as a question of statutory interpretation. In

light of New Jersey’s historical recognition of a competent

litigant’s election to represent himself or herself in civil

23
proceedings, we consider whether the two provisions of the SVPA

that address representation in involuntary commitment hearings,

N.J.S.A. 30:4-27.29(c) and -27.31(a), bar a competent individual

from appearing pro se at an SVPA civil commitment hearing with

the assistance of standby counsel.

We construe these SVPA provisions in accordance with

established principles of statutory interpretation. The

Legislature requires that in the construction of its statutes,

“words and phrases shall be read and construed with their

context, and shall, unless inconsistent with the manifest intent

of the legislature or unless another or different meaning is

expressly indicated, be given their generally accepted meaning,

according to the approved usage of the language.” N.J.S.A. 1:1-

1. Our task is to ascertain the Legislature’s intent, as

reflected in its chosen language, giving the words of the

statute their generally accepted meaning. State v. Marquez, 202

N.J. 485, 499 (2010). We “effectuat[e] the legislative plan as

it may be gathered from the enactment read in full light of its

history, purpose and context.” Koch v. Dir., Div. of Taxation,

157 N.J. 1, 7 (1999) (internal quotation marks omitted).

We consider the SVPA’s provisions regarding the

representation of individuals facing involuntary commitment in

light of the purpose and procedural framework of the statute.

In enacting the SVPA in 1998, the Legislature found that the

24
existing involuntary commitment procedure, predicated on a

finding that the individual at issue is “mentally ill and

dangerous to self, others or property,” was inadequate as

applied to sexually violent predators. N.J.S.A. 30:4-27.25(b).

The Legislature deemed it “necessary to modify the involuntary

civil commitment process in recognition of the need for

commitment of those sexually violent predators who pose a danger

to others should they be returned to society.” N.J.S.A. 30:4-

27.25(c). The SVPA imposes upon the State the burden to prove

three elements by clear and convincing evidence:

(1) that the individual has been convicted
of a sexually violent offense; (2) that he
suffers from a mental abnormality or
personality disorder; and (3) that as a
result of his psychiatric abnormality or
disorder, “it is highly likely that the
individual will not control his or her
sexually violent behavior and will
reoffend.”

[In re Civil Commitment of R.F., 217 N.J.
152, 173 (2014) (internal citations omitted)
(quoting In re Commitment of W.Z., 173 N.J.
109, 130 (2002)).]

Involuntary commitment under the SVPA thus turns upon the

determination of “a mental abnormality or personality disorder”

that meets the statutory criteria. N.J.S.A. 30:4-27.26. The

SVPA incorporates a procedural framework for that determination.

Under N.J.S.A. 30:4-27.28(c), the Attorney General is authorized

to “initiate a court proceeding for involuntary commitment . . .

25
of an inmate who is scheduled for release upon expiration of a

maximum term of incarceration by submission to the court of two

clinical certificates for a sexually violent predator, at least

one of which is prepared by a psychiatrist.” N.J.S.A. 30:4-

27.28(c).6 After it receives the Attorney General’s submission,

the trial court immediately reviews it “to determine whether

there is probable cause to believe that the person is a sexually

violent predator.” N.J.S.A. 30:4-27.28(f). If the trial court

finds “probable cause to believe that the person is a sexually

violent predator in need of involuntary commitment,” it issues

an order of temporary commitment and sets a date for a final

hearing. N.J.S.A. 30:4-27.28(g).

The individual being considered for civil commitment must

be served with notice at least ten days prior to the hearing.

N.J.S.A. 30:4-27.30(a). The SVPA mandates that “[a]

psychiatrist on the person’s treatment team who has conducted a

personal examination of the person as close to the court hearing

date as possible, but in no event more than five calendar days

prior to the court hearing,” be present at the hearing to

testify “to the clinical basis for the need for involuntary

commitment as a sexually violent predator.” N.J.S.A. 30:4-

6
N.J.S.A. 30:4-27.28(a), (b) and (d) prescribe the procedure for
the Attorney General to initiate proceedings for the civil
commitment of individuals other than the inmates whose SVPA
commitment is addressed in N.J.S.A. 30:4-27.28(c).
26
27.30(b). The trial court may also permit testimony from the

“next-of-kin” of the person being considered for involuntary

commitment, N.J.S.A. 30:4-27.30(c), and “[o]ther members of the

person’s treatment team and any other witness with relevant

information offered by the” individual subject to SVPA

commitment, or by the Attorney General, N.J.S.A. 30:4-27.30(b).

The SVPA identifies five rights afforded to a person

subject to civil commitment as a sexually violent predator:

a. The right to be represented by counsel
or, if indigent, by appointed counsel;
b. The right to be present at the court
hearing unless the court determines
that because of the person’s conduct at
the court hearing the proceeding cannot
reasonably continue while the person is
present;
c. The right to present evidence;
d. The right to cross-examine witnesses;
and
e. The right to a hearing in camera.

[N.J.S.A. 30:4-27.31.]

The presentation of evidence in an SVPA hearing and the

cross-examination of the State’s witnesses are seldom simple

tasks. Given the statutory definition of a “sexually violent

predator,” expert witnesses in the fields of psychiatry and

psychology routinely play leading roles in SVPA commitment

hearings. See, e.g., R.F., supra, 217 N.J. at 161-67 (noting

that at SVPA hearing, State presented testimony of two experts,

one psychiatrist and one psychologist, and committee presented

27
one expert psychiatrist); In re Civil Commitment of J.M.B., 197

N.J. 563, 587 (2009) (noting that testimony of three expert

witnesses was presented at commitment hearing); W.Z., supra, 173

N.J. at 114 (identifying two experts (psychiatrist and

psychologist) who testified for State, and clinical psychologist

who testified on behalf of committee); In re Civil Commitment of

W.X.C., 407 N.J. Super. 619, 626 (App. Div. 2009) (stating that

two expert witnesses testified on behalf of State), aff’d, 204

N.J. 179 (2010); In re Civil Commitment of R.Z.B., 392 N.J.

Super. 22, 31-32 (App. Div.) (noting State’s presentation of

expert testimony given by psychologist and psychiatrist, and

committee’s presentation of three expert witnesses, including

psychologist, therapist, and psychiatrist), certif. denied, 192

N.J. 296 (2007); In re Civil Commitment of E.S.T., 371 N.J.

Super. 562, 567-68 (App. Div. 2004) (stating that trial court

considered testimony of psychologist employed at STU and

psychiatrist), certif. denied, 192 N.J. 295 (2007).

Accordingly, in a typical SVPA commitment hearing, counsel for

the individual subject to SVPA commitment must cross-examine the

experts whose testimony is offered by the State, and may also

present expert testimony on the committee’s behalf.

The Legislature acted to ensure that an individual who is

facing an SVPA hearing does not confront the State’s evidence

without the assistance of counsel. In addition to the right to

28
counsel included among the committee’s rights in N.J.S.A. 30:4-

27.31, a corresponding provision, N.J.S.A. 30:4-27.29(c), states

that “[a] person subject to involuntary commitment shall have

counsel present at the hearing and shall not be permitted to

appear at the hearing without counsel.” The language chosen by

the Legislature -- “shall have counsel present,” and “shall not

be permitted to appear” without such counsel -- can be found in

only one other statute, N.J.S.A. 30:4-27.12(d), which governs

the involuntary commitment of individuals outside of the SVPA.7

Significantly, the Legislature did not bar an individual

facing SVPA commitment from representing himself or herself, or

state that an individual may participate in the proceedings only

through counsel. The Legislature’s clear mandate -- expressed

in its affirmative requirement to have “counsel present,” and

its corresponding bar upon a committee’s appearance “without

counsel” -- is that an attorney for the individual be in

attendance and available to assist his or her client during the

entire hearing. Given this reasonable reading of the

7
This case does not raise, and we do not reach, the issue of
whether an adult who is subject to civil commitment pursuant to
N.J.S.A. 30:4-27.1 to -27.23, and who is determined to be
competent to represent himself or herself, may appear pro se in
a commitment hearing. See N.J.S.A. 30:4-27.12(d); R. 4:74-7(e)
(requiring that in civil commitment hearing, “[i]n no case shall
the patient appear pro se. The patient, through counsel, shall
have the right to present evidence and to cross-examine
witnesses.”). Our holding is limited to competent individuals
subject to involuntary commitment under the SVPA, N.J.S.A. 30:4-
27.24 to -27.38.
29
Legislature’s language, there is no need for us to reach D.Y.’s

argument that the SVPA deprives him of his rights under the

Sixth Amendment and principles of substantive due process by

preventing him from appearing pro se. Our interpretation

renders a constitutional adjudication avoidable because it is

unnecessary.

Accordingly, we hold that the plain language of N.J.S.A.

30:4-27.29(c) and -27.31(a) requires that there be one of two

alternative forms of representation at SVPA commitment hearings:

(1) full representation of the committee by counsel, or (2)

self-representation by an individual who is competent to conduct

his or her case, with standby counsel present throughout the

hearing and available to assist the committee if needed. The

text of both provisions is consistent with the committee’s

conduct of his or her own defense while advised by standby

counsel. In future SVPA hearings, including D.Y.’s hearing on

remand, competent SVPA committees may appear on their own

behalf, with retained or appointed standby counsel present to

assist them if necessary.

Given the compelling interests implicated by an SVPA

commitment hearing in which the committee appears pro se -- the

individual’s liberty, the public safety, and the integrity of

the judicial process -- we are confident that our experienced

30
trial judges will conduct these proceedings with caution and

care. We offer the following general guidelines.

First, any decision by a committee to waive the right to

full representation by counsel that N.J.S.A. 30:4-27.31(a)

affords to him or her should be clearly and unequivocally stated

to the trial court, and the court should ensure that the

committee’s waiver of his or her right to full representation by

counsel in his or her SVPA hearing is knowing, intelligent and

voluntary. In State v. Crisafi, this Court prescribed the

inquiry that trial courts should make when criminal defendants

invoke their right to self-representation. 128 N.J. 499, 511-12

(1992). Before proceeding with an SVPA hearing, the trial court

should conduct a similar inquiry to ensure that the committee is

aware of his or her statutory right to be fully represented by

counsel, and that he or she understands the importance of

representation by an attorney in such a complex case.

Second, the role that standby counsel will play in a given

SVPA hearing will be shaped by the specific issues confronting

the court. Under the SVPA, the trial court must determine

whether the individual “suffers from a mental abnormality or

personality disorder,” and whether, as a result of his or her

condition, the individual is highly likely to reoffend unless he

or she is confined. N.J.S.A. 30:4-27.26; accord R.F., supra,

217 N.J. at 173; W.Z., supra, 173 N.J. at 130. In a typical

31
hearing, the State will present the testimony of one or more

experts in psychiatry or psychology, and the committee’s case is

likely to be significantly buttressed if expert testimony is

presented on his or her behalf. It is the rare SVPA committee

who is capable of planning an effective cross-examination of an

expert testifying for the State, or who will know how to retain

and prepare an expert to counter the State’s evidence. The

skill and experience of standby counsel in planning and

conducting the hearing is critical to the fairness of the

proceeding. A competent individual, who represents himself or

herself at an SVPA hearing in compliance with the rules of

court, cannot be compelled to accept the advice of his or her

standby counsel. However, standby counsel serves as a resource,

explaining the court’s rulings and instructions to his or her

client, guiding the committee through each stage of the hearing,

and minimizing disruption and delay.

Finally, an SVPA committee appearing pro se should not be

permitted to obstruct the proceedings. An individual’s choice

to proceed unrepresented does not authorize him or her to wrest

control of the hearing from the trial court, or to undermine the

judge’s ability to make the important determination required by

the SVPA. As the United States Supreme Court held in Faretta,

supra, “[t]he right of self-representation is not a license to

abuse the dignity of the courtroom. Neither is it a license not

32
to comply with relevant rules of procedural and substantive

law.” 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed.

2d at 581 n.46; see also Wiggins, supra, 158 N.J. Super. at 33

(noting that “the right of self-representation, or the right to

be absent from the proceedings, is not a license to disrupt the

criminal calendar, or a trial in progress”). If a committee

flouts the court’s instructions, demonstrates disrespect for the

judge, counsel, court staff or a witness, or refuses to

participate in the hearing, the trial judge should take

appropriate action. See State v. Tedesco, 214 N.J. 177, 198

(2013) (noting our trial judges’ ability to control their

courtrooms and “maintain proper decorum”); Wiggins, supra, 158

N.J. Super. at 32 (stating that “trial judge . . . has an

absolute right to implement participation of effective counsel

for the criminal defendant who foolishly walks out of the

courtroom, desiring neither to participate nor to defend

himself”). In appropriate cases, the trial court may direct

standby counsel to assume full representation of the committee,

and resume the proceedings accordingly.

We recognize that our decision will impose an added burden

on civil commitment judges, who are already charged with the

challenging task of applying the SVPA. We anticipate that most

individuals confronting the prospect of civil commitment will

appreciate the strategic disadvantage of appearing pro se, and

33
will accept the full representation of counsel that the statute

affords. When a competent individual chooses the alternative of

self-representation, standby counsel will be available to

provide advice and guidance, and will assist the trial court in

conducting an SVPA commitment hearing that is thorough and fair.

VI.

The judgment of the Appellate Division is reversed, and the

matter is remanded to the trial court for a new hearing

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, and JUDGE RODRÍGUEZ (temporarily assigned) join
in JUSTICE PATTERSON’s opinion. JUDGE CUFF (temporarily
assigned) did not participate.

34
 SUPREME COURT OF NEW JERSEY

NO. A-42 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

IN THE MATTER OF THE

CIVIL COMMITMENT OF

D.Y. SVP 491-08

DECIDED July 24, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ----------------------- ---------------------
TOTALS 6

1