JOSEPH LIPP VS. ALFRED KANDELLANDREW SCHAEFER VS. NEW JERSEY STATE PAROLE BOARDÂ ANDREW SCHAEFER VS. ROBERT CHETIRKIN(L-0519-15, HUNTERDON COUNTY AND STATEWIDE, NEW JERSEYSTATE PAROLE BOARD, AND L-8411-15, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2261-15T2
A-2851-15T2
A-2852-15T2
JOSEPH LIPP,

Plaintiff-Appellant,

v.

ALFRED KANDELL, GARY M.
LANIGAN, and THE NEW JERSEY
STATE PAROLE BOARD,

Defendants-Respondents.
_________________________________

ANDREW SCHAEFER,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.
___________________________________

ANDREW SCHAEFER,

Plaintiff-Appellant,

v.

ROBERT CHETIRKIN, GARY M. LANIGAN,
and THE NEW JERSEY STATE PAROLE
BOARD,
 Defendants-Respondents.
___________________________________

Submitted October 11, 2017 – Decided October 23, 2017

Before Judges Fisher and Fasciale.

On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No. L-
0519-15, (A-2261-15), the New Jersey State
Parole Board, (A-2851-15) and Superior Court
of New Jersey, Law Division, Essex County,
Docket No. L-8411-15, (A-2852-15).

Murphy & Woyce, attorneys for appellants
(Michael C. Woyce and Joseph S. Murphy, on the
briefs).

Christopher S. Porrino, Attorney General,
attorney for respondents (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Christopher S. Josephson, Deputy Attorney
General, on the briefs).

PER CURIAM

The legal issue raised in these three appeals, which we have

consolidated for purposes of writing this opinion, is whether the

New Jersey State Parole Board (NJSPB) may adjudicate, in a parole-

revocation hearing, alleged parole violations by Andrew Schaefer

and Joseph Lipp (collectively defendants). In rejecting

defendants' contentions that such an adjudication deprives them

of bail and a jury trial, we emphasize that "[r]evocation [of

parole] deprives an individual, not of the absolute liberty to

which every citizen is entitled, but only of the conditional

liberty properly dependent on observance of special parole

2 A-2261-15T2
restrictions." Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct.

2593, 2600, 33 L. Ed. 2d 484, 494 (1972). The NJSPB adjudicated

the parole violations and afforded defendants the process that

parolees enjoy. We therefore decline to invalidate the NJSPB's

ability to adjudicate parole violations, which it has been using

predominantly since at least 2003.

I.

In 2012, Schaefer pled guilty to third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). The court sentenced

Schaefer to parole supervision for life (PSL). In 2013, the NJSPB

revoked his parole for failing to complete community service, for

using an electronic device to social network, and for possessing

an internet capable device. In 2014, the NJSPB re-released

Schaefer to PSL. Schaefer then violated his PSL again by

possessing internet devices, which the police discovered by

searching his residence in 2015.

Schaefer filed two appeals. He appealed from a March 2, 2016

final agency decision by the NJSPB revoking his parole and

returning him to prison for fourteen months for possessing internet

devices in 2015; and from a February 26, 2016 order dismissing his

verified complaint and denying his order to show cause challenging

the NJSPB's authority to adjudicate his 2015 parole violation.

3 A-2261-15T2
 On Schaefer's appeal from the NJSPB's final agency decision

revoking his parole and returning him to prison, he raises the

following arguments:

POINT I
THE BOARD ERRED IN NOT FINDING THAT THE
LEGISLATURE'S GRANT OF AUTHORITY TO THE
DIVISION OF PAROLE TO SENTENCE INDIVIDUALS TO
ADDITIONAL TERMS OF IMPRISONMENT UNDER
N.J.S.A. 2C:43-6.4(d) IS AN UNCONSTITUTIONAL
DELEGATION OF AUTHORITY, VIOLATING, INTER
ALIA, THE SEPARATION OF POWERS CLAUSE, N.J.
Const., [a]rt. III, [¶] 1 (1947).

POINT II
THE BOARD ERRED IN NOT FINDING THAT PAROLE
SUPERVISION FOR LIFE IS UNCONSTITUTIONAL
BECAUSE IT IS A VIOLATION OF DEFENDANT'S RIGHT
TO A JURY TRIAL; HIS RIGHT TO A PUBLIC HEARING;
HIS RIGHT TO THE PRESUMPTION OF INNOCENCE AND
AN IMPARTIAL ARBITER.

POINT III
THE DECISION OF THE FULL BOARD OF PAROLE TO
REVOKE SCHAEFER'S PSL TERM AND SENTENCE HIM
TO A FOURTEEN MONTH PRISON SENTENCE WAS
ARBITRARY, CAPRICIOUS, AND UNREASONABLE AS THE
BOARD FAILED TO MAKE THE NECESSARY FINDINGS
ENUNCIATED IN HOBSON [v.] NEW JERSEY STATE
PAROLE BOARD, 435 N.J. Super. 377 (App. Div.
2014) AND THE DECISION MUST BE REVERSED.

POINT IV
THE COURT ERRED IN NOT FINDING THAT SCHAEFER
IS ENTITLED TO GREATER PROTECTIONS THAN THOSE
GRANTED IN MORRISSEY [v.] BREWER, AS HE HAS A
GREATER LIBERTY INTEREST THAN AN ORDINARY
PAROLEE AS HE HAS COMPLETED HIS JAIL TERM AND
CAN ONLY BE JAILED UPON A FINDING OF NEW FACTS
MAKING UP A NEW OFFENSE.

4 A-2261-15T2
 On Schaefer's appeal from the order dismissing his verified

complaint, which sought an order from the judge declaring that the

NJSPB's revocation-hearing process deprived him of a jury trial

and bail, he raises the following arguments:

POINT I
THE TRIAL COURT ERRED IN NOT FINDING THAT THE
LEGISLATURE'S GRANT OF AUTHORITY TO THE
DIVISION OF PAROLE TO SENTENCE INDIVIDUALS TO
ADDITIONAL TERMS OF IMPRISONMENT UNDER
N.J.S.A. 2C:43-6.4(d) IS AN UNCONSTITUTIONAL
DELEGATION OF AUTHORITY, VIOLATING, INTER
ALIA, THE SEPARATION OF POWERS CLAUSE, N.J.
Const., [a]rt. III, [¶] 1 (1947).

POINT II
THE [NJSPB] ERRED IN NOT FINDING THAT PAROLE
SUPERVISION FOR LIFE IS UNCONSTITUTIONAL
BECAUSE IT IS A VIOLATION OF DEFENDANT'S RIGHT
TO A JURY TRIAL; HIS RIGHT TO A PUBLIC HEARING;
HIS RIGHT TO THE PRESUMPTION OF INNOCENCE AND
AN IMPARTIAL ARBITER.

POINT III
THE COURT ERRED IN NOT FINDING THAT SCHAEFER
IS ENTITLED TO GREATER PROTECTIONS THAN THOSE
GRANTED IN MORRISSEY v. BREWER, AS HE HAS A
GREATER LIBERTY INTEREST THAN AN ORDINARY
PAROLEE AS HE HAS COMPLETED HIS JAIL TERM AND
CAN ONLY BE JAILED UPON A FINDING OF NEW FACTS
MAKING UP A NEW OFFENSE.

We affirm as to Schaefer's two appeals.

II.

In 2013, Lipp pled guilty to third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). The court sentenced Lipp

to PSL. Lipp violated his PSL by residing at an unapproved

5 A-2261-15T2
residence, leaving New Jersey without permission, using alcohol,

and frequenting establishments whose primary purpose is to sell

alcohol. In August 2015, the NJSPB revoked his parole and returned

Lipp to prison for twelve months. Lipp then filed a declaratory

judgment complaint challenging the NJSPB's ability to revoke his

parole after conducting a revocation hearing.

On January 11, 2016, a judge entered an order dismissing

Lipp's declaratory judgment complaint pursuant to Rule 4:6-2(e).

The judge concluded that Lipp's recourse was solely to appeal to

us from the NJSPB's decision to revoke Lipp's parole and return

him to prison. Lipp appealed from the January 11, 2016 order, and

raised the following arguments:

POINT I
THE TRIAL COURT ERRED IN FINDING IT LACKED
JURISDICTION TO REVIEW THE CONSTITUTIONALITY
OF N.J.S.A. 2C:43-6.4(d) AS APPLIED TO LIPP.

POINT II
THE TRIAL COURT ERRED IN NOT FINDING THAT THE
LEGISLATURE'S GRANT OF AUTHORITY TO THE
DIVISION OF PAROLE TO SENTENCE INDIVIDUALS TO
ADDITIONAL TERMS OF IMPRISONMENT UNDER
N.J.S.A. 2C:43-6.4(d) IS AN UNCONSTITUTIONAL
DELEGATION OF AUTHORITY, VIOLATING, INTER
ALIA, THE SEPARATION OF POWERS CLAUSE, N.J.
Const., [a]rt. III, [¶] 1 (1947).

POINT III
THE TRIAL COURT ERRED IN NOT FINDING THAT
PAROLE SUPERVISION FOR LIFE IS
UNCONSTITUTIONAL BECAUSE IT IS A VIOLATION OF
DEFENDANT'S RIGHT TO A JURY TRIAL; HIS RIGHT
TO A PUBLIC HEARING; HIS RIGHT TO THE

6 A-2261-15T2
 PRESUMPTION OF INNOCENCE AND AN IMPARTIAL
ARBITER.

POINT IV
LIPP[] IS ENTITLED TO GREATER PROTECTIONS THAN
THOSE GRANTED IN MORRISSEY v. BREWER, AS HE
HAS A GREATER LIBERTY INTEREST THAN AN
ORDINARY PAROLEE AS HE HAS COMPLETED HIS JAIL
TERM AND CAN ONLY BE JAILED UPON A FINDING OF
NEW FACTS MAKING UP A NEW OFFENSE.

We conclude that Lipp properly filed his verified complaint

challenging the NJSPB revocation procedure, but we uphold the

dismissal of Lipp's complaint primarily because we have determined

that Lipp received the process due to parolees facing parole

violations.

III.

We begin by addressing defendants' primary contentions that

the NJSPB erroneously adjudicated their PSL violations in an

administrative revocation hearing. Their main point is that a PSL

violation constitutes a third-degree offense, and therefore the

State should have charged them with committing the new offenses

of violating their PSL, and then indict them for those crimes.

Defendants maintain that if the State had followed that procedure,

instead of using an administrative revocation hearing, then they

would have received their right to bail, a jury trial, and other

due process protections afforded to defendants in criminal

proceedings.

7 A-2261-15T2
 The question presented is one of law and therefore our review

is de novo. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366,

378 (1995).

The crux of defendants' challenge requires us to review

administrative procedures promulgated pursuant to the statutory

scheme of PSL. Courts must impose PSL as part of a sentence for

individuals convicted of certain sex offenses. N.J.S.A. 2C:43-

6.4(a);1 State v. Perez, 220 N.J. 423, 436-38 (2015). PSL

commences upon release from incarceration and "[p]ersons serving

a special sentence of [PSL] shall remain in the legal custody of

the Commissioner of Corrections, shall be supervised by the

Division of Parole of the State Parole Board," and subject to

other stated statutory conditions as "appropriate to protect the

public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). See

J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 336-37 (App.

Div. 2013), certif. denied, 217 N.J. 296 (2014). A court "may not

suspend imposition of the special sentence of [PSL.]" N.J.S.A.

2C:43-6.4(b). PSL is "deemed to be a term of life imprisonment."

N.J.S.A. 2C:43-6.4(b).

1
In 2003, the Legislature amended N.J.S.A. 2C:43-6.4, removed
references in the statute to community supervision for life (CSL),
and substituted PSL for CSL. L. 2003, c. 267, § 1.

8 A-2261-15T2
 Pertinent to the NJSPB's authority to conduct revocation

hearings, N.J.S.A. 2C:43-6.4(b) states:

If the defendant violates a condition of a
special sentence of [PSL], the defendant shall
be subject to the provisions [in N.J.S.A.
30:4-123.60 to -123.63 and N.J.S.A. 30:4-
123.65], and for the purpose of calculating
the limitation on time served [set forth in
N.J.S.A. 30:4-123.65.]. . . Nothing contained
in this subsection shall prevent . . . the
[NJSPB] from proceeding under the provisions
of [N.J.S.A. 30:4-123.60 to -123.63 and
N.J.S.A. 30:4-123.65] against any such
defendant for a violation of any conditions
of the special sentence of [PSL], including
the conditions imposed by the court pursuant
to N.J.S.[A.] 2C:45-1. In any such proceeding
by the [NJSPB], the provisions of [N.J.S.A.
30:4-123.51b] authorizing revocation and
return to prison shall be applicable to such
a defendant, notwithstanding that the
defendant may not have been sentenced to or
served any portion of a custodial term for
conviction of an offense enumerated in
subsection a. of this section.

Subsection (b) therefore authorizes the NJSPB, in its capacity of

supervising an individual's compliance with the conditions of a

special sentence of PSL, to revoke PSL and return a violator to

prison.

Defendants maintain that a PSL violation constitutes a new

crime, and therefore parole revocation hearings deprive them of

due process enjoyed by individuals so charged. To be sure,

N.J.S.A. 2C:43-6.4(d) states:

9 A-2261-15T2
 A person who violates a condition of a special
sentence of [PSL] . . . without good cause is
guilty of a crime of the third[-]degree.
Notwithstanding any other law to the contrary,
a person sentenced pursuant to this subsection
shall be sentenced to a term of imprisonment,
unless the court is clearly convinced that the
interests of justice so far outweigh the need
to deter this conduct and the interest in
public safety that a sentence to imprisonment
would be a manifest injustice.

Therefore, if someone violates PSL without good cause, the State

can charge that person with a third-degree crime, and a presumption

of imprisonment attaches to that offense. Here, the State did not

charge defendants with committing a new crime pursuant to

subsection (d), which specifically addresses whether the NJSPB can

adjudicate, not a new crime, but rather, a PSL violation.

Nothing in this subsection shall preclude
subjecting a person who violates any condition
of a special sentence of [PSL] to the
provisions of [N.J.S.A. 30:4-123.60 to -123.63
and N.J.S.A. 30:4-123.65] pursuant to the
provisions of [N.J.S.A. 30:4-123.51b].

[N.J.S.A. 2C:43-6.4(d).]

N.J.S.A. 30:4-123.51b(c) addresses the duration of re-

imprisonment, and states in part that

[i]f the parolee violates a condition of a
special sentence of [PSL], the parolee shall
be subject to the provisions of [N.J.S.A.
30:4-123.60 to -123.63 and N.J.S.A. 30:4-
123.65], and may be returned to prison. If
revocation and return to custody are desirable
pursuant to the provisions of [N.J.S.A. 30:4-
123.63], the appropriate board panel shall

10 A-2261-15T2
 revoke parole and return the parolee to prison
for a specified length of time between
[twelve] and [eighteen] months[.]

That is exactly what happened here.

We have no difficulty rejecting defendants' assertions that

they are entitled to a jury trial to consider alleged parole

violations, even when they might result in custodial confinement.

"[T]he revocation of parole is not part of a criminal prosecution

and thus the full panoply of rights due a defendant in such a

proceeding does not apply to parole revocations." Morrissey,

supra, 408 U.S. at 480, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494.

The United States Supreme Court stated, "there is no thought to

equate [a parole revocation hearing] to a criminal prosecution in

any sense." Id. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d at 499.

Nevertheless, parolees, like defendants, enjoy due process

protections. They are entitled to "the conditional liberty

properly dependent on observance of special parole restrictions."

Id. at 480, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494. The United

States Supreme Court identified the following process due during

parole revocation proceedings:

(a) [W]ritten notice of the claimed violations
of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to
confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds

11 A-2261-15T2
 good cause for not allowing confrontation);
(e) a "neutral and detached" hearing body such
as a traditional parole board, members of
which need not be judicial officers or
lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and
reasons for revoking parole.

[Id. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d
at 499.]

Accordingly, due process challenges to the parole revocation

process have been put to rest. See Hobson v. N.J. State Parole

Bd., 435 N.J. Super. 377, 382 (App. Div. 2014) (stating and

thoroughly detailing how the Legislature has "codified procedures

for revocation that require the Board to afford persons facing

revocation of release status significant procedural protections").

Indeed, "the State has a strong interest in assuring that parolees

adhere to the conditions of their parole." J.B., supra, 433 N.J.

Super. at 337.

Under a previous version of N.J.S.A. 2C:43-6.4, prior to the

2003 amendments, an offender on CSL was "supervised as if on

parole." L. 1994, c. 130, § 2. Any violation of one or more

conditions of CSL was a fourth-degree offense. Ibid. Prior to

2003, "a violation of CSL [was] punishable only as a crime; the

[NJSPB could not] return a defendant to prison through the parole-

revocation process." Perez, supra, 220 N.J. at 441. However, the

2003 statutory amendments clarified that PSL is penal and a

12 A-2261-15T2
lifetime sentence of parole. Since the Legislature replaced CSL

with PSL in 2003, the State has not been required to charge all

individuals who violate the conditions of their PSL. The plain

text of N.J.S.A. 2C:43-6.4(d) does not "preclude subjecting a

person who violates any condition of a special sentence of [PSL]"

to the regular parole revocation process.

Even though several opportunities have existed, the

Legislature and the New Jersey Supreme Court have not eliminated

the ability of the NJSPB to adjudicate PSL violations. In 2014,

the Legislature amended N.J.S.A. 2C:43-6.4(d) by raising a PSL

violation from a fourth-degree to a third-degree. L. 2013, c.

214, § 4 (eff. July 1, 2014). At that time, the Legislature did

not alter the administrative procedures promulgated pursuant to

the statutory scheme of PSL. And in 2015, our Court specifically

acknowledged that

[a] violation of PSL may be prosecuted as a[n]
. . . offense, N.J.S.A. 2C:43-6.4(d), but it
may also be treated as a parole violation,
N.J.S.A. 2C:43-6.4(b). The State conceded at
oral argument that the almost-universal
practice since the enactment of the 2003
amendment is to revoke a defendant's parole
and return him to prison.

[Perez, supra, 220 N.J. at 441.]

Here, the State did not charge defendants with a new crime

under N.J.S.A. 2C:43-6.4(d); they were noticed of a parole

13 A-2261-15T2
violation. Had defendants been charged with a criminal offense

under N.J.S.A. 2C:43-6.4(d), it would require judicial

adjudication. However, parole revocation for violating parole

conditions, the consequence of which may result in return to

custody pursuant to N.J.S.A. 30:4-123.51b(c), is an authorized and

constitutional administrative function of the NJSPB. The due

process protections delineated in Morrissey are provided in the

regulations governing the parole revocation process, which applies

to those sentenced to PSL. See N.J. State Parole Bd. v. Byrne,

93 N.J. 192, 208-12 (1983) (defining due process protections

required in parole revocation hearings under the State

Constitution).

We reject defendants' contentions that return to prison for

violation of the conditions of PSL equates to an imposition of

additional jail time without a jury finding, in violation of

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000). PSL is a life parole sentence. It does not end

when an offender concludes the maximum jail or probationary

sentence also imposed for the criminal conviction. Moreover, the

PSL portion of the sentence begins upon release from incarceration.

N.J.S.A. 2C:43-6.4(b).

Apprendi requires "[a]ny fact (other than a prior

conviction)[,] which is necessary to support a sentence exceeding

14 A-2261-15T2
the maximum authorized by the facts established by a plea of guilty

or a jury verdict[, to] be admitted by the defendant or proved to

a jury beyond a reasonable doubt." United States v. Booker, 543

U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621, 650 (2005).

PSL is part of a defendant's original sentence. PSL mandates

lifetime parole supervision, which by its nature restrains a

defendant's liberty and includes the possibility of re-

incarceration if a parolee violates PSL. No additional facts can

lengthen the sentence. The facts leading to defendants' PSL

requirements were established when the PSL sentence was initially

imposed, making Apprendi inapposite.

We conclude that the parole revocation provisions in N.J.S.A.

2C:43-6.4(b), when read in conjunction with the Parole Act,

N.J.S.A. 30:4-123.59(b), along with the PSL statute and its

regulations, N.J.A.C. 10A:71-6.12, do not violate required

constitutional due process protections delineated in Morrissey.

Therefore, any attempt to characterize parole revocation

proceedings as a new crime, mandating bail and a jury trial, must

fail as a matter of law.

IV.

We now address Schaefer's argument that there are

insufficient facts to support the findings of the NJSPB, and that

15 A-2261-15T2
the agency's final decision is therefore arbitrary, capricious,

and unreasonable.

Our review of administrative decisions by the NJSPB is limited

and "grounded in strong public policy concerns and practical

realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200

(2001). "The decision of a parole board involves 'discretionary

assessment[s] of a multiplicity of imponderables . . . .'" Id.

at 201 (alteration in original) (quoting Greenholtz v. Inmates of

Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105,

60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the

case with other administrative agencies, the [NJSPB's] decision-

making function involves individualized discretionary appraisals."

Ibid. Consequently, we may reverse the NJSPB's decision only if

it is "arbitrary and capricious." Ibid.

We do not disturb the NJSPB's factual findings if they "'could

reasonably have been reached on sufficient credible evidence in

the whole record.'" Id. at 172 (quoting Trantino v. N.J. State

Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)); see also In re

Taylor, 158 N.J. 644, 657 (1999) (indicating that a court must

uphold an agency's findings, even if "it would have reached a

different result[,]" so long as "sufficient credible evidence in

the record" exists to support the agency's conclusions). The

burden is on the challenging party to show that the NJSPB's actions

16 A-2261-15T2
were "arbitrary, unreasonable or capricious . . . ." Bowden v.

Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993),

certif. denied, 135 N.J. 469 (1994).

Applying this standard, we see no basis to disturb the NJSPB's

decision. The NJSPB's determination is supported by ample

evidence, including, but not limited to, officers discovering

internet accessible devices in Schaefer's residence; Schaefer

admitting that one of the devices belonged to him; Schaefer

providing the PIN code for that device; and the NJSPB affording

him a parole revocation hearing before a neutral and detached

hearing officer.

We have considered defendants' remaining contentions and

conclude that they are without sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

17 A-2261-15T2