SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4419-97T2
A-4638-97T2
COUNTY OF HUDSON,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT
OF LAW and PUBLIC SAFETY, JUVENILE
JUSTICE COMMISSION, PAUL DONNELLY,
EXECUTIVE DIRECTOR OF THE JUVENILE
JUSTICE COMMISSION, STATE OF NEW
JERSEY, DEPARTMENT OF CORRECTIONS,
PETER G. VERNIERO, ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY,
Defendants-Respondents.
_________________________________________
COUNTY OF CAMDEN,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT
OF LAW and PUBLIC SAFETY, JUVENILE
JUSTICE COMMISSION, PAUL DONNELLY,
EXECUTIVE DIRECTOR OF THE JUVENILE
JUSTICE COMMISSION, STATE OF NEW
JERSEY, DEPARTMENT OF CORRECTIONS,
PETER G. VERNIERO, ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY,
Defendants-Respondents.
_________________________________________
Argued: June 16, 1999 - February 10, 2000
Stayed by the Order of June 30, 1999 until end
of Legislative session.
Resubmitted: January 11, 2000 at the end of
208th Legislative session - Decided:
Before Judges King, Wallace and Newman.
On appeal from the Juvenile Justice
Commission.
Michael A. Cifelli, Assistant Hudson County
Counsel and Donna M. Whiteside, Assistant
Camden County Counsel, argued the cause for
appellants (Francis DeLeonardis, Hudson County
Counsel and Robert G. Millenky, Camden County
Counsel, attorneys; Mr. Cifelli and Ms.
Whiteside, on the joint brief).
John Franzini, Deputy Attorney General, argued
the cause for respondents (John J. Farmer,
Jr., Attorney General, attorney; Joseph L.
Yannotti, Assistant Attorney General, of
counsel; Mr. Franzini, on the brief).
The opinion of the court was delivered by
KING, P.J.A.D.
This case involves the validity of a regulation promulgated by the Juvenile Justice Commission providing for a forty-five-day transfer period for State-sentenced juveniles housed in county correctional facilities and detention centers. The Juvenile Justice Commission (JJC) was created on December 15, 1995 by the Legislature as a result of recommendations of the Governor's Advisory Council on Juvenile Justice. 30 N.J.R. 871 (March 2, 1998). Prior to establishing the JJC, three state agencies, the Department of Corrections, the Department of Law and Public Safety, and the Department of Human Services, were responsible for operating the juvenile justice system. N.J.S.A. 52:17B-169d. The JJC was created, pursuant to N.J.S.A. 52:17B-170a, "in, but not of the Department of Law and Public Safety" because the legislature found the most efficient and effective use of resources required fixing responsibility for a comprehensive juvenile justice program in a single State agency. N.J.S.A. 52:17B-169j.
In creating the JJC, the Legislature established a single State agency "responsible for developing a Statewide plan for effective provision of juvenile justice services and sanctions at the State, county and local level. . . ." N.J.S.A. 52:17B-169k. Pursuant to N.J.S.A. 52:17B-176 titled "Juveniles, facilities and programs to be transferred to Juvenile Justice Commission," the Legislature gave the JJC all the powers and responsibilities previously held by the three agencies which had been responsible for the juvenile justice system.
The Legislature also charged the JJC to establish standards (1) for the "care, treatment, government, and discipline of juveniles" adjudicated delinquent, pursuant to N.J.S.A. 52:17B 170e(6); (2) to assume the custody and care of juveniles committed to it by law pursuant to N.J.S.A. 52:17B-170e(7); (3) to formulate and adopt standards and rules for the efficient running of the Commission and its facilities pursuant to N.J.S.A. 52:17B-170e(14); and (4) to promulgate rules and regulations necessary to effectuate the purposes of the Commission, N.J.S.A. 52:17B-170e(22). See County of Hudson v. Department of Corrections, 152 N.J. 60, 67 (1997). In the JJC's enabling legislation, the Legislature provided for the continuation of any regulations promulgated by the agencies other than Law and Public Safety previously responsible for the juvenile justice system. N.J.S.A. 52:17B-177b(3) provides as follows:
All rules and regulations promulgated by
the Commissioner of Corrections or the
Commissioner of Human Services pertaining to
functions, powers, duties and authority
transferred to the commission pursuant to
[52:17B-176] shall be considered rules or
regulations of the commission and, as such,
shall remain in full force and effect until
expiration or modification by the commission
in accordance with law.
At that time, pursuant to N.J.A.C. 10:19-4.2(d), the State was
required to transfer all State-sentenced juveniles to the intake
unit of the New Jersey Training School within three-days after the
Department of Corrections was notified about a sentenced juvenile
offender. In many counties the State did not comply with this
three-day transfer regulation.
On May 2, 1997 we decided County of Hudson v. Department of
Corrections,
300 N.J. Super. 389, 391 (App. Div. 1997), in which
the Counties of Hudson and Camden had filed suit against the State
of New Jersey, Juvenile Justice Commission (JJC), for its failure
to remove State-sentenced juvenile offenders from County Youth
Detention Centers within three days after sentencing pursuant to
N.J.A.C. 10:19-4.2. We held that N.J.A.C. 10:19-4.2 was a valid
regulation; we found there was no legitimate reason for the State
to continue its noncompliance with the regulation, and we ordered
the State to remove State-sentenced juveniles within the three-day
time period. Id. at 394. On December 10, 1997, in County of
Hudson v. Department of Corrections,
152 N.J. 60, 65 (1997), the
Supreme Court affirmed our decision and upheld the validity and
enforceability of the transfer regulation, N.J.A.C. 10:19-4.2.See footnote 11
On February 3, 1998 the Executive Board of the JJC, including
Peter Verniero, then the Attorney General and Chair of the JJC,
adopted, on an emergency basis pursuant to N.J.S.A. 52:14B-4c and
N.J.S.A. 52:17B-170, a recodification and amendment of N.J.A.C.
10:19-4.2(d) and (e) as N.J.A.C. 13:90-4.2, in effect, a new
regulation. The recodification with amendment and the new
regulation provided forty-five days to transfer State-sentenced
juveniles from county detention facilities to a State facility.
On April 2, 1998 the JJC Executive Board adopted the proposed
recodification with amendment of N.J.A.C. 10:19-4.2(d) and (e) as
N.J.A.C. 13:90-4.2 which provided for a forty-five-day transfer
period. On April 3, 1998 the recodification with amendment and the
new rule were filed with the Office of Administrative Law and
became effective.
On April 8, 1998 Hudson County filed a notice of appeal
challenging the recodification with amendment and the new
regulation. R. 2:2-3(a)(2). On April 15, 1998 Camden County filed
a similar notice of appeal. We consolidated the appeals.
Hudson and Camden Counties (the Counties) raise three claims on this appeal: (1) N.J.A.C. 13:90-4.2 is an invalid regulation which illegally shifts the burden of housing State-sentenced juveniles to the counties; (2) N.J.A.C. 13:90-4.2 exceeds the statutory authority set forth in N.J.S.A. 52:17B-170 and conflicts with N.J.S.A. 2A:44.1 and N.J.S.A. 2A:4A-37, and (3) N.J.A.C. 13:90-4.2 is unconstitutional and violates due process rights of sentenced juvenile offenders. We find the new regulation allowing up to forty-five days for transfer to a State facility valid and within the rule-making authority of the JJC.
This is the background of this dispute between the State and the appellant counties. After we decided County of Hudson v. Department of Corrections on May 2, 1997, the JJC proposed a new version of N.J.A.C. 13:90-4.2, eliminating the three-day transfer rule and providing a sixty-day transfer period for 1997, a forty five-day transfer period for 1998 and a thirty-day transfer period for 1999 and after. 29 N.J.R. 1667-1668 (May 5, 1997). On June 2, 1997 Mark J. Lonetto, the Camden County Administrator and Treasurer, wrote to Paul Donnelly, Executive Director of the JJC. In this correspondence, Lonetto stated the attempt on the part of the State to shift the burden of caring for State-sentenced juveniles on Camden County was a "blatant" violation of the existing statutory mandates. Lonetto's correspondence included an affidavit of Mary Previte, Administrator of the Camden County Youth Center. In the affidavit Previte stated that the overcrowding of the Youth Center had resulted in assaults and injury to vulnerable juveniles within the Center. One example occurred where more powerful juveniles sodomized a younger, vulnerable juvenile. Previte stated that overcrowding combined with the mixture of State-sentenced and non-sentenced juveniles was "dangerous." Previte also stated the Youth Center in Camden County was beyond its capacity: designed to hold about thirty-seven juveniles, about sixty-six were in the facility as of November 21, 1996. Previte also stated the prolonged overcrowding of the County Youth Center associated with State-sentenced juveniles created institutional tension resulting in fighting among the juveniles and a sense of fear in the staff.
On December 10, 1997 in County of Hudson v. Department of Corrections the Supreme Court affirmed our judgment and upheld the validity and enforceability of the extant transfer regulation, N.J.A.C. 10:19-4.2. Except for the Counties of Hudson and Camden, the Court stayed its judgment for sixty days from the date of the decision. This enabled the State to take measures to comply with the three-day time-period transfer regulation, unless the regulation was modified or superseded by a valid amendment. The Court stated that, although the State was required to comply with its own regulation, nothing foreclosed the State from amending, changing or repealing its regulations, especially in response to changing conditions, 152 N.J. at 72, pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, which provides the manner in which an agency can amend an existing regulation. Ibid. The Court also suggested that the State could adopt an emergency regulation upon the finding of "imminent peril to the public health, safety, or welfare" pursuant to N.J.S.A. 52:14B-4c. Id. at 73. The Court said that an emergency regulation would be effective for only a limited time period but that it would give the JJC more time to address the problem. Ibid. Another alternative proposed by the Court was for the State to enter into agreements with the counties to prevent overcrowding, pursuant to N.J.S.A. 2A:4A-44.1. Ibid.
On February 3, 1998 the Executive Board, including Peter Verniero, as Attorney General and Chair, adopted, on an emergency basis pursuant to N.J.S.A. 52:14B-4c and N.J.S.A. 52:17B-170, a recodification and amendment of N.J.A.C. 10:19-4.2(d) and (e), N.J.A.C. 13:90-4.2. 30 N.J.R. 871 (March 2, 1998). Emergency regulation N.J.A.C. 13:90-4.2, in pertinent part, provided:
(a) Consistent with the purpose set forth
by the Legislature in the juvenile justice
reform legislation to reduce overcrowding at
all State and county juvenile facilities, a
juvenile who receives a State sentence of
incarceration shall be transported to the
juvenile intake unit at the New Jersey
Training School for Boys no later than 45 days
after the Juvenile Justice Commission receives
notification, in the form of a signed
commitment order and a presentence or
predisposition report, from the county where
the juvenile has been sentenced. Subject to
the availability of appropriations, the
Commission also shall provide a Commission
determined per diem rate to the counties for
State-committed juveniles held in the county
detention centers from the 16th day after
receipt by the Commission of the signed
commitment order and presentence or
predisposition report for each State-sentenced
juvenile. The per diem rate shall be
established by the Commission from time to
time. The 45 days shall be exclusive of the
date on which the Commission receives the
appropriate and necessary documentation.
[
30 N.J.R. 871 (March 2, 1998)(emphasis
added).]
The emergency status of the recodification, amendment and new
rule was set forth in a "Certification of Imminent Peril" by
Governor Whitman and a "Statement of Imminent Peril" by Peter
Verniero, as Attorney General and Chair, Juvenile Justice
Commission. The Attorney General's "Statement of Imminent Peril"
said that unless the JJC implemented the emergency regulation,
compliance with the original three-day rule would have been
necessary and would create "operational instability, and have a
negative effect upon the safety and security of staff, the
juveniles, and the public, thereby generating the imminent peril
sought to be avoided by the emergency adoption of this rule." The
Attorney General's statement claimed there were, at that time,
ninety-two State-sentenced juveniles in county detention centers.
The Attorney General stated the JJC has resources available for
medical and psychological evaluations for twenty to twenty-five
juvenile admissions per week but an increase to ninety-two
admissions, coupled with adherence to the application of a three
day rule, would strain the classification process and harm the
juveniles at the State level. The Attorney General further stated
the physical plant of the Training School could accommodate a
capacity of 404 but the daily population was about 490. He
concluded the risk of institutional instability escalates as the
population of the institution increases, creating a greater
potential for incidents among juveniles and between juveniles and
staff, again at the State level. The Attorney General concluded by
claiming the forty-five-day holding period could provide
appropriate placement for each individual offender while addressing
the issue of State overcrowding.
On February 23, 1998 Camden County Counsel Robert Millenky
wrote to JJC Director Donnelly stating the emergency rule proposed
by the JJC violated N.J.S.A. 2A:4A-37c,See footnote 22 providing no juvenile may
be placed in a detention facility which has reached its maximum
capacity; N.J.S.A. 2A:4A-43c(2),See footnote 33 requiring an agreement between
the JJC and the County for such placement; and N.J.S.A. 2A:4A
44.1,See footnote 44 providing the JJC may enter into an agreement with the
county to place State-sentenced juvenile offenders in county
facilities. Millenky's letter also asserted that the forty-five
day regulation was an ill-advised State attempt to shift the
statutory housing responsibility of juveniles from the State to the
counties. On February 27, 1998 Director Donnelly sent a response
to Millenky's letter stating Millenky's assertions that the State
was shifting the burden of housing State-sentenced juveniles on the
county were without merit. Donnelly stated that there was no
violation of N.J.S.A. 2A:4A-37c as this statute applied to the
counties. Donnelly also stated the emergency rule did not provide
for the placement of State-sentenced juveniles in the county
facilities but rather described a "transfer" period. Donnelly
stated that N.J.S.A. 2A:4A-43c(2) was not violated by the
regulation because this "agreement" provision did not conflict with
the regulation which addressed the transfer of State-sentenced
juveniles from county detention facilities.
On March 11, 1998 Director Donnelly also wrote to Mary Previte
stating that based on her own correspondence (a letter dated
February 10, 1998 from Previte to Donnelly), State-sentenced
juveniles comprised only a small portion of the total population at
the Camden County Youth Center. Donnelly further claimed that
since the effective date of the emergency regulation, the State had
transferred twenty juveniles from the Camden County Youth Center
within thirteen days or less. Donnelly also asserted Camden County
has had a long-standing overcrowding condition which has been
exacerbated by the county's failure to take advantage of
alternative programs such as In-Home Detention Program.
On March 20, 1998 Director Donnelly received additional
correspondence from Abraham Antun, Acting Administrator of Hudson
County. In the letter, Antun stated the regulation promulgated by
the JJC would result in an added financial burden on Hudson County
and make it difficult for the county to educate detained but non
adjudicated juveniles. Antun also stated the regulation would
diminish the county's ability to provide counselling, recreational,
religious, and general rehabilitative services for juveniles.
Antun said the forty-five-day transfer regulation was a
circumvention of the legislative prohibition of shifting the burden
of housing State-sentenced juveniles from State to county
facilities.
On March 24, 1998 Mary Previte contacted Director Donnelly by
letter in response to Donnelly's March 11, 1998 letter. Previte
stated Donnelly's calculation of State-sentenced juveniles in
Camden County's Youth Center was an average over several years and
did not accurately reflect present conditions. Previte also stated
Camden County was already taking significant steps to reduce its
population in the Youth Center and that inadequate State services
in the areas of the Division of Youth and Family Services (DYFS)
and probation services were a large part of the Youth Center
overcrowding problem. On March 26, 1998 the Board of Chosen
Freeholders of Hudson County passed a resolution in opposition to
the JJC's emergency adoption of and proposed amendments to N.J.A.C.
10:19-4.2(d) and (e) and the proposed enactment of N.J.A.C. 13:90
4.2.
On April 2, 1998 the Executive Board of the JJC with Attorney
General Verniero as Chair, adopted the proposed recodification with
amendment of N.J.A.C. 10:19-4.2(d) and (e) as N.J.A.C. 13:90-4.2.
30 N.J.R. 1619 (May 4, 1998). On April 3, 1998 the recodification
with amendment and new rule were filed with the Office of
Administrative Law and became effective on the date of the filing.
Ibid. N.J.A.C. 13:90-4.2 as adopted on April 3, 1998 provided,
(a) Consistent with the purpose set forth
by the Legislature in the juvenile justice
reform legislation to reduce overcrowding at
all State and county juvenile facilities, a
juvenile who receives a State sentence of
incarceration shall be transported to the
juvenile intake unit at the New Jersey
Training School for Boys no later than 45 days
after the Juvenile Justice Commission receives
notification, in the form of a signed
commitment order and a presentence or
predisposition report, from the county where
the juvenile has been sentenced. Subject to
the availability of appropriations, the
Commission also shall provide a Commission
determined per diem rate to the counties for
State-committed juveniles held in the county
detention centers from the 16th day after
receipt by the Commission of the signed
commitment order and presentence or
predisposition report for each State-sentenced
juvenile. The per diem rate shall be
established by the Commission from time to
time. The 45 days shall be exclusive of the
date on which the Commission receives the
appropriate and necessary documentation.
[Emphasis added.]
On April 2, 1998 Senate Concurrent Resolution No. 46 (SCR 46)
was introduced pursuant to N.J. Const. art. V, § 4, ¶ 6,See footnote 55 the so
called "legislative veto" provision. See In re the Adoption of
Regulations Governing the State Health Plan,
135 N.J. 24, 28
(1994). On April 20, 1998 Assembly Concurrent Resolution No. 91
(ACR 91) was also introduced pursuant to N.J. Const. art. V, § 4,
¶ 6. Both resolutions, SCR 46 and ACR 91, declared that N.J.A.C.
13:90-4.2 had exacerbated overcrowding problems of juvenile
detention centers and was inconsistent with the legislative intent
of N.J.S.A. 2A:4A-20 to -91. The resolutions also declared that
the per diem reimbursement rate of $58.50 which a county would
receive from the State after the fifteenth day of a juvenile's
detention in the county facility was insufficient. SCR 46 was
referred to the Senate Legislative Oversight Committee on April 2,
1998 and was reported out of Committee with non-substantive
amendments on November 23, 1998.
We heard oral argument in this matter on June 16, 1999. Aware
of the pending legislative activity, we nonetheless entertained
oral argument but then decided to delay any decision for a
reasonable time in deference to the Legislature. Shortly after
oral argument, on June 24, 1999, the Senate unanimously adopted SCR
46 by a 40-0 vote. Again, in deference to the legislative process,
we filed this order on June 30, 1999:
THIS MATTER HAVING BEEN DULY PRESENTED TO
THE COURT, IT IS ON THIS 30TH DAY OF JUNE,
1999 HEREBY ORDERED AS FOLLOWS:
In view of the passage of Senate
Concurrent Resolution No. 46 on June 24, 1999,
we defer rendering a decision in this matter,
argued before us on June 16, 1999. We will
await further action on the validity of
N.J.A.C. 10:19-4.2 by the Legislature and the
Executive, noting that Concurrent Resolution
No. 46 found that the regulation "is not
consistent with legislative intent" and
transmitted a copy of the concurrent
resolution to the Governor and the Director of
the Juvenile Justice Commission for action
within 30 days pursuant to Article V, Section
IV, paragraph 6 of the Constitution of the
State of New Jersey.
If any party desires reargument, further
briefing, or other relief upon the conclusion
of the constitutional process described in
Article V, Section IV, paragraph 6, within 30
days thereafter that party may make an
appropriate application by motion to the
Presiding Judge of Part B.
We then awaited action by the General Assembly on ACR 91; it never
emerged from the Assembly Oversight Committee and ACR 91 died when
the legislative session ended on January 10, 2000. The attempted
"legislative veto" process did not succeed. We therefore must
decide the validity of recodified N.J.A.C. 13:90-4.2 providing for
a forty-five-day transfer period from county detention facilities
to a State facility for State-sentenced juvenile offenders.
In a very recent development, on January 21, 2000 the Attorney
General, John J. Farmer, Jr. advised us in writing as follows about
N.J.A.C. 13:90-4.2, which is "due to expire on May 12, 2000:
Please be advised that at this meeting on
January 19, 2000, the Executive Board of the
Juvenile Justice Commission authorized a
proposal to amend the existing 45-day transfer
regulation set forth at N.J.A.C. 13:90-4.2.
The proposal is to reduce the maximum
number of days within which transfer must be
made from 45 days to 30 days and to recodify
the rule to N.J.A.C. 13:92-4.2. There are no
other proposed changes to N.J.A.C. 13:90-4.2.
It is anticipated that the proposal will be
published in the New Jersey Register on
February 22, 2000. A copy of the Notice of
Proposal is attached for your review.
We attach the "agency proposal" as Appendix A. The proposal explains the Executive branch's continuing efforts in respect of the "transfer" problem.
The Counties contend that N.J.A.C. 13:90-4.2 is without legislative authority and improperly shifts the burden of housing State-sentenced juveniles from the State to the counties. The Counties argue that while this court in County of Hudson v. Department of Corrections found that the State may house juveniles in County facilities for a "transfer period," the current regulation is in essence an unauthorized "housing" period. The Counties assert that pursuant to N.J.S.A. 52:17B-170e(7) the State is responsible for the custody and care of juveniles committed by the family court. Despite this responsibility, the Counties argue the State is wrongly imposing additional overcrowding at county facilities. The Counties also argue it is possible for a juvenile to spend the entire "sentence" in the county facility depending upon the severity of their crime (e.g. crime of automobile theft with only a thirty-day period of imprisonment). As a result, the Counties assert that the forty-five-day "transfer period," really a housing period, will exacerbate the overcrowding in county facilities. The Counties also argue that the regulation imposing a forty-five-day transfer period is invalid on its face despite the regulation's provision for per diem payments for housing a State sentenced juvenile beyond fifteen days. The Counties assert that the cost per diem of housing a juvenile is $224 and the State's suggested amount $58.50 per day is woefully insufficient. Lastly, the Counties contend that the regulation is nonetheless invalid despite any undocumented State claims that juveniles now are transferred within an average fifteen-day time period.
The State counters that N.J.A.C. 13:90-4.2 providing a forty five-day holding period is a valid regulation which controls overcrowding in State juvenile facilities while maintaining the State's responsibility to house State-sentenced juveniles. The State also asserts that the regulation does not unreasonably shift the burden of housing State-sentenced juveniles to the Counties. Under N.J.S.A. 2A:4A-43c, the State argues the Juvenile Detention Commitment Program is a sensible alternative to sentencing a juvenile up to 60 days to a State facility provided that the county participates in the program. In the event the county does not, the juvenile must then be sentenced to the State correctional facility. The State maintains that it does not unreasonably shift the burden of housing State-sentenced juveniles beyond the controlling statutory authority. The State also argues that the regulation is valid on its face despite the contention the State's per diem payment for the housing of State-sentenced juveniles is insufficient. Administrative regulations are accorded a presumption of validity. New Jersey State League of Municipalities v. Department of Community Affairs, 158 N.J. 211, 222 (1999) (citing In re Township of Warren, 132 N.J. 1, 26 (1993); Medical Soc'y v. New Jersey Dep't. of Law & Public Safety, 120 N.J. 18, 25 (1990)). The party challenging their validity bears the burden of proving that the regulations are arbitrary, capricious, or unreasonable. Ibid. (citing In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. 531, 543 44 (1990); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978)). Judicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are "particularly well equipped to read and understand technical issues that . . . rulemaking would invite." Ibid. (quoting Bergen Pines County Hosp. v. New Jersey Dep't of Human Servs., 96 N.J. 456, 474 (1984)). Therefore, the scope of review of administrative regulations is "highly circumscribed," and a reviewing court is not to substitute its judgment for that of the agency. Ibid.
That deference is not without its limit, however, because a regulation "must be within the fair contemplation of the delegation of the enabling statute." Ibid. (citing New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. at 561-62)(quoting Southern Jersey Airways, Inc. v. National Bank of Secaucus, 108 N.J. Super. 369, 383 (App. Div. 1970))). The Supreme Court has recognized that "the grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities and . . . courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent." Ibid. (citing New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. at 62). Also, "[T]he absence of an express statutory authorization in the enabling legislation will not preclude administrative agency action where, by reasonable implication, that action can be said to promote or advance the policies and findings that served as the driving force for the enactment of the legislation." Id. at 223 (quoting A.A. Mastrangelo, Inc. v. Commissioner, Dep't of Envtl. Protection, 90 N.J. 666, 683-84 (1982)). Indeed, one might argue that a regulation which has survived an attack under the "legislative veto" mechanism of our State Constitution's, N.J. Const. art. V, § 4, ¶ 6, should receive paramount deference.
In County of Monmouth v. Department of Corrections, 236 N.J. Super. 523, 524 (App. Div. 1989), the County of Monmouth appealed the action of the Department of Corrections (DOC) in maintaining juveniles in county detention centers sentenced to State institutions and refusing the County's demand for immediate transfer of the State-sentenced juveniles to State facilities. In holding the DOC failed to carry out its statutory obligation to promptly place State-sentenced juveniles in State facilities, we found that no statutory or regulatory authority existed for the DOC to "house" youths sentenced to State facilities in county detention centers. Id. at 526. We also pointed out that State-sentenced juveniles present a greater security risk to the county facility, its residents and staff than those whom the court determines may be housed in a county facility for a period not exceeding sixty days pursuant to N.J.S.A. 2A:4A-43c (The Juvenile Detention Commitment Program). Id. at 527. We there also stated, "Statutory and regulatory prohibitions against overcrowding have been continuously violated. The State has effectively shifted its burden to the counties without legislative or executive authority." Id. at 528 (Emphasis added).
As we earlier observed at 9, in County of Hudson v. Department of Corrections, the Supreme Court affirmed the decision of this court upholding the validity and enforceability of N.J.A.C. 10:19 4.2(d) and (e) which provided for the transfer of State-sentenced juveniles from county to state facilities within three days. In reaching its decision the Supreme Court stated:
It is clear that the Legislature intended,
both before and after the creation of the JJC,
to place the responsibility for housing state
sentenced juvenile offenders on the State.
However, the Legislature did not provide for
or mandate a time frame for removal of such
delinquents from county facilities. The
Legislature's silence in that regard cannot be
ascribed to oversight or inadvertence.
Clearly, it knew how to provide for removal
because it enacted such a provision for state
sentenced adult offenders. N.J.S.A. 2C:43-10.
The omission of a comparable time
specific transfer provision in the statute,
when considered with the broad authority
granted to the JJC, underscores the
legislative decision to leave all aspects of
the housing of juveniles to the discretion of
the governing agency. Thus, the JJC's
delegated power to deal with the removal and
transfer of juvenile prisoners encompasses the
authority to allow the existing three-day
transfer regulation to continue as a valid
regulation.
[County of Hudson, 152 N.J. at 68-69.]
But the Court also pointed out the authority of an agency to amend,
change, or repeal its regulations, especially in response to
changing conditions. Id. at 72. The Court further stated that an
agency has the power, and sometimes the obligation, to amend
existing policies and regulations. Ibid.
N.J.S.A. 52:17B-170, the enabling statute for the JJC,
provides, in pertinent part:
e. The commission shall have the following
powers, duties and responsibilities:
(14) To formulate and adopt standards and rules for the efficient conduct of the work of the commission, the facilities, services, sanctions and programs within its jurisdiction and its officers and employees;
(22) To promulgate, pursuant to the "Administrative Procedure Act," [52:14B-1 to 15], rules and regulations necessary to implement and effectuate the purposes of this act.
The statute has delegated to the JJC an extensive array of powers.
N.J.S.A. 52:17B-170e(6) also empowers the JJC [t]o establish
minimum standards for the care, treatment government and discipline
of juveniles confined pending, or as a result of an adjudication of
delinquency"; (7) "[t]o assume the custody and care of all
juveniles committed by court order, law, classification, regulation
or contract to the custody of the commissions"; (8) "[t]o manage
and operate all State secure juvenile facilities"; (9) "[t]o manage
and operate all State juvenile facilities or juvenile programs";
(10) "[t]o prepare an annual State Juvenile Justice Master Plan
which identifies facilities, sanctions and services available for
juveniles adjudicated or charged as delinquent and juvenile
delinquency prevention programs and which identifies additional
needs based upon the extent and nature of juvenile delinquency and
the adequacy and effectiveness of available facilities, services,
sanctions and programs"; and (11) "[t]o approve plans for each
county submitted by the county youth services commission pursuant
to P.L. 1995, c. 181 (C. 52:17B-180)."
The Administrative Procedure Act (APA), N.J.S.A 52:14B-1 to
15, provides for the manner in which an agency can amend an
existing regulation. Specifically, N.J.S.A. 52:14B-4 states, in
pertinent part, the following:
(a) Prior to the adoption, amendment, or
repeal of any rule, except as may be otherwise
provided, the agency shall:
(1) Give at least 30 days' notice of its
intended action. The notice shall include a
statement of either the terms or substance of
the intended action or a description of the
subjects and issues involved, and the time
when, the place where, and the manner in which
interested persons may present their views
thereon . . . .
(4) Prepare for public distribution a
report listing all parties offering written or
oral submissions concerning the rule,
summarizing the content of the submissions and
providing the agency's response to the data,
views and arguments contained in the
submissions.
(c) If an agency finds that an imminent
peril to the public health, safety, or welfare
requires adoption of a rule upon fewer than 30
days' notice and states in writing its reasons
for that finding, and the Governor concurs in
writing that an imminent peril exists, it may
proceed without prior notice or hearing, or
upon any abbreviated notice and hearing that
it finds practicable, to adopt the rule.
In the present case, the recodification and amendment of
N.J.A.C. 10:19-4.2 (d) and (e) (providing for a three-day transfer
period) as N.J.A.C. 13:90-4.2 (providing for the forty-five-day
transfer period) and a new rule itself, N.J.A.C. 13:90-4.2, were
adopted on an emergency basis pursuant to N.J.S.A. 52:14B-4c and
statements of imminent peril were produced by Governor Whitman as
well as then Attorney General Verniero, as Chair of the JJC.
30 N.J.R. 871 (March 2, 1998). On April 2, 1
998 N.J.A.C. 13:90-4.2
was adopted by the JJC and the comments of numerous county
representatives were heard as well as the JJC's responses.
30 N.J.R. 1619-1623 (May 4, 1998). Thus, the regulations were
properly adopted by the JJC.
N.J.A.C. 13:90-4.2 appears to us as within the scope of the
above-quoted broadly-worded enabling legislation of N.J.S.A.
52:17B-170e. Further, unlike the situation in County of Monmouth
v. Department of Corrections, there now is an applicable regulation
which provides for the specific forty-five-day transfer period,
N.J.A.C. 13:90-4.2. The Supreme Court's finding of validity of the
original time-specific three-day transfer period set forth in
N.J.A.C. 10:19-4.2 (d) and (e) in County of Hudson v. Department of
Corrections augurs for a finding that N.J.A.C. 13:90-4.2 is a valid
time-specific regulation despite the extensive time enlargement, if
the State-level need is demonstrated and the time period is
reasonable in the circumstances. The Supreme Court essentially
instructed the JJC on the manner in which it could amend, change or
alter its regulations to allow for a longer "transfer" period.
County of Hudson v. Department of Corrections, 152 N.J. at 72-73.
We conclude that N.J.A.C. 13:90-4.2 providing for a forty-five-day
"transfer" period is not explicitly or manifestly inconsistent with
the JJC's broad powers to cope with "juvenile justice services and
sanctions at the State, county and local level." N.J.S.A. 52:17B
169k. The fundamental wisdom of such an extensive "transfer" or
"holding" period is a matter of governmental policy and commitment
of State resources, not for our judicial decision.
The Counties next argue that the N.J.A.C. 13:90-4.2 exceeds
any statutory authority of the JJC. The Counties also urge that
N.J.S.A. 2A:4A-37 and 2A:4A-44.1 serve as a strict legislative
prohibition against shifting the burden of housing State-sentenced
juveniles in the county facilities up to a possible forty-five-day
time period. The State disagrees and also contends there is no
statutory authority "requiring" the JJC to compensate counties in
any particular way; the reimbursement is left to the complete
discretion of the Commission.
As noted, N.J.S.A. 52:17B-170e(22) states the JJC may
"promulgate, pursuant to the 'Administrative Procedure Act,'
[52:14B-1 to -15], rules and regulations necessary to implement and
effectuate the purposes of this act."
N.J.S.A. 2A:4A-37 provides in pertinent part, the following:
a. The Juvenile Justice Commission . . .
shall specify the place where a juvenile may
be detained; and the Department of Human
Services shall specify where a juvenile may be
placed in shelter.
c. No juvenile shall be placed in a detention
facility which has reached its maximum
population capacity, as designated by the
Juvenile Justice Commission.
f. (1) Where either the Juvenile Justice
Commission or the Department of Human Services
determines that a juvenile detention facility
or shelter under its control or authority is
regularly over the maximum population capacity
. . . the commission or department may
restrict new admissions to the facility or
shelter.
N.J.S.A. 2A:4A-44.1 provides, in pertinent part, the
following:
The Juvenile Justice Commission . . . may
enter into an agreement with any county
concerning the use of that county's juvenile
detention facility for the housing of
juveniles the court has placed under the
custody of the commission for placement in
State correctional facilities only if the
county's juvenile detention facility is not
over its maximum rated capacity.
[Emphasis added].
First, regarding the placement of juveniles in detention
facilities already at maximum capacity, the State claims it is not
attempting to originally "house" State-sentenced juveniles in
county facilities but rather is imposing an allegedly temporary
transfer period in order to accommodate severe overcrowding in
State facilities. Under the broad enabling language of N.J.S.A.
52:17B-170e(22), we find the JJC has the requisite authority to
impose on the counties and adopt the challenged regulation,
N.J.A.C. 13:90-4.2, in this circumstance.
Second, regarding an agreement between the State and the
County for the housing or temporary assignment of State-sentenced
juveniles in county detention facilities, N.J.S.A. 2A:4A-44.1
provides that the State "may" enter into an agreement but does not
require it to do so. In light of N.J.A.C. 13:90-4.2's express
language that the forty-five-day time period is a transfer period,
the regulation nominally does not directly conflict with existing
statutory authority and again we deem it valid within the broad
enabling legislation of the JJC, N.J.S.A. 52:17B-170e. Because the
attempt at a "legislative veto" of the regulation has failed, this
reality tends to reinforce our conviction that N.J.A.C. 13:90-4.2
is a valid, though far from optimal, exercise of delegated
legislative power.
Finally, we decline to entertain the Counties' claim that N.J.A.C. 23:90-4.2 violates the due process liberty interests on parole rights to "good-time" credits for juvenile offenders. We deem the record inadequate on this issue. Also, the parole authorities are not parties to this proceeding. Meanwhile, we have been assured in writing by the Attorney General that sentenced juvenile offenders will continue to be afforded "good-time" credit for any period of delay in transfer, while they remain in county detention. By Deputy Attorney General James D. Harris's letter of June 25, 1999 to the Presiding Judge of this Panel, the Attorney General on behalf of the State has represented and agreed as follows:
Finally, this certification provides that
since the issue was brought to the Juvenile
Panel's attention through this appeal, the
Juvenile Panel has agreed from this day forth
to provide credit reduction pursuant to
N.J.A.C. 10A:71-3.24 to state-sentenced
juvenile offenders for the time spent in
custody in county juvenile detention centers
awaiting transfer to a state juvenile facility
pursuant to N.J.A.C. 13:90-4.2.
As noted in the attached certification, the
New Jersey State Parole Board, from this day
forward, shall implement a uniform policy for
providing such credit reduction to state
sentenced juveniles for the time spent in
custody in county juvenile facility awaiting
transfer.
We accept and rely on this representation.
Our decision today unfortunately does not advance a solution
to the overcrowding of juvenile detention and sentence facilities
at both the county and State levels. This is a political and
fiscal struggle between the State and its political subdivisions,
not a problem for judicial resolution. See County of Camden v.
Waldman,
292 N.J. Super. 268, 290-92 (App. Div. 1996), cert.
denied,
149 N.J. 139 (1997); see also In re Charter School
Application,
320 N.J. Super. 174, 227 (App. Div. 1999), certif.
granted, __ N.J. __ (1999). Obviously, the sooner a sentenced
juvenile is removed to the State reformatory system upon
adjudication and disposition, the better. The juvenile should
promptly be placed in the State system and in programs optimally
geared to education and rehabilitation, not left lingering in
overcrowded county detention centers. Nothing is gained by such
delay, and much potential for harm exits. We hope the Executive
and Legislative branches will persist in an effort to find a
solution to this vexing problem soon.
Affirmed.
Governor TRENTON, NJ 086254) Attorney General
(609)292-8582 JEFFREY J. MILLER
Assistant Attorney General
Director
VIA OVERNIGHT MAIL
Honorable Michael Patrick King, J.A.D.
Superior Court of New Jersey
Appellate Division
216 Haddon Avenue
Westmont, NJ 08108-2815
Honorable Richard Newman, J.A.D.
Superior Court of New Jersey
Appellate Division
155 Morris Avenue, Third Floor
Springfield, NJ 07081-1216
Honorable John E. Wallace, Jr., J.A.D.
Superior Court of New Jersey
Appellate Division
216 Haddon Avenue
Westmont, NJ 08108-2815
RE: Hudson County v. State. et al
Docket No. A-4419-97T2
Camden County v. State, et al
Docket No. A-4638-97T2
Dear Honorable Judges of the Appellate Division:
Please accept this letter as a further response to the
court's inquiry set forth in correspondence dated October 22, 1999
requesting the "current status of this matter especially any
actions taken by the Executive Branch or the Governor with respect
to the pertinent transfer-time regulation." Please be advised that
at its meeting on January 19, 2000, the Executive Board of the
Juvenile Justice Commission authorized a proposal to amend the
existing 45-day transfer regulation set forth at N.J.A.C.
13:90-4.2.
The proposal is to reduce the maximum number of days within
which transfer must be made from 45 days to 30 days and to recodify
the rule to N.J.A.C. 13:92-4.2 There are no other proposed
changes to N.J.A.C. 13:90-4.2. It is anticipated that the proposal
will be published in the New Jersey Register on February 22, 2000.
A copy of the Notice of Proposal is attached for your review.
Please advise if you require additional information.
Respectfully yours,
JOHN J. FARMER, JR.
ATTORNEY GENERAL OF NEW JERSEY
BY:_______________________________
John Franzini
Deputy Attorney General
JF/sb
Enclosure
cc: Michael A. Cifelli, Esq.
Donna M. Whiteside, Esq.
AAG Nancy Kaplen
Bruce D. Stout, Executive Director, Juvenile Justice
Commission
LAW AND PUBLIC SAFETY
JUVENILE JUSTICE COMMISSION
Juvenile Population in Detention
Proposed Amendment: N.J.A.C. 10:19-4.2
Proposed Repeal: N.J.A.C. 13:90-4
Authorized By: Executive Board of the Juvenile Justice Commission,
by the Honorable John J. Farmer, Jr., Attorney General and
Chair.
Authority: N.J.S.A. 52:1 7B-1 69, 52:1 7B-1 70(a), 52:1 7B-1
70(e), 52:1 7B-1 70(e)(22), 52:17B-176(a)(3) and 52:17B-177.
Proposal Number: PRN 2000-
Submit written comments by to:
Bruce D. Stout
Executive Director
New Jersey Juvenile Justice Commission
P.O. Box 107
Trenton, New Jersey 08625-0107
The agency proposal follows.
In accordance with Executive Order No.66 (1978), the rules at N.J.A.C. 13:90-4, concerning Juvenile Population in Detention, are scheduled to expire on May 12, 2000.
These rules were originally adopted by the Juvenile Justice Commission, hereinafter referred to as the "Commission" as an emergency basis and became effective February 3, 1998. The rules were then readopted in compliance with the rulemaking requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., effective April 3, 1998.
Background on the origins of N.J.A.C. 13:90-4 follows.
In December 1997, the Commission faced a major crisis in the administration of the State's Juvenile Justice System when the Supreme Court of New Jersey, ruled in County of Hudson v. Department of Corrections, et al, and County of Camden V Peter Verniero, et al., that the Commission was required to comply with the Department of Human Services' rule at N.J.A.C. 10:19-4.2, a regulation originally adopted by the Department of Corrections which provided the State with only three days to remove State-sentenced juveniles from county detention centers following receipt of an order of commitment and a predisposition or presentence report.
Because of severe crowding in State juvenile facilities, the Commission found the three-day regulation to be unrealistic and unworkable. From its creation in December 1995, the Commission had been transferring State-sentenced juveniles from county facilities as expeditiously as possible, but that sometimes meant 60 days or more given the chronic crowding conditions that existed in State and county facilities. The Supreme Court ordered immediate compliance with the three-day rule as it related to State-sentenced juveniles in the detention centers in Camden and Hudson Counties, but postponed the effective date of its decision with respect to all other counties for a period of 60 days to permit the Commission to, "take legally effective action to relieve itself of the burden in complying with the three-day transfer requirement." Importantly, the Supreme Court noted that the State was then in the process of amending the transfer rule and stated that, "in accordance with its provisions, transfers of juvenile delinquents from county facilities under the proposed rule will not be required within three days but will be effectuated over longer periods." With this acknowledgment, the Court affirmed the Commission's position that the Legislature, with the enactment of its 1995 reform of the State's juvenile justice system, had delegated to it the authority to determine, ~ll aspects of the housing of juveniles," including the authority to remedy overcrowding in State and county juvenile facilities, by, among other things, fixing a longer time period for transferring State-sentenced juveniles from county detention facilities.
Consistent with the Supreme Court's decision, the Commission adopted the transfer rule, N.J.A.C. 13:90-4.2, first on an emergent basis and thereafter through the standard rulemaking process. The new rule redefined the time frame for the removal of State-sentenced juveniles from three days to a maximum of 45 days and further provided, subject to available appropriations, a per diem rate to counties for State-sentenced juveniles in county juvenile detention centers as of the sixteenth day after receipt of a commitment order and predisposition report by the Commission.
The Juvenile Justice Commission was created pursuant to Governor Whitman's Juvenile Justice Reform Legislation, P.L. 1995, Chapter 284 (N.J.S.A. 52:1 7B-1 69 et seq.), which resulted from recommendations of the Governor's Advisory Council on Juvenile Justice. The Commission was established as the single agency of State government responsible for planning, policy development, operations, contracting and advocacy for youth involved, or at risk of involvement, in the juvenile justice system. The Commission became responsible for the custody and care of any juvenile adjudicated delinquent and committed or classified to the custody and care of the Department of Corrections or the Division of Juvenile Services within the Department of Human Services, and any juvenile serving a term of incarceration in a county juvenile detention facility (N.J.S.A. 52:17B-1 76(a)(3)).
The Governor's Advisory Council recognized that the juvenile justice system was experiencing significant problems with crowding in State and county juvenile facilities. Since its creation in 1995, the Commission has continued to be confronted with the problem and has responded to it with the development and implementation of a multi-faceted strategy. The Commission has increased bed space with the creation of a Stabilization and Reintegration Program, (bootcamp). This bootcamp maintains an orientation unit of 28 beds and platoons of 60 cadets at Wharton Tract. The Commission has also added 35 secure beds for females with the opening of the Valentine Unit in Bordentown. The Commission continues to operate 21 community programs. These programs have expanded their population capacities thereby placing a burden on their efficient operation.
The Commission continues to maintain mobile classification teams to expedite the process of removing juveniles from the county detention centers through the early collection of background and offense information and the initial screening of the juveniles' levels of risk and needs.
The Commission continues to operate the State/Community Partnership Grant Program which has provided over $10 million annually for the last three and a half years. In FY2000 the Commission will provide $11.1 million in Partnership and Family Court funding to the States' 21 counties. The Partnership program has funded the development of county-based programs aimed at reducing crowding in county detention facilities and has increased program options to the Courts to divert juveniles from the Commission's facilities. In 1999 a total of 224 programs were funded throughout the State. Of these, 34 were programs to reduce detention overcrowding. These 34 programs served 1,091 juveniles in 1999. Sixty-eight of the Partnership funded programs provided increased dispositional options to the Family Court. These programs served 1,252 juveniles in 1999.
The transfer rule at N.J.A.C. 13:90-4.2 adopted by the Commission represents another element in the multi-faceted State response to the chronic crowding conditions in State and county juvenile facilities. Additionally, the Commission's Aftercare/Parole Services unit has expedited the return of parole violators to the Commission's institutions thereby not contributing to detention overcrowding.
Even with these initiatives, the Commission has continued to wrestle with crowded conditions in its facilities. In calendar year 1999, the Commission's overall institutional/residential population was 1,226. The actual bed capacity was 1,139. Therefore, on average, the Commission operated at 108" of capacity, a shortage of 87 beds. The current 45-day transfer rule was adopted by the Commission as one that could be achieved based upon a review of intake records. In considering an appropriate transfer period, the Commission was aware that on occasions in the past, State-committed juveniles had remained in county detention centers for longer periods of time. The Commission concluded that the 45-day time frame was workable, given the results being produced by some of the initiatives described above.
The 45-day transfer rule has eased the crowding situation at the New Jersey Training School for Boys in Monroe Township by providing an orderly rhythm to the process of bringing juveniles into the centralized intake and classification units. State sentenced juveniles are received by the Commission at the Training School where they are classified and then assigned to one of three secure care institutions or one of 21 community programs. The classification process at the Training School extends for two weeks, during which time the juveniles are subject to several interviews and evaluations, including medical, educational and psychological evaluations. Assignments to secure care facilities or community programs are not made until the medical and psychological evaluations are complete. A substantial increase in the number of juveniles entering the Training School because of an unreasonably abbreviated transfer requirement would increase the length of the classification process, and thus disrupt the orderly assignment of juveniles. The resources available to the Commission for medical and psychological evaluations are calculated to respond to 20 to 25 admissions per week. A substantial increase in admissions, with a return to the three day rule for every juvenile henceforth committed to the Commission, would put a strain on the classification process to the point of dysfunction.
The 45-day transfer rule has permitted the Commission a necessary level of flexibility in responding to current conditions and any increase in commitment patterns by the courts, but also recognizes the needs of the counties. If a State-sentenced juvenile remains at a county facility longer than 15 days during the current 45 day period, the Commission provides a per diem rate currently fixed at $58.50 to the county, beginning on the sixteenth day from receipt by the Commission of the commitment order and predisposition report for each State-sentenced juvenile.