(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 interests of brevity, portions of any opinion may not have been summarized).
IN THE MATTER OF D.C. (A-123-95)
Argued April 29, 1996 -- Decided August 6, 1996
HANDLER, J., writing for a unanimous Court.
This appeal challenges the authority of the Attorney General to initiate and participate in involuntary
civil commitment proceedings.
On July 12, 1980, D.C. kidnapped, tortured and raped a female victim. He pled guilty to aggravated
sexual assault, kidnapping, and possession of a knife. He was sentenced to the Avenel Diagnostic and
Treatment Center (Avenel) for two concurrent twenty-year terms with a ten-year period of parole
ineligibility.
Tests of D.C. at Avenel indicated that he was unable to control his thoughts or behavior and had
inadequate control over his impulses. D.C. reported to his therapist, Dr. Kay Jackson, that he continued to
have violent sexual fantasies and if released would commit the same kind of crime he had committed in the
past. Psychiatrists at Avenel examined D.C. at Dr. Jackson's request. They agreed with Dr. Jackson that
D.C. was potentially dangerous and would commit a sexual offense again. Nonetheless, they concluded that
D.C. was not eligible for involuntary commitment because he was not "openly psychotic."
D.C was released from Avenel in 1992 after serving twelve years. Dr. Jackson contacted local law
enforcement authorities in Wyckoff Township, the Bergen County community where D.C. intended to reside,
to warn them of her opinion that D.C. was dangerous. Dr. Jackson also contacted the Bergen County
Prosecutor.
Shortly after his release, D.C. submitted voluntarily to an evaluation at a local psychiatric screening
service. The psychiatrist that examined D.C. determined that he was not mentally ill. The Wyckoff Police
and the Bergen County Prosecutor's Office also conducted a close surveillance of D.C. He was observed
engaging in various types of peculiar behavior.
The Attorney General (AG) investigated the circumstances of D.C.'s release from Avenel and
concluded that Avenel's staff had applied an incorrect standard in authorizing D.C.'s release. The AG
sought a court ordered psychiatric examination of D.C. to determine whether involuntary commitment
proceedings against him should be initiated. After a hearing on that request, the trial court noted that,
although the statute and court rules did not authorize the application, the AG was acting in her capacity as
parens patriae. The court granted the relief sought by the AG and ordered psychiatric examinations of D.C.
After D.C. was examined, the court held a hearing to determine whether there was probable cause
to believe that D.C. was in need of involuntary commitment. The court found probable cause and ordered
D.C. temporarily committed to Bergen Pines County Hospital, pending a plenary hearing. In February 1993,
four examining physicians testified at the plenary hearing. Based on the evidence presented, the trial court
found that D.C. was "in need of involuntary commitment." D.C. was transferred to the Forensic Hospital in
Trenton.
In June 1993, D.C.'s commitment was reviewed. On July 1, 1993, the trial court ordered his
continued confinement, concluding that D.C. was mentally ill and dangerous. In March 1994, after a second
review hearing, the court determined that D.C.'s commitment should be continued.
D.C. appealed the February 1993 commitment decision and the July 1993 decision for continued commitment. D.C. filed a second appeal of the March 1994 commitment decision. A divided panel of the
Appellate Division reversed the decision of the trial court that ordered D.C.'s initial temporary involuntary
commitment. The majority determined that the initial confinement based on the AG's request for a
psychiatric examination was not authorized by statute or under the State's inherent parens patriae powers,
and that D.C.'s subsequent commitments did not conform to the procedural requirements of the civil
commitment statute.
The State appeals as of right based on the dissent in the Appellate Division.
HELD: Through the 1994 amendments to the civil commitment statute, the Legislature intended to enact
remedial legislation to effectuate its purpose to confine persons who are found to be dangerous due
to mental illness. It did so by clarifying the standards applicable to all persons suffering from mental
illness; it thereby reaffirmed but did not change existing law. It authorized the Attorney General to
initiate commitment proceedings in the interest of public safety by obtaining a psychiatric
examination, thereby codifying existing common-law powers of the AG. Finally, it clearly intended
that the law apply retroactively to released convicted sexual offenders.
1. In 1994, the Legislature amended the 1987 civil commitment statute. The amendments added language
clarifying the definition of mental illness and explicitly authorized the AG to participate in involuntary
commitment proceedings. The 1994 amendments reflect the legislative intent to codify the AG's parens
patriae powers and explicitly provide for the exercise of those powers. (pp. 7-15)
2. The authority of the State to effect involuntary commitment is derived from the police power and the
parens patriae power. Under the parens patriae theory, the State has the power to protect those persons
within the State who cannot protect themselves because of an innate legal disability, such as mental illness.
Because of the liberty interests at stake, civil commitment procedures must comply with due process and the
State's parens patriae authority must comply with procedural and substantive due process. (pp. 15-19)
3. The Legislature plainly stated that the 1994 amendments were designed to clarify the existing standards as
well as the AG's authority to initiate civil commitment proceedings. The Legislature intended the authority
that it conferred on the AG to be applied retroactively. The amendments were intended not only to validate
the AG's exercise of authority through its retroactive application, but also to recognize the validity of the
actions taken. (pp.19-27)
4. Whether the procedures undertaken to commit D.C. were sufficiently protective of D.C.'s liberty interests
implicates concerns of both substantive and procedural due process. The statutory standard to establish that
a person is "in need of voluntary commitment" under the civil commitment statute as amended satisfies
substantive due process. Because the amendment clarifies the definition of mental illness and does not
change the law, the retroactive application of the 1994 amendments to the definition of mental illness does
not offend substantive due process. Moreover, D.C. was afforded full procedural due process protection
through the proceedings that led to his involuntary commitment. D.C. was afforded notice, the opportunity
to challenge the sufficiency of the application, adequate prehearing examinations, full hearings, representation
of counsel, and the opportunity to present evidence and confront witnesses through cross-examination.
Finally, the commitment proceedings and the retroactive application of the 1994 amendment did not subject
D.C. to a manifest injustice. (pp. 27-31)
5. The findings of all the physicians testifying provide clear and convincing evidence of D.C.'s dangerousness
caused by his mental illness. Thus, the trial court's determinations, initially to compel D.C. to undergo
psychiatric evaluation, and later for continued treatment, were adequately supported by the record.
(pp. 31-35)
Judgment of the Appellate Division is REVERSED.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE
HANDLER'S opinion.
SUPREME COURT OF NEW JERSEY
A-
123 September Term 1995
IN THE MATTER OF D.C.
Argued April 29, 1996 -- Decided August 6, 1996
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 281
N.J. Super. 102 (1995).
Jaynee LaVecchia, Assistant Attorney General,
argued the cause for appellant, State of New
Jersey, (Deborah T. Poritz, Attorney General
of New Jersey, attorney; Ms. LaVecchia,
Joseph L. Yannotti and Benjamin Clarke,
Assistant Attorneys General, of counsel; Mr.
Clarke, Daisy B. Barreto and John K.
Worthington, Deputy Attorneys General, on the
briefs).
Vincent W. Basile argued the cause for
respondent, D.C. (Flood & Basile, attorneys).
The opinion of the Court was delivered by
HANDLER, J.
This appeal arises from the involuntary civil commitment of D.C. After pleading guilty to sexual assault, kidnapping, and weapon possession charges, D.C. was convicted and sentenced to the Avenel Diagnostic and Treatment Center. Finding D.C. was not
mentally ill under the statute authorizing involuntary commitment
and not committable, the prison medical staff authorized his
release.
D.C. was thereafter subjected to surveillance by local law
enforcement authorities in the community. On learning of the
reported results of that monitoring, the Attorney General sought
and obtained court authorization to compel D.C. to submit to
psychiatric evaluations to determine whether he should be
required to undergo civil involuntary commitment proceedings.
Thereafter, following a hearing, the court found D.C. to be
suffering from "mental illness" and "dangerousness" and ordered
him temporarily confined to Bergen Pines Community Hospital to
undergo psychiatric examination. Subsequent commitment
proceedings resulted in the continuing involuntary commitment of
D.C. to a state mental hospital.
It is not disputed that the proceeding that resulted in
D.C.'s initial temporary involuntary confinement at the request
of the Attorney General for purposes of being subjected to a
psychiatric examination did not comply with the statutory
procedural requirements governing the involuntary commitment of
mentally ill persons and was not expressly authorized by any
statute or rule of court.
This appeal challenges the constitutional and statutory
validity of D.C.'s involuntary commitment and, particularly, the
authority of the Attorney General to initiate and participate in
commitment proceedings.
On July 12, 1980, D.C. abducted a young woman, took her to a wooded area, tied her to a tree, and gagged her. He retrieved a "torture kit," which included medical instruments, rope, and a pick ax, and proceeded to torture and rape his victim. D.C. stated that he spared the victim's life when he saw blood coming from her rectum. D.C. turned himself in to authorities and pled guilty to aggravated sexual assault, kidnapping, and possession of a knife. He was sentenced to the Avenel Diagnostic and Treatment Center (ADTC or Avenel) for two concurrent twenty-year terms with a ten-year period of parole ineligibility.
At ADTC, D.C. was placed in therapy; tests indicated that he was unable to control his thoughts or behavior and had inadequate control over his impulses. Dr. Kay Jackson, a staff psychologist at Avenel, began treating D.C. in January 1992. D.C. reported to Jackson that he continued to have violent sexual fantasies and if released would commit the same kind of crime he committed in the past. He stated that he considered himself a "failed rapist because his victims are alive" and that he would "attempt to kill the next victim."
Jackson found that D.C.'s condition had remained unchanged. In April 1992 and November 1992, she asked psychiatrists at ADTC to examine D.C. for possible involuntary civil commitment. The doctors agreed with Jackson that D.C. was potentially dangerous and would commit a sexual offense again, but concluded he was not
eligible for involuntary commitment because he was not "openly
psychotic."
D.C. was released from Avenel on November 17, 1992, after
serving twelve years. After his release, Dr. Jackson contacted
law enforcement authorities of Wyckoff Township, the Bergen
County community where he intended to resume residence, to warn
them that in her opinion D.C. was dangerous and presented a harm
to the public. Jackson also spoke with the Bergen County
Prosecutor.
Shortly after his release from Avenel, D.C. voluntarily
submitted to an evaluation by Dr. Joel Fetterbush, a psychiatrist
for the Mid-Bergen Mental Health Center, Inc., the screening
service located at Bergen Pines Hospital. He found D.C. not
mentally ill.
The Wyckoff Police and the Bergen County Prosecutor's Office
conducted a close surveillance of D.C. They observed D.C., who
knew he was under surveillance, engaging in various types of
peculiar behavior. Members of the surveillance teams explained
that D.C. would tell them that he was a rapist and always will
be, likening his condition to that of an alcoholic; he expressed
continued interest in younger girls, saying they understand him
better. D.C. admitted to them that he wanted to contact the
victim of the 1980 assault to "see if she [was] okay." The
surveilling officers also noted that D.C. would at times shout
profanities and threatening remarks. D.C. also attempted to
explain his strange conduct to the officers.
The Attorney General investigated the circumstances
surrounding D.C.'s release from Avenel. She concluded that
ADTC's staff had applied an incorrect standard in authorizing
D.C.'s release. (She apparently was also denied access to the
psychiatric records of the Bergen County screening service, and
therefore believed that evaluation could not be relied on.) The
Attorney General obtained an order to show cause from the
Superior Court of New Jersey, Law Division, Bergen County,
seeking a psychiatric examination of D.C. to determine whether
involuntary commitment proceedings against him should be
initiated. On January 8, 1993, the court ordered that the
records be sealed and that the proceedings be closed.
A hearing on the order to show cause was held on January 13,
1993. The court determined that although the statute and court
rules did not authorize the Attorney General's application, the
Attorney General was acting in her capacity as parens patriae.
Weighing all of the relevant factors, the court granted the
relief sought by the Attorney General and ordered the psychiatric
examinations of D.C.
The psychiatric examinations were conducted on January 21,
1993. The court thereafter held a hearing to determine whether
probable cause existed to believe that D.C. was in need of
involuntary commitment. The court found probable cause existed
and ordered D.C. temporarily committed to Bergen Pines County
Hospital pending a plenary commitment hearing. That hearing was
conducted on February 8, 1993, in which four physicians who had
conducted the evaluations of D.C. testified. On February 19,
1993, the trial court found that D.C. was in need of involuntary
commitment. D.C. was thereafter transferred to the Forensic
Hospital in Trenton.
In June 1993, D.C.'s commitment was reviewed. The court, on
July 1, 1993, ordered his continued confinement, concluding that
D.C. was mentally ill and dangerous. A second review hearing was
conducted in the winter of 1994. The trial court, in March 1994,
determined that D.C.'s commitment should be continued.
D.C. appealed the February 1993 commitment decision and the
July 1993 decision for continued commitment. D.C. filed a second
appeal of the March 1994 commitment decision.
A divided Appellate Division reversed the decision of the
trial court that ordered D.C.'s initial temporary involuntary
commitment.
281 N.J. Super. 102 (App. Div. 1995). It determined
that D.C.'s initial confinement based on the Attorney General's
request for a psychiatric examination was not authorized by
statute or under the State's inherent parens patriae powers, and
that D.C.'s subsequent commitments did not conform to the
procedural requirements of the civil commitment statute. Id. at
120. The court further concluded that because the physicians at
the Bergen County screening facility had, prior to the Attorney
General's initial application, determined that D.C. failed to
fall within the definition of mental illness applicable at the
time and was not committable, the trial court should have ordered
D.C.'s release. 281 N.J. Super. at 121.
Due to the dissent in the Appellate Division, this appeal is
before us as of right. R. 2:2-1(a)(2).
D.C. challenges the authority of the Attorney General to initiate proceedings for his temporary involuntary commitment. That challenge requires an examination of the comprehensive statutory and the regulatory standards that govern involuntary commitments.
In 1987, the Legislature passed a comprehensive civil commitment statute. L. 1987, c. 116 §§ 1-33 (codified at N.J.S.A. 30:4-27.1 to -27.23). Central to the commitment statute is the Legislature's express directive that each county or designated mental health service area develop a screening service or short term care facility to meet the needs for evaluation and treatment of mentally ill persons. N.J.S.A. 30:4-27.1d. The statute carefully prescribed the procedures for involuntary civil commitment. Pursuant to N.J.S.A. 30:4-27.10:
a. A short term care or psychiatric facility or a special psychiatric hospital shall initiate court proceedings for involuntary commitment by submitting to the court a clinical certificate completed by a psychiatrist on the patient's treatment team and the screening certificate which authorized admission of the patient to the facility; provided however, that both certificates shall not be signed by the same psychiatrist unless the psychiatrist has made a reasonable but unsuccessful attempt to have
another psychiatrist conduct the evaluation
and execute the certificate.
b. Court proceedings for the involuntary
commitment of any person not referred by a
screening service may be initiated by the
submission to the court of two clinical
certificates, at least one of which is
prepared by a psychiatrist. The person shall
not be involuntarily committed before the
court issues a temporary court order.
The Act provided several relevant statutory definitions.
See N.J.S.A. 30:4-27.2. It defined mental illness to mean:
a current, substantial disturbance of
thought, mood, perception, or orientation
which significantly impairs judgment,
behavior or capacity to recognize reality,
but does not include simple alcohol
intoxication, transitory reaction to drug
ingestion, organic brain syndrome, or
developmental disability unless it results in
the severity of impairment described herein.
"Dangerous to others or property" is defined to mean "that by
reason of mental illness there is a substantial likelihood that
the person will inflict serious bodily harm upon another person
or cause serious property damage within the reasonably
foreseeable future. This determination shall take into account a
person's history, recent behavior and any recent act or threat."
N.J.S.A. 30:4-27.2i. The Act also defines "dangerous to self."
N.J.S.A. 30:4-27.2h.
Legislative findings and declarations stated that the State
is responsible for providing care, treatment, and services to
mentally ill persons who cannot care for themselves, or who are
dangerous to themselves, others, or property. N.J.S.A. 30:4-27.1a. The Legislature further explained:
Because involuntary commitment entails
certain deprivations of liberty, it is
necessary that State law balance the basic
value of liberty with the need for safety and
treatment, a balance that is difficult to
effect because of the limited ability to
predict behavior, and therefore, it is
necessary that State law provide clear
standards and procedural safeguards that
ensure that only those persons who are
dangerous to themselves, to others, or to
property, are involuntarily committed.
The goal of the legislation was to create a public health system
that provides professional treatment and services in a manner
that "protects individual liberty and provides advocacy and due
process for persons receiving treatment." N.J.S.A. 30:4-27.1c.
The New Jersey Rules of Court also address civil
commitments. Rule 4:74-7, entitled "Civil Commitment," adopts
the definitions found in N.J.S.A. 30:4-27.2. R. 4:74-7(a). Like
N.J.S.A. 30:4-27.10, Rule 4:74-7 identifies and implements two
methods of commencing an action for involuntary civil commitment:
screening service referral or independent applications that
require two clinical certificates, one from a psychiatrist,
recommending involuntary commitment. R. 4:74-7(1) and (2). The
rule provides that if probable cause exists after the
presentation of the two clinical certificates in conformance with
that standard, the court may enter an order of temporary
commitment pending a full commitment hearing. R. 4:74-7(c). The
rule also authorizes "discovery." R. 4:74-7(d) ("[T]he court may
also order testing or examination of the patient by an
independent psychiatrist, psychologist or other expert").
The history of the Court Rule notes that the rule "was
clearly required in order to correct a long standing history of
procedural abuses in the civil commitment process and to ensure
that no person may be involuntarily committed to a psychiatric
institution without having been afforded full procedural due
process." Pressler, Current N.J. Court Rules, comment 1, on R.
4:74-7 (1995). See In re N.N., N.J. , (1996) (slip
op. at 8). The commentary observes that the adoption of the rule
reflects an increasing concern for the mentally ill and a
"growing realization that, traditionally, persons alleged to be
suffering from mental illness have been committed on ex parte
orders entered without representation by counsel, without
adequate notice, without adequate proofs and in general violation
of the most fundamental concepts of due process." Pressler,
Current N.J. Court Rules, comment 1, on R. 4:74-7 (1995). The
commentary acknowledges that the rule was revised to conform with
N.J.S.A. 30:4-27.1 to -27.23. Ibid. Specifically, referring to
the provision entitled "Discovery," the comment cites the
Appellate Division opinion in this case, and observes that "the
provisions of this rule have been held applicable only to pending
commitment proceedings properly commenced pursuant to paragraph
(b)." Pressler, Current N.J. Court Rules, comment 5, on R. 4:74-7(d) (1995).
In 1994, the Legislature amended the civil commitment
statute. L. 1994, c. 134. The amendments added language to the
definition of mental illness. After the enactment of the
amendment, the definition of mental illness provided:
Mental illness means a current, substantial
disturbance of thought, mood, perception, or
orientation which significantly impairs
judgment, capacity to control behavior or
capacity to recognize reality, but does not
include simple alcohol intoxication,
transitory reaction to drug ingestion,
organic brain syndrome, or developmental
disability unless it results in the severity
of impairment described herein. The term
mental illness is not limited to "psychosis"
or "active psychosis," but shall include all
conditions that result in the severity of
impairment described herein.
[N.J.S.A. 30:4-27.2r (amendatory
provision emphasized).]
The 1994 amendments added section d to N.J.S.A. 30:4-27.10.
d. The Attorney General, in exercise of the
State's authority as parens patriae, may
initiate a court proceeding for the
involuntary commitment of any person in
accordance with the procedures set forth in
subsection a. or b. of this section. When
the Attorney General determines that the
public safety requires initiation of a
proceeding pursuant to subsection b. of this
section, the Attorney General may apply to
the court for an order compelling the
psychiatric evaluation of the person. The
court shall grant the Attorney General's
application if the court finds that there is
reasonable cause to believe that the person
may be in need of involuntary commitment.
The Attorney General may delegate the
authority granted pursuant to this
subsection, on a case by case basis, to the
county prosecutor.
The 1994 amendments explicitly authorize the Attorney
General to participate in involuntary commitment proceedings.
(1) The Attorney General, or the county
prosecutor acting at the request of the
Attorney General, may supersede the county
counsel or county adjuster and assume
responsibility for presenting any case for
involuntary commitment or may elect to
participate with the county counsel or county
adjuster in presenting any such case;
[N.J.S.A. 30:4-27.12c(1).]
Furthermore, N.J.S.A. 30:4-27.13a now states that the Attorney
General may provide notice to appropriate parties if presenting
the case for the patient's involuntary civil commitment.
Finally, N.J.S.A. 30:4-27.13b currently provides that not only
could the members of the patient's treatment team testify, but
"any other witness with relevant information offered by the
patient or the persons presenting the case for civil commitment
shall also be permitted to testify."
The Legislature expressed its understanding of the nature of
the powers conferred on the Attorney General. It noted in a
statement connected with the amendments, that the bill "would
codify what is inherent in the Attorney General's common law
responsibility to act on behalf of the State, as parens patriae -- a grant of authority to seek civil commitment when the public
safety requires." Sponsor Statement to Assembly Bill No. 86, at
1 (Sept. 26, 1994) (hereinafter "Sponsor Statement").
In adopting these amendments, the Legislature explained its
purpose and intent as follows:
a. A small but dangerous group of sexual offenders and other violent offenders suffer from mental illness which rendered them dangerous to others and for the protection of
the public they are in need of involuntary
civil commitment for treatment.
b. The statutory standards for involuntary
civil commitment define "mental illness" in
terms of its impairment of judgement,
behavior and capacity to recognize reality.
The statutory standard provides for
involuntary commitment when such mental
illness causes the person to be dangerous to
others or property. Recommendations
concerning commitment are too often based in
the presence or absence of psychosis.
c. To ensure the public is not denied the
protection that the Legislature intended to
provide in enacting a law that calls for
involuntary civil commitment of the
dangerous mentally ill, it is necessary to
reaffirm and clarify the statutory standards
for civil commitment and revise the
procedures governing release of offenders and
civil commitment in order to ensure that the
full benefits of the civil commitment law are
realized.
The Appellate Division sharply disagreed over whether the proceedings that were initiated by the Attorney General to determine if D.C. should be involuntarily committed were valid in light of the statutory and regulatory scheme governing involuntary civil commitments. Those points of disagreement crystallize the issues that must be addressed on this appeal.
The Appellate Division majority determined that the 1987 civil commitment statute governed the proceedings that resulted in D.C.'s involuntary commitment. 281 N.J. Super. at 116-118. It never considered whether the 1994 amendments could be applied
retroactively. Relying on the pre-amendment provisions, the
court explained that the Legislature, pursuant to N.J.S.A. 30:4-27.1b, "made it clear that involuntary commitment proceedings
must strictly adhere to statutory safeguards." 281 N.J. Super.
at 116.
The majority found that the civil commitment statute
provides only two procedures for commencing an involuntary civil
commitment. Ibid. A proceeding may be commenced by the
recommendation of a mental health screening facility (N.J.S.A.
30:4-27.10a); or proceedings may be commenced by submission to
the court of two clinical certificates, at least one of which is
by a psychiatrist, recommending commitment (N.J.S.A. 30:4-27.10b). Id. at 116-17. The majority emphasized the importance
of county-based public mental health screening facilities and
that "screening service evaluation is the preferred process for
entry into short-term care facilities" (citing N.J.S.A. 30:4-27.4). The majority added that pursuant to N.J.S.A. 30:4-27.6,
even law enforcement officials must use a mental health screening
facility after taking into custody a person believed to be in
need of commitment. Id. at 117.
The majority concluded that "any deviation from these strict
procedures cannot be countenanced." Id. at 118. The Attorney
General, the court stated, must adhere to the directives of the
Legislature by following statutory procedure. Id. at 119-20.
The court ruled that the Attorney General should have directed
law enforcement officials to take D.C. into custody and transport
him to the Bergen County mental health screening facility for
evaluation by a mental health screener. Id. at 119-20. The
court also determined that the trial court did not have the
authority to issue an order requiring D.C. to submit to two
psychiatric examinations by private psychiatrists selected by the
Attorney General. Id. at 120.
Judge Shebell in dissent strongly disagreed with the
majority's conclusion that the Attorney General and the courts
were "powerless to by-pass the faulty opinion of the
institutional psychiatrists by obtaining independent psychiatric
evaluations." Id. at 122. The dissent found no evidence to
suggest that the Legislature prohibited any exceptions or
deviations from the civil commitment proceedings. Ibid. The
dissent concluded that: "In accordance with the State's parens
patriae authority, the Attorney General and the court recognized
their duty to protect the public interest and have done so while
scrupulously protecting D.C.'s due process rights." Id. at 123
(citations omitted).
Two bases are put forward to validate the actions of the Attorney General. One is that those actions are valid under the parens patriae jurisdiction. The other is that the 1994 amendments apply retroactively and the Attorney General's actions comply with those amendatory provisions. In the context of this
case and in light of the history of the 1994 amendments, these
issues functionally overlap.
The 1994 amendments reflect the legislative intent to codify
the Attorney General's parens patriae powers and explicitly
provide for the exercise of those powers. The statutory
amendment "codif[ies] . . . the Attorney General's common law
responsibility to act on behalf of the State, as parens patriae"
in seeking civil commitment. Sponsor Statement, supra, at 1. It
specifically authorizes the Attorney General to initiate
involuntary commitment proceedings if that is required in the
interests of "public safety." N.J.S.A. 30:4-27.10d. Because the
1994 amendments incorporate the common law parens patriae powers
of the Attorney General, an explanation of the nature and extent
of that source of authority is relevant to the interpretation and
application of the 1994 amendments.
The authority of the state to effect involuntary commitment
is derived from two sources: the police power and the parens
patriae power. Addington v. Texas,
441 U.S. 418, 426,
99 S. Ct. 1804, 1809,
60 L. Ed.2d 323, 331 (1979). "The authority of the
State to civilly commit citizens is said to be an exercise of its
police power to protect the citizenry and its parens patriae
authority to act on behalf of those unable to act in their own
best interests." In re S.L.,
94 N.J. 128, 136 (1983) (citations
omitted). See In re N.N., supra, N.J. at (slip op. at
23) (discussing the nature of the parens patriae authority).
Under the parens patriae theory, the state draws on "the inherent
equitable authority of the sovereign to protect those persons
within the state who cannot protect themselves because of an
innate legal disability," such as minority, mental illness or
incompetency. In re Grady,
85 N.J. 235, 259 (1981); In re S.L.,
supra, 94 N.J. at 136.
Though "[t]he States have traditionally exercised broad
power to commit persons found to be mentally ill," the United
States Supreme Court has determined that states must adhere to
certain procedures in order to commit involuntarily an
individual. Jackson v. Indiana,
406 U.S. 715, 736,
92 S. Ct. 1845, 1857,
32 L. Ed.2d 435, 450 (1972); see, e.g., Foucha v.
Louisiana,
504 U.S. 71, 80,
112 S. Ct. 1780, 1786,
118 L. Ed.2d 437, 448 (1992) (holding that states must prove by clear and
convincing evidence that person to be committed is mentally ill
and dangerous). "The civil commitment process must be narrowly
circumscribed because of the extraordinary degree of state
control it exerts over a citizen's autonomy." In re S.L., supra,
94 N.J. at 139. See In re N.N., supra, N.J. at (slip op.
at 23). "Because commitment effects a great restraint on
individual liberty this power of the State is constitutionally
bound," and its exercise must "comply with due process." In re
S.L., 94 N.J. at 137 (citations omitted). Thus, a person subject
to involuntary commitment is entitled to a judicial hearing, a
right of notice, the right to present evidence, and the right to
be represented by counsel. Ibid.; see Addington v. Texas, supra,
441 U.S. at 425-426, 99 S. Ct. at 1809, 60 L. Ed.
2d at 330-33
(finding that civil commitment of incompetent requires clear and
convincing standard of proof rather than mere preponderance of
the evidence); see also Foucha v. Louisiana, supra, 504 U.S. at
80, 112 S. Ct. at 1786, 118 L. Ed.
2d at 448 (same).
The Attorney General has long been vested with the
responsibility of protecting the public interest and enforcing
public duties by instituting appropriate civil actions in court.
See, e.g., Alexander v. New Jersey Power & Light Co.,
21 N.J. 373, 380 (1956) (discussing inherent powers and responsibilities
of Attorney General); In re Public Serv. Coor. Transport,
5 N.J. 196, 209 (1950) (same); Wilentz v. Hendrickson,
133 N.J. Eq. 447,
454-455 (N.J. Ch. 1943), order aff'd,
135 N.J. Eq. 244 (E & A
1944)(same). This Court has observed, however, that the State's
parens patriae powers are not absolute. The State's common-law
power to function as protector of the public interest is subject
to either "enlargement or abridgment" by legislative authority.
See Alexander, supra, 21 N.J. at 380. Moreover, the parens
patriae authority must conform to procedural and substantive due
process. In re S.L., supra, 94 N.J. at 139; In re Raymond S.,
263 N.J. Super. 428, 431-432 (App. Div. 1993). These constraints
serve to prevent arbitrariness, unfairness, and potential abuse
and to protect individual rights and interests.
The Appellate Division majority concluded that the civil
commitment statute did not contemplate deviations from its
procedural requirements. 281 N. J. Super. at 117. It stressed
that the Legislature emphasized procedural due process throughout
the statutory provisions. Id. at 116-17, citing N.J.S.A. 30:4-27.1(b) ("It is necessary that State law provide clear standards
and procedural safeguards that ensure that only those persons who
are dangerous to themselves, to others or to property, are
involuntarily committed"); N.J.S.A. 30:4-27.3 ("The standards and
procedures apply to all adults involuntarily committed");
N.J.S.A. 30:4-27.11a(c) ("[I]t is necessary to specify and
guarantee by statute those rights to which that patient is
entitled") (emphasis added). It construed these legislative
expressions as a clear directive that only the procedures
delineated by the statute could be used in involuntary
commitments.
The Appellate Division's conclusion that the 1987 commitment
statute abridged the parens patriae powers of the Attorney
General is countered by the Legislature's perception, expressed
in the 1994 amendments, that those powers were not so limited.
See e.g., Sponsor Statement, supra, at 1 (noting that the 1994
amendments "codify what is inherent in the Attorney General's
common law responsibility to act on behalf of the State, as
parens patriae . . . to seek civil commitment when the public
safety requires.") In effect, the fundamental parens patriae
powers have been expressly channelled into the civil commitment
statute as amended. The amendments to the statutory scheme for
involuntary commitments now expressly recognize and authorize the
exercise of the State's parens patriae powers to protect the
public welfare and to initiate civil commitment proceedings in
the exercise of that power. N.J.S.A. 30:4-27.10d. Because the
State's parens patriae authority is itself given a prominent
place under the current amendments, it directly implicates the
issue of the retroactive application of the amendments. That the
Legislature perceived that the Attorney General acted lawfully in
this matter bears most relevantly on whether the Legislature
intended that the authority codified and conferred by the 1994
amendments be exercised retroactively. We, therefore, turn to
that issue which, though not considered or resolved by the
Appellate Division is most vigorously argued by the Attorney
General before this Court.
It is well-settled that statutes generally should be given
prospective application. Gibbons v. Gibbons,
86 N.J. 515, 521
(1981). "It is a fundamental principle of jurisprudence that
retroactive application of new laws involves a high risk of being
unfair." Gibbons, supra, 86 N.J. at 522. It is "presumed that
provisions added by the amendment affecting substantive rights
are intended to operate prospectively." Schiavo v. John F.
Kennedy Hosp.,
258 N.J. Super. 380, 385 (App. Div. 1992), aff'd,
131 N.J. 400 (App. Div. 1993). We apply "a two-part test to
determine whether a statute could be applied retroactively."
Phillips v. Curiale,
128 N.J. 608, 617 (1992). The first part
questions "whether the Legislature intended to give the statute
retroactive application." Ibid. The second part involves
"whether retroactive application of that statute will result in
either an unconstitutional interference with 'vested rights' or a
'manifest injustice.'" Ibid. In applying this test generally,
there are three circumstances that will justify a retroactive
application of a statute: (1) where the Legislature has declared
such an intent, either explicitly or implicitly; (2) where the
statute is curative; and (3) where the expectations of the
parties warrant retroactive application. Gibbons, supra, at 522-23; see Savarese v. New Jersey Auto. Full Ins. Underwriting
Assoc.,
235 N.J. Super. 298, 308 (1989) (finding an expressed
intent to apply statute retroactively). However, even if a
statute is found to apply retroactively based on those factors,
under the second prong of the basic test, retroactive application
must not "result in `manifest injustice` to a party adversely
affected by such application." Gibbons, supra, 86 N.J. at 523.
"The `curative' exception comes into play when a statute
amends a previous law which is unclear or which does not
effectuate the actual intent of the Legislature in adopting the
original act." Schiavo, supra, 258 N.J. Super. at 386. The
purpose of a curative amendment is merely to "remedy a perceived
imperfection in or misapplication of a statute." Ibid. The
amendment explains or clarifies existing law and brings it into
"harmony with what the Legislature originally intended." Ibid.
The Legislature plainly stated the 1994 amendments do not
establish different or new standards and are designed to reaffirm
and clarify the existing standards as well as the Attorney
General's authority. See discussion, infra at __ (slip op. at
23) It was expressly recognized that:
This bill would not establish a different
standard for civil commitment of these former
inmates, like all other persons, they would
be subject to involuntary commitment only if
a court found them to be mentally ill and
dangerous to themselves, others or property.
The bill, however, would reaffirm and clarify
the standard for civil commitment applicable
to all persons to ensure that those who apply
the standard do not erroneously focus on the
presence or absence of psychosis in making
recommendations concerning the need for civil
commitment.
[Sponsor Statement, supra, at 13
(emphases added).]
The amendment revised the definition of "mental illness."
N.J.S.A. 30:4-27r. In amending the definition of mental illness,
the statute did not change or eliminate any of the original
language. The amendment merely added the following language:
The term mental illness is not limited to
"psychosis" or "active psychosis" but shall
include all conditions that result in the
severity of impairment described herein.
On its face, it is evident that the Legislature intended only to clarify the definition of mental illness to include conditions other than psychosis. N.J.S.A. 30:4-27.2, Historical and Statutory Notes (discussing background of 1994 legislative amendments). Furthermore, explicit statements surrounding the amendments unequivocally demonstrate the Legislature's concern that psychiatric evaluations not focus on "the presence or absence of psychosis." Sponsor Statement, supra, at 13 (characterizing change as one that "would reaffirm and clarify the standard for civil commitment applicable to all persons").
See generally, New Jersey Assembly Bill 155 --A Bill Allowing The
Civil Commitment Of Violent Sex Offenders After The Completion Of
A Criminal Sentence, 18 Seton Hall Legis. J. 890, 896 (1994)
(hereinafter "Assembly Bill") (discussing proposed amendments to
"correct flaw" in civil commitment statute to protect public).
The other major aspect of the amendments relates to the
authority of the Attorney General.
The legislative revisions explicitly permit the Attorney
General to seek involuntary commitment pursuant to the existing
procedures established in N.J.S.A. 30:4-27.10a and b. Under
those procedures, the Attorney General may present the court with
either the psychiatric findings of a screening facility, see
N.J.S.A. 30:4-27.10a, or two clinical certifications, at least
one of which is prepared by a psychiatrist, see N.J.S.A. 30:4-27.10b. The amendment goes further to establish specific
authorization for the Attorney General to seek to confine a
person as a basis for civil commitment. N.J.S.A. 30:4-27.10d.
Under that provision, the legislative authority granted to the
Attorney General is only to compel a psychiatric examination, not
civil commitment. Ibid. That determination is left to the
court, and then based only on reasonable cause to believe that
involuntary commitment is needed. Ibid. See, e.g., In re
Commitment of Raymond S., supra, 263 N.J. Super. at 431.
It was clearly recognized that the 1994 amendments "would
. . . give the Attorney General . . . clear statutory authority
to initiate timely civil commitment proceedings when
appropriate." Sponsor Statement, supra, at 13. Other
legislative history confirms that purpose of the amendments and
addresses the scope of the Attorney General's "discretion" to
initiate civil commitment:
Assembly Bill No. 86 of 1994 revises
procedures governing the release and
involuntary commitment of inmates convicted
of certain sexual offenses to ensure the
protection of the public is given due
consideration. The bill codifies the
Attorney General's common law responsibility
to act on behalf of the public in seeking
civil commitments.
The bill authorizes the Attorney General
or the county prosecutors, at their
discretion, to initiate civil commitment of
inmates determined to be mentally ill and
dangerous to the public.
[Fiscal Estimate to Assembly Bill
No. 86, at 1 (September 26, 1994)
(emphasis added) (hereinafter
"Fiscal Estimate.")]
"Courts will apply statutes retroactively when the
Legislature has expressed its intent, either explicitly or
implicitly, that the statute should be applied." Twiss v. State,
Dept. of Treasury,
124 N.J. 461, 467 (1991). The question that
must be addressed is whether the Legislature intended the
authority that it conferred on the Attorney General to be applied
retroactively. We conclude that the Legislature did.
The Legislature perceived that statutory authority delegated
to the Attorney General under the 1994 amendments simply
confirmed her parens patriae authority to seek a court order for
the involuntary commitment of a person scheduled for release
after serving his sentence, see N.J.S.A. 30:4-27.10c, or in
accordance with procedures specified under the statute. N.J.S.A.
30:4-27.10d. It is readily inferable that the Legislature
contemplated the existence of such authority in the Attorney
General to effectuate proceedings for a psychiatric examination,
and that the 1994 enactment essentially ratified and codified
that common law power. Thus, the 1994 amendments were intended
not only to validate the Attorney General's exercise of authority
through its retroactive application, but also to recognize the
validity of the actions taken.
The legislative intent to apply the amendments retroactively
is further bolstered by a consideration of the specific purpose
of those amendments and the contextual circumstances surrounding
their passage. The 1994 amendments were designed to protect the
public against a particular class of potentially dangerous
people: convicted sex offenders. Sponsor Statement, supra, at
12. The overall effect of the 1994 amendments to the involuntary
civil commitment statute, N.J.S.A. 30:4-27.1 to 27.10, is to
"revis[e] procedures governing the release and involuntary
commitment of inmates convicted of certain sexual offenses" in
order to ensure public safety. Fiscal Estimate, supra, at 1.
See generally Assembly Bill, supra, at 893 (discussing
introduction of early bill to "provide[] . . . `clear and
effective means' of confining dangerous individuals who are not
mentally ill" and to protect the public from "violent sex
offenders.")See footnote 1 The legislative history demonstrates that the
Legislature pointedly intended the amendments to address cases
such as D.C.'s.See footnote 2 In fact, D.C.'s release in 1992 was the
primary motivating factor behind the Legislature's enactment of
these amendments.See footnote 3
We conclude that the Legislature intended to enact remedial
legislation to effectuate its purpose to confine persons who are
found to be dangerous by virtue of mental illness. N.J.S.A.
30:4-27.1a; Assembly Bill, supra, at 893 (noting that amendments
were "to correct [a] flaw" in the civil commitment statute.) It
did so by clarifying the standards applicable to all persons
suffering mental illness; it thereby reaffirmed but did not
change existing law. Further, it authorized the Attorney General
to initiate commitment proceedings in the interest of public
safety by obtaining a psychiatric examination; it perceived that
it was codifying existing common law powers of the Attorney
General. Finally, it clearly intended that the law apply to
released convicted sexual offenders, specifically to offenders
like D.C., even though their release antedated the enactment of
the amendments.
The final test in the retroactivity analysis is whether that
application will result in "manifest injustice." This Court in
Gibbons, supra, cautioned that in determining whether
retroactivity should apply, courts must guard against the
potential for "manifest injustice." 86 N.J. at 523. That
element of the retroactivity analysis is informed by the
determination of whether D.C.'s constitutional rights of due
process would be violated by the retroactive application of the
1994 amendments.
Whether the procedures undertaken to commit D.C. were sufficiently protective of D.C.'s liberty interests implicates concerns of both substantive and procedural due process. The United States Supreme Court has held that involuntary commitment must be initiated by a judicial hearing at which the State must
prove by clear and convincing evidence that the individual is
mentally ill and dangerous to self or others. See Foucha v.
Louisiana, supra, 504 U.S. at 80, 112 S. Ct. at 1786, 118 L. Ed.
2d at 448; Addington v. Texas, supra, 441 U.S. at 426-27, 99 S.
Ct. at 1809, 60 L. Ed.
2d at 331-32; Vitek v. Jones,
445 U.S. 480, 492-93,
100 S. Ct. 1254, 1263,
63 L. Ed.2d 552, 564-65
(1980). These standards parallel our own constitutional
requirements. See In re N.N., supra, __ N.J. at 23-24; In re
S.L., supra, 94 N.J. at 138; In re D.M.,
285 N.J. Super. 481
(App. Div. 1995); In re Raymond S., supra,
263 N.J. Super. 428.
The statutory standard to establish that a person is "in
need of involuntary commitment" under the civil commitment
statute as amended satisfies the constitutional measure of
substantive due process. The standard requires both mental
illness and dangerousness, referring to
an adult who is mentally ill, whose mental
illness causes the person to be dangerous to
self, or dangerous to others or property and
who is unwilling to be admitted to a facility
voluntarily for care, and who needs care at a
short-term care, psychiatric facility or
special psychiatric hospital because other
services are not appropriate or available to
meet the person's mental health care needs.
The definition of mental illness prior to the 1994 amendments referred to "a current, substantial disturbance of thought, mood, perception, or orientation which significantly impairs judgement, behavior or capacity to recognize reality." N.J.S.A. 30:4-27.2r. The amendment of that definition does not
enlarge or change the intended meaning of the original
definition, but simply adds clarifying language to denote that
the definition of "mental illness" is not limited to or does not
require "psychosis." As earlier determined, mental illness so
clarified and defined does not derogate the importance of an
individual's liberty interest, and does not change the balance of
considerations that must be weighed in the involuntary commitment
determination. Supra at __ (slip op. at 10, 20-22).
Consequently, the retroactive application of the standard of
mental illness does not offend substantive due process.
We consider next whether D.C. was denied procedural due
process through the proceedings that led to his involuntary
commitment.
The dissent below concluded that "D.C. was afforded due
process by a less intrusive means than provided for under the
statutory procedure." 281 N.J. Super. at 123. We find in this
case, D.C. was afforded full procedural due process protections.
See United States Trust Co. v. New Jersey,
431 U.S. 1, 19 n.13,
97 S. Ct. 1505, 1516 n.13,
52 L. Ed.2d 92, 106 n.13 (1977)
(emphasizing that Due Process Clause of Fourteenth Amendment is
applicable only to retroactive criminal legislation, and
"generally does not prohibit retrospective civil legislation,
unless the consequences are particularly `harsh and
oppressive'"); Rothman v. Rothman,
65 N.J. 219, 225 n.4 (1974)
(same). Cf. In re Raymond S., supra, 263 N.J. Super. at 432-34
(finding involuntarily committed patient deprived of procedural
due process when among other factors patient's counsel was not
afforded opportunity to cross-examine and examining doctor had
not undertaken a recent or careful examination). D.C. was
afforded notice, the opportunity to challenge the sufficiency of
the application, adequate prehearing examinations, full hearings,
representation of counsel and the opportunity to present evidence
and confront witnesses through cross-examination. These
procedural protections apply in civil commitment hearings. In re
S.L., supra, 94 N.J. at 137 (citing Vitek v. Jones, supra, 445
U.S. at 480, 100 S. Ct. at 1254, 63 L. Ed.
2d at 552). D.C.'s
rights were scrupulously protected throughout every stage of the
commitment process, from the initial commitment proceeding,
through the plenary commitment hearing and subsequent commitment
review proceedings. In view of the proceedings in their
entirety, D.C. suffered no violations of constitutional
procedural due process.
We also conclude that the proceedings below did not subject
D.C. to a "manifest injustice." The concern that is implicated
by the standard of "manifest injustice" in assessing the
retroactive application of a statute need not reach
constitutional levels. Hence, while our inquiry into whether
there has been a "manifest injustice" is informed by our
consideration of issues of constitutional due process, it is not
necessarily determined by those issues. Rather we look to
matters of unfairness and inequity. Phillips v. Curiale, supra,
128 N.J. at 625. In the typical setting concerning "manifest
injustice," reliance on existing law by the affected party and
the unfairness of changing that law are the important factors in
making the retroactivity decision. Gibbons, supra, 86 N.J. at
523-24.
Here, there can be no concerns arising from a reliance on
existing commitment laws that would render the application of the
1994 amendments unfair, arbitrary, or inequitable. There can be
no plausible contention that a convicted sex offender with a
history of mental illness and dangerousness would have an
expectation derived from a reliance on existing commitment laws
that he would, subject to full due process, not be required to
submit to a psychiatric examination if his conduct posed a danger
to the public safety. We are satisfied that the retroactive
application of the 1994 amendments did not result in "manifest
injustice."
Finally, we consider whether there was sufficient evidence to order the commitment of D.C. The scope of appellate review of a commitment determination is extremely narrow and should be modified only if the record reveals a clear mistake. State v. Fields, 77 N.J. 282, 311 (1978); In re Commitment of J.L.J., 196 N.J. Super. 34, 49 (App. Div. 1984), certif. denied, 101 N.J. 210 (1985). The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether
the lower courts' findings were clearly erroneous. Fields,
supra, 77 N.J. at 311.
The final determination of dangerousness lies with the
courts, not the expertise of psychiatrists and psychologists.
Courts must balance society's interest in protection from harmful
conduct against the individual's interest in personal liberty and
autonomy. The ultimate decision on dangerousness is, therefore,
a legal one, not a medical one, even though it is guided by
medical expert testimony. In re Newsome,
176 N.J. Super. 511,
516 (App. Div. 1980); State v. Krol, supra, 68 N.J. at 261.
The record contains the medical opinions of eight experts.
They testified at different stages of the proceedings below: Dr.
Jackson's certification was used in determining whether a
psychiatric examination was needed; Drs. Chamberlain and Kern
testified as a basis for determining temporary involuntary
commitment; Drs. Martindale, Chamberlain, Kern, and Greenfield
testified about the need for continued involuntary commitment;
Drs. Cohen, Chamberlain, Sadoff, and Ghahramani testified at the
first commitment review hearing; and Drs. Ghahramani, Greenfield,
and Liccardo testified at the second commitment review hearing.
At the various stages, the trial courts determined that D.C.
was dangerous. According to N.J.S.A. 30:4-27.2i, being dangerous
to others or property requires "that by reason of mental illness
there is a substantial likelihood that the person will inflict
serious bodily harm upon another person or cause serious property
damage within the reasonably foreseeable future." The
determination of dangerousness may consider "a person's history,
recent behavior, and any recent act or threat." N.J.S.A. 30:4-27.2i.
All the physicians concluded that D.C. suffered from an
anti-social personality disorder and fantasies of sexual sadism.
They disagreed about whether "psychotic behavior" was required
for mental illness commitment. Regardless of that disagreement,
their findings provide ample evidence of D.C.'s dangerousness
caused by his condition of mental illness.
Dr. Jackson found that D.C. presented a clear and present
danger to others due to his rage, low self-esteem, resentment,
impaired judgment, and stated desire to commit more crimes
including murders. Dr. Chamberlain found that D.C. was mentally
ill as a dangerous, disturbed, schizoid person with hostile
aggressive thoughts who could not distinguish his uncontrollable
fantasies from reality. Dr. Kern found that D.C. was not
imminently dangerous but an extremely angry person with an
inability to distinguish his fantasies from reality. He felt
D.C. was mentally ill and potentially dangerous to others. Dr.
Martindale felt D.C. suffered from a significant character
disorder that dwelled on violent fantasies. According to Dr.
Martindale, D.C. was mentally ill and was more likely to commit
future sexual assaults than the average person would.
Dr. Greenfield believed D.C. showed signs of progress,
appeared to be in control, and was not mentally ill. The doctor
believed that D.C. had no substantial likelihood of dangerous
conduct even if he was potentially dangerous. Dr. Sadoff,
retained by Trenton Psychiatric Hospital to provide an
independent opinion, believed D.C. was not mentally ill because
he did not appear to be psychotic. Dr. Sadoff did not predict
whether he posed a danger to the community.
Seven of the eight physicians, all except Dr. Jackson,
believed they could not pre