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State in Interest of D.G.W.

Decided: June 25, 1976.


For remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None. The opinion of the Court was delivered by Hughes, C.J.


D.G.W., a juvenile, was charged with participating in 1973 and 1974 with three others in four instances of breaking and entering certain residences and school buildings and with theft and destruction of property therein worth thousands of dollars. If found guilty of these offenses, D.G.W. could be adjudicated a juvenile delinquent and incur statutory sanctions under N.J.S.A. 2A:4-14 et seq., now N.J.S.A. 2A:4-42 et seq.

Pleas of guilty to three of the charges were entered by agreement and one charge was dismissed.

The Juvenile and Domestic Relations Court judge placed the appellant on probation for one year, which he had authority to do under the statute, N.J.S.A. 2A:4-61(c). He determined, over the objection of defense counsel, to apply as a condition to such grant of probation the making of restitution to a victim of the offense.

The court ordered that the specific amount of restitution (as related to the damages caused by the juvenile misdeeds) be "worked out" with the probation department of the county. The judge further announced his availability to settle any dispute.

Thereafter (as indicated in an expanded record ordered by the Appellate Division), the probation department assembled a list of specific items of damage at one of the school buildings totaling $626. Since four individuals had taken part in the depredations, D.G.W. was ordered to be responsible for one-fourth of the total damage or $156.50. This pro rata distribution did not originate with the Court, but was suggested by the probation department. The estimated values of the damaged items of property were "based

on the cost of repairing damaged machines plus the cost of materials and overtime estimated by their maintenance supervisor for damages to the building." No further verification of the amounts was requested by any of the four culprits. Accordingly D.G.W. neither requested nor received a hearing which would have permitted him to challenge the probation department's determination of the amount of restitution in his case.

Having failed to convince the Juvenile and Domestic Relations Court of its lack of jurisdictional authority to order restitution,*fn1 D.G.W. appealed to the Appellate Division. While his appeal was pending there unheard, we granted certification, 68 N.J. 497 (1975), primarily to examine the jurisdictional capacity vel non of the court to attach a condition of restitution to a probationary term granted a juvenile offender. Should that question be answered in the affirmative, the further question arises as to the due process rights of the juvenile incident to determination of the extent and terms of the restitution order.

The Attorney General joined as amicus to assist the Court in deciding the primary question of the power and jurisdiction of the Juvenile and Domestic Relations Court to order restitution in such manner, particularly in view of this Court's decisions in State v. Mulvaney, 61 N.J. 202 (1972) and State in Interest of M.L., 64 N.J. 438 (1974). In Mulvaney the defendant was ordered to pay as a condition of probation one-fourth of the State's prosecution expenses. This Court vacated the imposition of these costs,

qua costs, under N.J.S.A. 2A:168-2, to the extent that they exceeded the amounts allowed under the specific statute dealing with costs in criminal causes, N.J.S.A. 22A:3-1 to 6. And this result was reached in the face of a statutory authorization to a court, N.J.S.A. 2A:168-2, to include as a condition of probation that the probationer "* * * shall pay a fine or the costs of the prosecution, or both, * * *." This Court was unable to find in such language "* * * a grant of authority to originate a liability for costs which is not authorized by another statute." State v. Mulvaney, supra, 61 N.J. at 204 (emphasis added).

Following the doctrine of Mulvaney, Justice Sullivan wrote for this Court in M.L. that "the provision in the general probation and parole law authorizing a court to require payment of a fine as a condition of probation does not confer upon a court the power to impose a fine. It only authorizes the court to require payment of a fine as a condition of probation where a fine is otherwise provided for by law. This is clear from our decision in State v. Mulvaney * * *." State in Interest of M.L., supra, 64 N.J. at 443 (emphasis in original). And since the Legislature had never provided for the imposition of a fine on a juvenile offender, this Court determined that the Juvenile and Domestic Relations Court had no power to impose one, even as a condition of probation.

The bases of the holdings in Mulvaney and M.L. were primarily matters of statutory interpretation. In Mulvaney the Court recognized that the broad terms of N.J.S.A. 2A:168-2 must be read in pari materia with the statutory limitation on costs in criminal causes reflected in N.J.S.A. 22A:3-1 to 6. In M.L., the Court was unable to discern in the legislative plan with regard to the correction of juveniles a source of the power to impose a fine as a condition of probation or otherwise. Contra, the power to commit to an institution or make other disposition authorized by statute. N.J.S.A. 2A:4-61.

The omission by the Legislature of the sanction of a fine against a juvenile offender seems clearly responsive to the general legislative purpose. Fines are essentially punitive in nature, State v. DeBonis, 58 N.J. 182, 192 (1972), whereas the statutory policy with respect to juveniles is to correct and rehabilitate rather than punish. Justice Jacobs stated for this Court in State v. Monahan, 15 N.J. 34, 45 (1954) that:

Centuries of history indicate that the pathway lies not in unrelenting and vengeful punishment, but in persistently seeking and uprooting the causes of juvenile delinquency and in widening and strengthening the reformative process through socially enlightened movements. Cf. A.L.I. Draft, Youth Correction Authority Act, ยง 16 (1940). Amongst the states, New Jersey has long been in the forefront in its recognition and development of this pathway; * * *.

In the same case, Justice Heher, concurring, wrote:

Child delinquency is largely due to broken homes and parental irresponsibility and default, and unfavorable environmental and associated factors, involving pressures that are ofttimes beyond the child's control; and the State, as parens patriae, undertakes * * * to provide for the wayward victims protective custody, care, discipline, and correctional treatment to fit them, psychologically and physically, for a useful social life. * * * The policy is both preventive and reformative. * * * Wayward children are a community problem; adult behavior ofttimes has its roots in childhood experiences. The redemptive process concerns diagnostic techniques and child therapy, by psychologic, psychiatric and other modes and methods which are not of immediate interest. There are those who would question the wisdom and efficacy of sociological techniques. But, once the legislative field of action is conceded, the legislative policy is not a justiciable issue. [ Id. at 52-53].

It is against this background that we must determine the threshold question; -- whether restitution in its broad sense, including the concept of reparation, may be a valid condition of probation imposed upon a juvenile offender; -- or whether it, in essence, would come within the Court's reasoning in Mulvaney and M.L., supra, as being discordant with the legislative purpose.

Beyond the validity of the restitution condition itself and the procedural due process necessary for the determination of the extent and terms of restitution to be made, are subsumed other questions raised by appellant. Where several participants are involved in a joint act of theft or vandalism, and all are required to make restitution, is a pro rata distribution of its burden appropriate? What is the relationship between indigency or ability to make restitution and the enforceability of the remedy of compelling restitution? What is the status of such remedy in the face of actual or potential claim for such damages in a civil action?


As to the disposition of juvenile delinquency cases, the statute provides:

N.J.S.A. 2A:4-61. Disposition of delinquency cases.

If a juvenile is adjudged delinquent the juvenile and domestic relations court may order any of the following dispositions:

c. Place the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed 3 years upon such written conditions as ...

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