Halpern, Larner and King. The opinion of the court was delivered by King, J.A.D.
This appeal is taken by the Commissioner of the Department of Human Services, Ann Klein, from orders of the trial court transferring inmates Patterson and Bohuk, both convicted of violent crimes and serving lengthy State Prison sentences, from the maximum security Forensic Psychiatric Section (Forensic Section), sometimes known as the Vroom Building, at the Trenton Psychiatric Hospital, to the state mental hospitals at Ancora and Marlboro, respectively. We have stayed the orders of transfer pending resolution of this appeal.
Patterson was sentenced to State Prison for 13 to 15 years following a conviction for rape committed while he was a patent at the Ancora Psychiatric Hospital. Bohuk was sentenced to State Prison for a life term following a conviction for murder. Both inmates required psychiatric care
while serving their sentences at the State Prison and were transferred by the Commissioner to the maximum security Forensic Section for treatment. There is no psychiatric, facility in the State Prison.
Patterson and Bohuk came before the trial court pursuant to the commitment and review procedures embodied in N.J.S.A. 30:4-82 and R. 4:74-7. The trial judge in a reported opinion, 148 N.J. Super. 515 (Cty. Ct. 1977), ordered the transfers to the minimum security hospitals at Marlboro and Ancora on the basis of the convicted inmates' right to treatment under the least restrictive conditions as patients of the state mental hospital system pursuant to N.J.S.A. 30:4-24.2(e)(2). We find the trial court had no jurisdiction to order the transfers and reverse.
The controversy involves a question of statutory construction, i.e. , whether the Commissioner or the trial court has the power to order the transfer and designate the institution appropriate for the treatment of State Prison inmates who become mentally ill or require psychiatric care while serving sentences. The question has never been directly confronted judicially and the legislative intent in this precise situation is not expressly stated.
The Forensic Section of the Trenton Psychiatric Hospital is the only mental hospital in the system with maximum security facilities. The population of the Forensic Section is composed of persons who have become mentally ill or require psychiatric care while serving criminal sentences, persons unable to stand trial because of mental illness, and persons tried and acquitted by reason of insanity. The Forensic Section is also used to house patients civilly committed to the state hospital system requiring a maximum security facility because of their particularly dangerous tendencies. See Singer v. State , 63 N.J. 319 (1973).
Prior to these hearings, which were conducted in January 1977, the Commissioner announced a policy by administrative bulletin requiring sentenced prisoners, convicted of enumerated violent crimes, including rape and murder, to be
placed in the Forensic Section when transferred from the prison system to the psychiatric hospital system. The Commissioner contends she has the sole power to make this decision under the controlling statutes, subject only to the usual standard for appellate review of state administrative action by the Appellate Division under R. 2:2-3(a)(2). The Public Advocate, on behalf of Patterson and Bohuk, contends there is concurrent jurisdiction, shared by the trial courts and the Commissioner, to effect transfers and designate the proper institution for treatment.
N.J.S.A. 30:4-25 defines five classes of commitments. Involuntary commitment of a person serving a criminal sentence is designated Class "E" and controlled by N.J.S.A. 30:4-82 which states, in part pertinent to this issue, that when any person confined under sentence becomes mentally ill the County Court may, "in an action like an action for commitment, determine the mental or physical condition and legal settlement of such person." If the court concludes the inmate is mentally ill, the statute directs removal from confinement in the penal system and orders confinement "in one of the institutions for the care and treatment of such persons owned by this State" or "owned by one of the counties of this State, until such person is improved or removed or discharged according to law." Id.
The Public Advocate, on behalf of Patterson and Bohuk, urges the following language from N.J.S.A. 30:4-82 supports his contention that the trial judge has the power to select the institution where a State Prison ...