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State v. Klemmer

Decided: February 16, 1989.


Haines, A.j.s.c.


This opinion concludes that the Intoxicated Driver Resource Centers ("IDRCs") are operating without any valid rules of procedure, and therefore, deny due process to persons who are sentenced to them.

Keith Klemmer was charged with drunk driving in violation of N.J.S.A. 39:4-50. On advice of counsel, he pled guilty before the Chesterfield Township Municipal Court. A mandatory minimum first offender sentence was imposed. The sentence included the statutory requirement that he spend 12 hours, over two days, at an Intoxicated Driver Resource Center and fulfill the conditions of any treatment program designed for him by the center.

Klemmer satisfied the 12-hour requirement and was then referred to the Mercer County Council on Alcoholism for further evaluation and direction as to participation in additional programs. Center personnel advised him that the referral was dictated by his background, age and involvement in construction work. At Mercer, after a brief exchange of questions, he was told that further counselling was required. He expressed his understanding that he was entitled to a further evaluation

but was told that once he was sent to the council further programs were expected. He was required to attend 15 counselling sessions at a cost of $35 each. In addition, he was to attend one Alcoholics Anonymous ("AA") meeting every week.

Klemmer executed a written "contract" with the council. As to weekly AA meetings, it provided that "more may be required"; it also stated: "If additional assignments or treatment are called for, they must be completed for the client to be successfully released from the program." The agreement concluded: "For successful release from the program, all of the above criteria must be met. In addition, there must be a significant change in the client's attitude and behavior with regard to the use of alcohol and other drugs." Klemmer, after consulting an attorney, refused to comply with these program requirements.

As a result the IDRC forwarded a "noncompliance report" to Klemmer, the Division of Motor Vehicles and the Chesterfield Township Municipal Court. The Division, without further notice, in disregard of N.J.S.A. 39:5-30, N.J.S.A. 52:14B-11 and basic principles of due process, suspended his driver's license until he satisfied Bureau of Alcohol Countermeasures and IDRC requirements.

Klemmer, through counsel, applied here for the restoration of his license and a hearing with respect to the noncompliance report. This court, sitting as the Municipal Court of Chesterfield Township, issued an order reinstating the license and providing for the necessary hearing. It would have been improper for the municipal court judge, whose order subjected Klemmer to the IDRC proceedings, to consider the charge that his order had been violated. The non-compliance report, in effect, charged Klemmer with a contempt; if convicted, he would be imprisoned for two days. N.J.S.A. 39:4-50(b) provides that "failure to satisfy . . . [IDRC] requirements shall result in a mandatory two-day term of imprisonment in a county jail" as well as suspension of driving privileges.

The alleged contempt did not take place "in the face of the court." "[C]ontempt in the face of the court is conduct that a judge can determine through his own senses is offensive and that tends to obstruct the administration of justice." In Re Yengo, 84 N.J. 111, 123 (1980). Klemmer's charge, therefore, had to be heard by a judge other than the judge who issued the IDRC order. In re Ruth M. Buehrer, 50 N.J. 501, 515 (1967).

Questions were raised at the contempt hearing concerning the constitutionality of the IDRC statute and procedures. Since these claims challenged the validity of the original municipal court sentence, counsel for Klemmer, at the court's suggestion, filed a notice of appeal from that sentence. The State did not object to this procedure.*fn1

Notice of the constitutional challenges was given to the Attorney General who elected not to appear. He relied upon the county prosecutor for the defense of Klemmer's claims.

A. The Mootness Question.

Klemmer, his expert witness and IDRC personnel testified in the contempt -- post-conviction proceedings. Briefs and oral argument were considered. Some weeks after the completion of hearings and the draft of an opinion, the court, concerned that counsel had not fully appreciated the potential consequences of a failure to publish IDRC rules, offered counsel an opportunity to submit further briefs on that issue. Shortly thereafter the Bureau of Alcohol Countermeasures sent the following letter, dated January 17, 1989, to Klemmer:

Your case was sent out for second opinion. As you are aware, we offered you a second opinion. The second opinion indicated that although your case is borderline, on balance treatment is not necessary. We have informed the Mercer IDRC to withdraw the noncompliance report on you.

A copy of this letter was sent to the court by the prosecutor with a covering letter which stated in part:

I have received official correspondence indicating that Mr. Klemmer's case has been referred for a second opinion and has been reversed. The enclosure within may more fully elaborate the specifics of this decision.

As aftercare is no longer required, Mr. Klemmer is no longer in non-compliance and there is no longer a case in controversy on which to deliberate.

It would seem therefore, that the Klemmer case is moot and should be terminated.

The statement that Klemmer had been offered a second opinion is contrary to the record. The initiation of the letter decision is not authorized by any procedural rule governing IDRCs, a circumstance of no moment in an ordinary setting. No notice of any reconsideration of the non-compliance ruling was given to the court or, apparently, to Klemmer. The exonerating conclusion was reached after this court offered counsel the opportunity to provide further briefs addressing the publication issue. In fact, the rules were not published and, as this opinion later holds, that failure is fatal to the State's position.

These circumstances are troublesome. The State now seeks a dismissal of the proceedings on the ground that they are moot. Its 11th-hour maneuver appears to be designed to prevent a decision on the merits, although the prosecutor represents the bureau's action as reflecting a genuine concern for the fair treatment of Klemmer. However, Klemmer, notwithstanding the volunteered generosity of the State, presses for a decision on the central issues. That decision, under all the circumstances of this case, is one that he is entitled to receive.

In the first place, granting the motion to moot the IDRC issues in this case would ignore the State's obligation of fairness. In criminal and quasi -criminal cases the State, acting through the prosecutor, must see that justice is done. State v. Grillo, 11 N.J. 173, 184 (1952); RPC 3.8(a). In the present case, the State had two obligations: (1) to provide Klemmer with any relief to which he was entitled, and (2) to concede the unenforceability of its IDRC rules when that became apparent. Its first obligation to Klemmer was satisfied, though only in part, by its last minute letter. Its duty, however, was much

broader. IDRC procedures affect the public interest; as many as 25,000 persons a year are subjected to them. The public is entitled to know that these procedures are defective when that conclusion becomes clear. It would be highly improper for the State to subject DWI offenders to IDRC procedures knowing it had no right to do so. Such conduct would be contrary to every concept of fair play.

The Bureau of Alcohol Countermeasures does not control this controversy. Klemmer has attacked the validity of the sentence imposed upon him by a municipal court in the context of a judicial contempt proceeding brought by the State. That proceeding may not be dismissed without the consent of the court. R. 7:1 and R. 3:25-1. This court does not consent.

The bureau had no valid rules of procedure in force. Its exonerating action was taken without authority and was therefore a nullity. Klemmer's IDRC sentence was illegal. The IDRCs were operating without rules, and therefore, without due process. Klemmer served part of his sentence. He has the right to have that sentence corrected, the illegality erased. The rule, in a parole revocation setting, is set forth in Bd. of Trustees of Youth Correct Cent. v. Davis, 147 N.J. Super. 540 (1977):

While the collateral legal consequences inherent in a conviction or probation revocation may be more serious than those resulting from a parole revocation, we cannot agree, as the weight of authority would have it, that they are so insubstantial as to be outweighed by the legitimate policy concerns underlying the mootness doctrine. It is true, of course, that a record of conviction, and to some extent of a probation revocation as well, has prejudicial civil connotations, whereas the parole revocation generally becomes of moment only if defendant finds himself subsequently caught up once more in the criminal process. But we believe that such a defendant is entitled to proceed through that process, including sentencing and future parole release applications, unprejudiced by an improperly founded prior parole revocation. See, generally, Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); and see Blake v. Mass, Parole Board, [369 Mass. ...

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