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Morales v. County of Hudson

New Jersey Superior Court, Appellate Division

Decided: October 23, 1989.


On appeal from Superior Court, Chancery Division, Hudson County.

Petrella, Havey and Stern, JJ. The opinion of the court was delivered by Stern, J.A.D.


[236 NJSuper Page 409]

The Department of Corrections (DOC) and its Commissioner appeal, pursuant to leave granted, from portions of a post-judgment order entered July 20, 1989 requiring him to "temporarily transfer" 100 county sentenced inmates "from the Hudson County Pavonia Avenue Jail to a state or other county correctional facility." The County of Hudson appeals from portions of the same order which placed it "under the obligation to undertake the construction of additional Correctional Facilities."*fn1 We denied stays pending appeal by the Commissioner and the County, as did the Supreme Court. However, we consolidated and accelerated the appeals.

Subsequently, the Commissioner constructed and opened a facility in Secaucus, known as "Tent City", where up to 100 county inmates of the Hudson County Jail (and at times greater numbers) have been housed since August 16, 1989. On September 1, 1989 the trial judge ordered the Commissioner to "use his best efforts to keep a population of approximately 100 inmates in the tent facility established by the Commissioner." On motion of the Commissioner we declined to close the facility but ordered a staged attrition based on the parole, completion of sentence or release of inmates transferred there. We also denied a motion filed on the eve of argument by amicus curiae, appointed by the trial court "to represent the criminal justice

[236 NJSuper Page 410]

system,"*fn2 to remand this matter so that the trial judge could order the Commissioner to review the County's proposed amendments to his construction plan. That plan, approved by the trial judge in the July 20, 1989 order, required construction by the County of the additional correctional facilities.


This matter, originally initiated as a class action by inmates of the Hudson County Jail on Pavonia Avenue in Jersey City (hereinafter "jail" or "Pavonia Avenue Jail") in or about 1981, is based on their claim that severe overcrowding and other deficiencies in the jail violated their constitutional rights.*fn3 After a trial Judge Gregory J. Castano's written decision on May 19, 1982 found that the conditions in the Jail were "intolerable and shocking to the conscience" and constituted an "infringement of the constitutional rights" of the inmates.

In concluding that "judicial intervention in this case has become indispensable," Judge Castano further noted:

courts in the first instance will always defer to local governing authorities in the administration of their prisons, but if the institution does not conform to constitutional minima and the authorities do not act, the court must put aside that deference and take whatever steps may be necessary to remedy the violations. [citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974)].

Judge Castano held that the jail originally designed for 280 inmates, but then containing 553 inmates (including pretrial

[236 NJSuper Page 411]

detainees),*fn4 would have to be closed no later than June 1, 1987 if the conditions were not corrected. Jurisdiction was retained by the trial court "to monitor compliance" with its order while the County constructed "a new jail facility" and renovated the existing jail "in conjunction with the new facility" or implemented "any reasonable alternative."

On March 8, 1983, upon denying a motion for direct certification of an appeal, subsequently dismissed as moot, the Supreme Court entered an order remanding this matter to the trial court, for the limited purpose of conducting hearings to determine a schedule of temporary inmate removal to permit the completion of a fire and life safety system at the jail and authorizing a trial court order directing the removal of "49 State-sentenced inmates" to the custody of the Commissioner of Corrections.

Despite the trial court's continuing supervisory efforts in this matter, the County has failed with sufficient speed to remedy the unconstitutional conditions which have magnified at the jail.*fn5 On January 22, 1987, Judge Burrell Ives Humphreys, who subsequently took over responsibility for post-judgment proceedings, concluded that "the repeated failures and laxity of county officials . . . can simply not be permitted to continue". On February 4, 1987 he entered an order directing the county "to treat the jail construction and renovation project as urgent and to pursue it with diligence and expedition". Thereafter, plans for the construction of a new jail facility in Kearny, now scheduled to be completed in 1991, were finalized.

It is undisputed that the population of the Pavonia Avenue Jail has substantially increased since 1982, and it can hardly be

[236 NJSuper Page 412]

debated that that facility has been overcrowded at all relevant times.*fn6

The worsening conditions at the Pavonia Avenue jail, originally documented in the findings of Judge Castano (including a lack of medical and recreational facilities, an inadequate infrastructure, years of deferred maintenance and a burgeoning population) resulted in an even greater level of overcrowding than had been determined to be unconstitutional in 1982. The consequent deterioration of conditions were discussed at various status conferences held in this matter before Judge Humphreys in 1988 and 1989. As a result of the alarming increase in the jail population, Judge Humphreys held an emergency hearing on September 23, 1988 and found that "[e]mergent and dangerous conditions exist [that] unless promptly remedied pose a serious risk to public safety and well-being of the correction officials . . . and inmates at the jail."

By order dated October 14, 1988, Judge Humphreys ordered implementation of emergency measures, including transfer of inmates from Pavonia Avenue to the Annex in Secaucus, temporary assignment of judges to the criminal division, review of bails by the Prosecutor and relocation of offices at the jail to provide additional space for inmates. That order further provided that the DOC was to remove all state-sentenced inmates

[236 NJSuper Page 413]

from Hudson County.*fn7

Pursuant to the same order, the County was further directed to expedite the acquisition and use of additional trailers at the Jail Annex in Secaucus and to immediately search for additional facilities to house inmates on an emergency basis. After another hearing on October 28, 1988, the County was further directed on November 2, 1988 to search for additional custodial facilities for 250 to 350 prisoners "to be made ready for use as soon as possible." In response, the County proposed the construction of prefabricated jail units on an expedited basis on the site where the new jail is being constructed in Kearny. That proposal was approved on January 24, 1989 and that facility is now scheduled to open later this month.*fn8

On November 2, 1988, Judge Humphreys also ordered DOC to inspect the Pavonia Avenue Jail and provide a report to the court on the conditions there and on the maximum number of prisoners that it could hold. In a memorandum, dated November 7, 1988, the DOC reported that 546 is the "maximum number of inmates who can be housed without, in the words of the court order, 'violating minimal standards of human decency.'" At the time of this recommendation the population of the jail was approximately 675. In addition, the DOC report noted that 546 could be housed there only if repairs were made in the areas of plumbing, electrical systems, sanitation and fire safety; proper supervision, management and maintenance were instituted; every inmate received a bunk; recreation was provided daily and prisoner discipline was maintained. It was also

[236 NJSuper Page 414]

noted that the conditions at the jail had deteriorated since the last DOC inspection eleven months earlier.

Despite additional emergency measures instituted to expedite processing of cases within the Hudson County Criminal Justice system, the jail population continued to climb. By March 17, 1989 the population reached 728.

After a hearing on May 18, 1989, Judge Humphreys found that an emergency existed at the Pavonia Avenue Jail due to the existing conditions. He specifically found:

The jail population will likely rise substantially between now and October [1989], when the new 300 bed facility will be ready. The question therefore is whether this continued and increasing unconstitutional overcrowding can and should be tolerated between now and October. The court concludes it should not.

Unconstitutional overcrowding for that period of time, coupled with the long period of time that has already passed, is grossly unjust. Moreover, it is dangerous to inmates and to correction officials at the jail. It poses a clear and substantial risk of serious disturbances at the jail with a consequent potential for loss of life and property.

In his opinion, the judge determined that the Commissioner has the legal authority and duty to act upon a showing that a county jail "is in willful and continuous disregard of the [Department's] minimum standards for such facility," N.J.S.A. 30:8-57, and that "[t]he Commissioner's continuing failure and refusal to act is arbitrary, unreasonable and capricious." The judge rejected a jurisdictional attack on his authority to review state administrative action, citing numerous orders entered in the case requiring DOC action without challenge by appeal.

In accordance with his May 18, 1989 opinion, Judge Humphreys directed the Commissioner to provide the trial court, within ten days, with a plan for a phased reduction in the inmate population of the Pavonia Avenue Jail to a "constitutional level" of 546 inmates. This was to be accomplished through the relocation of inmates to other state or county correctional facilities or by directing the County to provide additional facilities on an emergency basis.

[236 NJSuper Page 415]

The DOC devised a plan as directed by the court. The plan, which was submitted on June 6, 1989, called for the County to accelerate the construction of the prefabricated jail units in Kearny by using 24-hour shifts and weekend work, and to build a new modular jail in Secaucus near the Annex. The plan listed various factors, including rejection of other alternatives, in support of the recommendation.*fn9

Before the court could review the plan, new factual information was presented by the prosecutor indicating that the overcrowding at the Pavonia Avenue Jail was going to be much more severe than anticipated. According to the prosecutor, the increased disposition rate was going to cause the jail population to rise dramatically over the summer until, if no action was taken, the population could reach as high as 1400. In light of this new information, the DOC was directed to reassess its plan submitted pursuant to the May 18, 1989 order.

The revised plan, dated June 27, 1989, continued to call for the County to accelerate construction of the prefabricated jail or "modular units" in Kearny, now scheduled for completion this month. However, the new plan also required the County to install individual trailers within 30 days at "Warehouse 77," a federal facility in Kearny to be conveyed to Hudson County, and in Secaucus, in place of the proposed modular units to be constructed in Secaucus, as the June 6th plan had required.

[236 NJSuper Page 416]

Absent from the Commissioner's plan was any action relating to the relocation of Hudson County's excess jail population to other penal facilities in the interim.

Evidentiary hearings were held to determine whether DOC's revised plan was a feasible and effective response. In his testimony, on July 10, 1989, Assistant Commissioner Gary Hilton (Hilton) confirmed that the DOC accepted the May 18, 1989 order as significantly redefining its responsibility to county jail inmates and that its plan for the County was prepared pursuant to that order.

Hilton testified that state correctional facilities are currently operating at 118% of capacity. He acknowledged that the Pavonia Avenue jail is an "older facility", which is "clearly one of the more crowded facilities" in the state, but emphasized that there were other county facilities "as crowded". Hilton also stated the need for a statewide DOC policy "equally available and accessible to all counties." He indicated that "any County would expect an evenhanded and . . . equal treatment and equal consideration and equal entitlement from the Department of Corrections." Thus, he testified that DOC feared that the transfer of county inmates from Hudson County to state facilities would set a "catastrophic" precedent which,

could not be equally and equitably extended to all other Counties, who have, by whatever methods and remedies, have managed their County populations. It would be a policy that would be unique to this particular setting and we cannot view the Hudson County situation with perhaps the same parochial eye that some might.

During the course of this hearing, Hilton was also questioned regarding DOC's willingness to provide Hudson County with emergency temporary staffing assistance for additional county facilities, and he stated:

If the County were to make such a representation it would be evaluated by the Department and it would be given careful deliberation. And again, the kind of service we are prepared to offer Hudson has got to be the kind of assistance and service that we are prepared and able under the circumstances to offer other Counties.

Later, Hilton indicated that

The Department might come in and assist the County in evaluating supplementing its force with some kind of security personnel in certain areas.

Yes, we would be willing to do that for Hudson as we would be prepared to do that for any County.

Testimony was presented at a July 11, 1989 hearing regarding the feasibility of constructing additional trailer facilities on various sites in Hudson County. The corrections architects produced by both the County and the State disagreed regarding the number of days necessary to construct additional interim trailer facilities. The DOC expert stressed that the emergency housing could be made ready in 30 days, while the County expert opined that "approximately two to three months" was more realistic. However, both witnesses agreed that, with the requisite number of dollars available, additional construction could be completed in Hudson County in a limited period of time.

On July 12, 1989, Hudson County Chief Warden Larry A. Butler testified about staffing difficulties which he had encountered with respect to the Pavonia Avenue Jail, the Secaucus Annex, and prospectively, for the modular facility to be opened in Kearny. According to Warden Butler, based on staffing shortages which have been experienced in the past with respect to Hudson County Jail facilities, they would be unable from a security viewpoint to commence operations of additional facilities at the Secaucus Jail Annex or at Warehouse 77 within a month or two.

In an opinion rendered July 19, 1989, Judge Humphreys made the following findings:

The inmate population of the Pavonia Avenue jail has continued to increase since the court's decision of May 18, 1989. The Prosecutor projects that the population will increase by 200 inmates a month from now until October. The Hudson County Trial Court Administrator also projects substantial increases. All parties were given a full opportunity to challenge or question these projections. No one did so.

The administrative measures ordered by the court will not offset these projected increases.

[236 NJSuper Page 418]

Immediate action must therefore be taken not only to implement the court's May 18, 1989 decision providing for a phased reduction in the inmate population, but also to avert a potential catastrophe caused by the projected increases in the inmate population. (emphasis added)

The court thereupon on July 20, 1989 ordered the County, with the Commissioner's "full and ample assistance . . . not necessarily [to] be limited to technical and advisory assistance", to comply with DOC's plan that it build additional facilities in Secaucus and at the Kearny warehouse. However, the court emphasized that this action alone would not relieve the immediate emergency because this new housing could not be ready before 30 days at the very earliest. Accordingly, the court found that DOC's plan was "patently and fatally flawed in . . . its failure to provide for relocating some inmates." DOC's failure to respond to the immediate crisis was found to be "arbitrary, unreasonable and capricious and represents a clear abuse of [the Commissioner's] authority and discretion."

The judge stressed that the DOC's "failure to relocate prisoners . . . poses unacceptable risks to public safety and unnecessarily and wrongly prolongs the dangerous and unconstitutional overcrowded conditions at the jail." The Court found that in contrast to the immediate danger facing the Hudson County Jail, "relocation by the Commissioner of a relatively small number of inmates for a relatively short period of time will not overtax state facilities or other less crowded county facilities." As a result, the DOC was ordered to transfer 100 inmates from Pavonia to state or other county facilities within ten days, thus generating this appeal by the Commissioner and DOC*fn10 and the

[236 NJSuper Page 419]

County's appeal from the direction to build the additional facilities.

Following the denial of its application for a stay, the DOC proposed that, instead of transferring inmates from the Pavonia Avenue Jail to state or other county facilities, it would erect and staff, at the County's expense, a tent encampment ("Tent City") for 100 inmates on County land. In an order issued August 10, 1989, Judge Humphreys concluded that this proposal was "a reasonable and constitutional compliance with this Court's order of July 20, 1989, and said proposal is thereby approved." The County was ordered to reimburse the State for the actual cost of housing County inmates and ordered to pay the State $175,000 immediately to cover the costs of "Tent City". On August 16, 1989, "Tent City" began housing approximately 100 Hudson County inmates. As previously noted, on September 1, 1989, DOC was ordered to use its "best efforts" to keep the "Tent City" population at 100 at all times, and we have stayed that order to permit a reduction of that population by attrition.


We disagree with the trial judge to the extent he determined that N.J.S.A. 30:1B-1 et seq., enacted after MacNeil v. Klein, 141 N.J. Super. 394 (App.Div.1976), certif. denied, 72 N.J. 455 (1977), 30:4-85.1, 30:8-57 et seq., 30:8-16.1 et seq., and particularly N.J.S.A. 30:8-58, can be read to require the Commissioner to accept custody of county sentenced inmates in these circumstances. The statutes and Executive Order 106 permit the Commissioner to take certain action as specified in each. The Commissioner acknowledged before us that he has

[236 NJSuper Page 420]

discretion, under circumscribed circumstances, to accept or transfer custody of inmates sentenced to county facilities. See N.J.S.A. 30:4-85.1; N.J.S.A. 30:8-57, 30:8-58; see also N.J.S.A. 30:1B-1 et seq.; State v. Hughes, 230 N.J. Super. 223, 231-232 (App.Div.1989). He contends that this discretion is his alone and can be reviewed only by an appellate court and only on a limited scope of review.

We initially reject, in the circumstances of this case, the challenge by the DOC and Commissioner to the jurisdiction of the trial judge to order the Commissioner to accept "temporary transfer" of county inmates. Under our Constitution, N.J. Const. (1947), Article VI, ยง 5, para. 4, review in lieu of prerogative writs "shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court. . . ." The Chancery Division and Appellate Division are both parts of the Superior Court, and the issue deals with adherence to the governing rules which can be relaxed in extraordinary circumstances to avoid injustice. R. 1:1-2.

Under R. 2:2-3(a), the Appellate Division has been given jurisdiction to review actions and decisions of state administrative agencies. See, e.g., Pascucci v. Vagott, 71 N.J. 40, 51-52 (1976). However, here the trial judge was dealing with proceedings ancillary to the Chancery Division's determination that the Hudson County jail conditions are unconstitutional. The Commissioner and DOC were defendants from the beginning in this case and apparently never sought to challenge, at least by appeal, any jurisdictional issue with respect to the ancillary powers of the trial court prior to entry of the July 20, 1989 order. In fact, pursuant to orders of the trial court, the Commissioner and DOC presented plans designed to help alleviate the overcrowded jail conditions in Hudson County. In the words of the Commissioner and DOC, ". . . in a good faith exercise of one of the [Commissioner's] powers identified by the court, the Department submitted a plan to have the County build additional beds." The "jurisdictional" question now

[236 NJSuper Page 421]

arises only because the court, in reviewing the plan, concluded that the Commissioner must accept temporary transfer of county inmates while the construction plan is being implemented.

In any event, irrespective of whether the trial court had authority to review the Commissioner's action or inaction, it cannot properly be concluded on this record, as it must in order for a court to overrule the Commissioner's exercise of discretion, that his present determination not to accept transfer of county inmates is arbitrary, capricious or unreasonable or that it violates legislative policies expressed or implied. See Clowes v. Terminix Intern. Inc. 109 N.J. 575, 586-589 (1988); Worthington v. Fauver, 88 N.J. 183, 204-205 (1982); Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); Campbell v. Dept. of Civil Service, 39 N.J. 556, 562 (1963). This is particularly so since the Commissioner here was applying his special expertise in administering a statewide correctional policy. See e.g., In re Promulgation of Guardian Services Reg., 103 N.J. 619, 626 (1986); Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973).

It is clear that the county is responsible for housing inmates sentenced to county jails. This includes all non-indictable offenders, defendants sentenced for less than one year in custody and defendants placed on probation with up to 364 days in custody. See e.g., N.J.S.A. 2C:43-10; N.J.S.A. 30:8-16.1 et seq., N.J.S.A. 30:8-19. In addition, pretrial detainees are housed in the county jail. Further, the Governor's Executive Order, permitting the Commissioner of Corrections to house prisoners at county facilities due to prison overcrowding does not require or warrant a holding that the Commissioner must or should accept custody of inmates sentenced to county facilities for up to twelve months due to overcrowding in the local facilities. See Worthington v. Fauver, supra.*fn11

[236 NJSuper Page 422]

The Commissioner's decision, at least to date, cannot be considered unreasonable since he relies on a lack of space in overcrowded state facilities to accept the transfer of county inmates. He also has legitimate concerns that accepting those inmates would, in essence, invite other trial court judges in other counties to solve the overcrowded conditions in local jails by directing him to accept the transfer of prisoners to institutions which must remain secure and with respect to which the Legislature has provided for the commitment of indictable adult offenders sentenced to more than twelve months in custody. See e.g., N.J.S.A. 2C:43-10a, e; 30:1B-8. Cf. State v. Falcone, 211 N.J. Super. 685 (App.Div.1986) (reversing trial judge order for accelerated transfer to ADTC). We recognize that offenders sentenced to State custodial institutions are those convicted of more serious crimes, including crimes of violence. Thus, overcrowding among such prisoners at State correctional facilities pose significant risks about which the Commissioner in the exercise of his jurisdiction must be most concerned. As noted in N.J.S.A. 30:8-16.4 the Legislature has declared that "those offenders [with] demonstrated propensity to violence" should be separated from "offenders who can be dealt with more effectively in county correctional facilities." See N.J.S.A. 30:8-16.1 et seq.; Worthington v. Fauver, supra.

In testifying before the trial judge, Assistant Commissioner Hilton made clear that the DOC had to implement a policy which is applicable uniformly with respect to all counties and that, in any event, there was no bed space available within State correctional facilities in which to reallocate county prisoners. Further, in presenting the plan in accordance with the trial court's May 18, 1989 order, the Commissioner, in formulating his plan, considered such factors as the detention status of the inmates, statewide policy-making ramifications from transferring inmates to other counties, the fastest available means

[236 NJSuper Page 423]

for securing additional bedspace and potential site locations for additional facilities.

As stated in Worthington v. Fauver, supra, 88 N.J. at 204-205:

'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.' Bayshore Sewerage Co. v. Dept. Environ. Protection, 122 N.J. Super. 184, 199 (Ch.Div.1973).

Applying that standard here, we find no abuse of discretion.

At oral argument before us, it was represented, without contest by any party or amicus, that when the "modular facility" is opened during the week of October 23, 1989, the remaining inmates of "Tent City" will be transferred there and "Tent City" will close. The plaintiffs and Public Advocate join the County in contending therefore that the DOC and Commissioner's appeal should be deemed moot. As the parties do not contest that the opening of the modular facility will provide the bed space in place of, not in addition to, "Tent City," we see no need to address further any other issue raised on the appeal of the Commissioner and DOC.


We reject the County's argument that the Chancery Judge was not empowered to direct it to build additional facilities. The Commissioner, DOC and plaintiffs contend that the trial judge has the power to make such a direction to implement a remedy following the declaration of unconstitutional conditions at the Hudson County Jail, citing Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) and Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978), reh'g den. 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); see also Robinson v. Cahill, 69 N.J. 133, 153 (1975), cert. denied 423 U.S. 913, 96 S. Ct. 217, 46 L. Ed. 2d 141 (1975), 69 N.J. 449 (1976), 70 N.J. 155 (1976), injunction dissolved, 70 N.J. 464 (1976). Amicus curiae, however, argues that the trial judge merely

[236 NJSuper Page 424]

directed implementation of the plan prepared by the Commissioner pursuant to his statutory jurisdiction.*fn12 According to administrative regulation N.J.A.C. 10A:31-5.1, the Commissioner may "initiate such legal action as he may deem necessary to ensure enforcement" of rules and regulations the Legislature authorized him to promulgate to provide the appropriate "care, treatment, government and discipline" at county correctional facilities. See N.J.S.A. 30:1B-10. See also N.J.S.A. 30:8-57.

We do not decide the basis for the trial judge's order because, before us at oral argument, the County very responsibly acknowledged its obligation to construct adequate county correctional and penal facilities. It also acknowledges that the County had adequate notice about the need to construct more facilities at least since 1982 when Judge Castano's opinion was rendered*fn13 and that, in any event, the trial judge has legal [236 NJSuper Page 425] authority to order the construction of additional facilities in order to implement the original judgment after more than five years have passed.*fn14 The County's present argument is only that, factually, it should not have been compelled on July 20, 1989 to build even more facilities because the jail population crisis will be resolved by the opening of the new jail in 1991 and in the interim by the modular facility this month and by other action of the County. While the trial judge has continuing jurisdiction to review the totality of facts in light of recent developments, we conclude that the record justifies his conclusion that the construction of additional jail facilities in Hudson County was necessary. That portion of the order of July 20,

[236 NJSuper Page 426]

1989 challenged on the County's appeal is affirmed.*fn15


Our decision today prevents the trial judge from ordering the transfer to the custody of the Commissioner and DOC of inmates sentenced to a county, not state, facility. In no other respect do we limit his power to take appropriate action to reduce the population of the Hudson County Jail. We recognize that by the closing of "Tent City", which we expect will involve an orderly retransfer of prisoners, the population crisis at the Pavonia Avenue jail may become greater if the modular facility now projected to partially open during the week of October 23, 1989 is not completed by then, or if the facilities which the judge ordered the County to construct on July 20 (or any amendment of that plan) is not completed on an expedited basis. However, the Legislature has carefully detailed a statutory pattern whereby offenders sentenced to one year or more and those sentenced to less than one year in custody are generally to be housed in different facilities. Obvious reasons for the distinction turn on the need for different security and the like. If the overcrowded condition at the Pavonia Avenue Jail leads the Commissioner to take action to cease admissions and transfer inmates, pursuant to N.J.S.A. 30:8-57 and 30:8-58, or a state or federal court to cap admissions to the Hudson County Jail at a certain level, that will flow from the inaction with respect to adequate facilities in that county for much of

[236 NJSuper Page 427]

the last decade.*fn16 We fully recognize that the trial judge has endeavored to design and implement plans to minimize, consistent with public safety, the jail population at Pavonia Avenue. We commend his efforts to remedy the situation in Hudson County, but hold that he cannot remedy that situation by directing, at least in these circumstances, the Commissioner of the Department of Corrections to devote and assign state correctional facilities and resources to inmates sentenced to a county institution.

The order directing the Commissioner to accept "temporary transfer" of county sentenced inmates is reversed, and the order directing the County to build additional facilities, subject to further review based on recent developments and proposed amendments to existing plans, is affirmed.

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