On appeal from action of the Commissioner of the New Jersey Department of Corrections.
King, Shebell and Baime. The opinion of the court was delivered by Shebell, J.A.D.
The County of Monmouth (County) appeals to this court from the action of the Department of Corrections (DOC), State of New Jersey, and its Commissioner, William H. Fauver, in maintaining juveniles in county detention centers sentenced to State institutions and in refusing the County's demand for their immediate transfer to State facilities. On August 25, 1989, the County moved before this court for immediate emergent relief requesting an order that the DOC, through its Commissioner, move State-sentenced juvenile offenders from the County's Youth Detention Center in those instances where the court had determined that incarceration in a State facility was an appropriate disposition for the juvenile. The Commissioner and the DOC concede the jurisdiction of this court to review the policy in question. See R. 2:2-3(a)(2).
The County maintains the Youth Detention Center having a maximum population capacity of 39 residents, as established by the DOC under N.J.A.C. 10A:32-4.2. The record reveals that
during 1989 the population at that facility has gone as high as 64 residents. When plaintiff made its application to this court, there were approximately 59 youths at the facility, including 13 who had received State-imposed sentences of incarceration. These 13 juveniles were awaiting transfer to State-operated facilities. According to the superintendent of the County's Youth Detention Center, the average post-disposition stay was 40 days.
The DOC explains in its brief to this court that "[t]he problems experienced by the appellant as a result of overcrowding in its detention center are not unique. Other counties operate under identical, or worse, conditions." It is the position of the DOC that the resources available to it for placement of incarcerated juveniles are limited and that it is a policy determination made by the agency as to whether and for how long a sentenced youth will remain in the county detention center, even where it is beyond its capacity.
The DOC cites Worthington v. Fauver, 88 N.J. 183 (1982), for its proposition that "[t]he decision . . . pertaining to removal of state-sentenced juveniles from county detention centers may only be invalidated by the Court if the Division [Division of Juvenile Services of DOC] has acted arbitrarily and capriciously." In response to the County's argument that the State facilities are not over-capacity, and are more easily expandable than the county facilities, the DOC notes that the approach of a comparison of capacities was rejected by the Supreme Court in Worthington. 88 N.J. at 205.
Action by a State agency in contravention of State statutes and its own regulations is per se arbitrary and capricious because it violates express or implied legislative policy. See Morales v. Cty. of Hudson, 236 N.J. Super. 406, 421 (App.Div.1989). Juvenile detention facilities by statute must be strictly regulated by the DOC, and no juvenile may be placed in detention other than that specified by the DOC or Department of Human Services. See N.J.S.A. 2A:4A-37; N.J.A.C. 10A:32-4.1
et seq. "Detention" is defined as "the temporary care of juveniles in physically restricting facilities pending court disposition." N.J.S.A. 2A:4A-22c (emphasis supplied). N.J.S.A. 2A:4A-37c specifically provides: "No juvenile shall be placed in a detention facility which has reached its maximum population capacity, as designated by the Department of Corrections."
Until the amendment of N.J.S.A. 2A:4A-43, effective December 31, 1983, there was no statutory or regulatory provision under which a sentenced juvenile could be incarcerated in a county detention center after final disposition. Thus, a juvenile committed to incarceration pursuant to N.J.S.A. 2A:4A-44 was required to be remanded "to a suitable institution maintained by the Department of Corrections for the rehabilitation of delinquents. . . ." N.J.S.A. 2A:4A-44d(1). Pursuant to the 1983 amendment to N.J.S.A. 2A:4A-43c(1), a court is specifically empowered to incarcerate a juvenile in a county youth detention facility for a term not to exceed 60 consecutive days after the juvenile had been adjudged delinquent.
Pursuant to the amendment, the DOC has adopted specific rules and standards for incarceration of juveniles in county-operated juvenile detention facilities. N.J.A.C. 10A:33-1.1 et seq. N.J.S.A. 2A:4A-43c(2) and N.J.A.C. 10A:33-2.2(b) provide that "[n]o juvenile may be incarcerated in any county detention facility unless the county has entered into an agreement with the Department of Corrections concerning the use of a facility for sentenced juveniles." It is further provided, both in the aforesaid ...