On appeal from the Superior Court of New Jersey, Law Division, Bergen County and Mercer County.
Approved for Publication April 27, 1995
Before Judges Shebell, Wallace and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D. Shebell, P.j.a.d. Dissenting
The opinion of the court was delivered by: Kleiner
The two appeals we are called upon to review pose significant issues of first impression under the civil commitment statute, N.J.S.A. 30:4-27.1 to -27.23, and particularly the authority of the Attorney General to initiate and participate in involuntary civil commitment proceedings. Subsumed in this analysis is a secondary question, whether D.C.'s right to due process was violated by the action of the Attorney General.
For reasons more fully amplified in Part II, on January 7, 1993, the office of the Attorney General filed a verified complaint seeking the issuance of an order to show cause to compel D.C. to submit to two psychiatric examinations by psychiatrists selected by the Attorney General. The court executed the order returnable January 14, 1993. D.C. filed an answer contesting the State's factual allegations and challenging the procedural basis for the State's application. After a hearing, the trial court ordered that D.C. submit to the requested examinations, which were thereafter conducted on January 17 and 18, 1993.
On January 21, 1993, the court conducted another hearing, reviewed the psychiatric reports, both dated January 18, 1993, and concluded that there was probable cause to believe that D.C. was mentally ill and a danger to others. The court, pursuant to R. 4:74-7(c) and N.J.S.A. 30:4-27.10e, entered an order temporarily committing D.C. to Bergen Pines County Hospital pending a plenary commitment hearing, which it scheduled for February 8, 1993.
After four days of testimony (February 8, 11, 16 and 17, 1993), the court, on February 19, 1993, concluded that there was clear and convincing evidence that D.C. was in need of involuntary commitment *fn2 as D.C. suffered from mental illness, N.J.S.A. 30:4-27.2r, *fn3 and that there existed a substantial likelihood that he would inflict serious injury in the reasonably foreseeable future. D.C. was committed to Bergen Pines County Hospital but shortly thereafter was transferred to the Forensic Psychiatric Hospital in Trenton, where he has remained as a civil committee.
A civil commitment review hearing was conducted before another Judge commencing June 3, 1993 and continuing on four additional dates, including June 23, 1993. On July 1, 1993, the review Judge continued D.C.'s commitment.
D.C. initially filed an appeal from the order of commitment entered February 22, 1993, and thereafter filed an amended notice of appeal to encompass an appeal from the order executed July 23, 1983, which directed that D.C. remain involuntarily committed.
While the appeal was pending, D.C.'s commitment was again reviewed on January 28, 1994, and his commitment was continued by order dated March 14, 1994. D.C. filed a separate appeal. *fn4 Both appeals were scheduled for Disposition on the same calendar. We have elected to decide both appeals in one opinion.
D.C., now age forty, was born February 5, 1955. He was first arrested at age seventeen on theft charges and was thereafter adjudicated a juvenile delinquent. He was placed in the Oceanfields Residential Treatment Center but ran away after two months.
Shortly thereafter, D.C., then an adult, was arrested and charged with breaking and entering and theft. Upon his conviction, he was sentenced as a youthful offender to the Youth Correctional Center at Yardville. He was paroled in June 1973, having served ten months.
On October 21, 1973, D.C. was charged with three counts of abduction, in violation of N.J.S.A. 2A:86-2, and three counts of impairing the morals of a child, in violation of N.J.S.A. 2A:16-3. On May 24, 1974, he was convicted and sentenced to the Youth Correctional Center for an indeterminate term not to exceed eight years. *fn5 He was paroled in 1976.
On December 8, 1978, D.C. was convicted for possession of a switchblade knife. Although he was again sentenced to The Youth Correctional Center at Yardville, his sentence was "suspended." *fn6
On July 12, 1980, D.C. kidnapped and sexually molested a twenty-three year-old woman. Immediately after the criminal episode, he surrendered to the police. In September 1980, D.C. was convicted of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(6), and kidnapping, contrary to N.J.S.A. 2C:13-1b(1). *fn7 He was sentenced to two concurrent terms of imprisonment for a period of twenty years with a ten year period of parole ineligibility to be served at the Adult Diagnostic Treatment Center (Averel). D.C. was unconditionally released on November 17, 1992, having served his maximum sentence. *fn8
During 1992 at Avenel, D.C. was provided therapy by Kay E. Jackson, Ph.D., a staff clinical psychologist. In an affidavit attached to the verified complaint, Dr. Jackson stated:
10. During these meetings, [D.C.] was honest with his parents about his continuing sexual arousal to sadistic fantasies involving rape, torture and mutilation of adult women. His most prevalent fantasy remains that of abducting a victim, taking her to a wooded area, tying her to trees, sexually assaulting her, torturing, and sometimes, ultimately killing her. In short, he continues to be strongly aroused to the fantasy of committing sexual offenses.
12. At the beginning of November 1992, I contacted Dr. Beril to verify his opinion of [D.C.] vis-a-vis confinement. Dr. Beril offered the opinion that though the likelihood that [D.C.] would recommit was great, he was not at this point in time eligible for involuntary confinement because he was not "openly psychotic. " This opinion was shared by the other two psychiatrists, Drs. Morgenstern and Fernandez.
Jackson contacted the West Milford Police on November 16, 1992, and the Bergen County Prosecutor's Office on November 17, 1992. As a result of those phone calls, the prosecutor's office, in conjunction with the Wyckoff police department, began round-the-clock surveillance of D.C., from his release from Avenel on November 17, 1992, to his temporary commitment on January 21, 1993, without interruption. D.C. was aware of this surveillance. He was living at the home of his parents. On December 8, 1992, he began weekly outpatient counseling at Avenel's extension program in Paterson.
The verified complaint refers to several incidents of unusual behavior.
16. On November 20, 1992, [D.C.] was seen leaving his parents' home out of the back door and entering a shed located at the rear of the property. While wearing surgical gloves, [D.C.] removed a duffel bag containing the same type of bondage equipment he used on the victim in 1980. These actions were captured on a video tape by the surveillance team.
19. On November 30, 1992, [D.C.] told an investigator from the Bergen County Prosecutor's Office that he would like to see the victim of his 1980 crime to "see how she was doing." He also told the investigator that he often thought about his ex-girlfriend and would like to see her again. In addition, he told a member of the surveillance team that he could not guarantee that he would not commit acts similar to the crime for which [sic] was previously incarcerated.
20. On December 1, 1992, [D.C.] told a member of the surveillance team that he still loves his ex-girlfriend and was trying to locate her. He admits to obsessing about sadistic fantasies and his desire to repeat his acts.
21. Since his release, [D.C.] had been frequenting a local fast food establishment to look for young girls. At that establishment, [D.C.] was involved with two separate incidents with management. On one occasion, he blocked the door to the ladies room and on another he spoke to a couple that he did not know, telling them they had a beautiful young daughter of whom ...