On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication March 6, 1996.
Before Judges Long, Brochin and Loftus. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by BROCHIN, J.A.D.
J.W. is a patient at Ancora Psychiatric Hospital. He was involuntarily committed to that institution on January 27, 1995. At a placement review hearing conducted June 26, 1995, the Ancora staff sought authorization from the Law Division to release him for placement, subject to continuing supervision, in a community residence or a group home operated by CamCare, a Camden County community health center. Without reaching the question of whether J.W. would be potentially dangerous to himself or to others if he was conditionally released for residence in the home, the court entered an order which "denies the request to authorize patient's proposed placement in community residence, finding said placement prohibited by N.J.S.A. 30:11B-2 and N.J.S.A. 40:55D-66.2."
N.J.S.A. 30:11B-2, the first of the two statutes relied on by the Law Division, is part of "An Act Concerning Community Residences for Developmentally Disabled Persons and for Mentally Ill Persons," N.J.S.A. 30:11B-1 et seq. The Act defines "community residence for the mentally ill" as "any community residential facility which provides food, shelter and personal guidance, under such supervision as required, to not more than 15 mentally ill persons who require assistance temporarily or permanently, in order to live independently in the community." N.J.S.A. 30:11B-2. The maintenance of such a facility is subject to approval by the Division of Mental Health and Hospitals in the Department of Human Services. Ibid. The purpose of community residences for the mentally ill is described as follows:
The Legislature . . . finds that there are many persons who have been hospitalized due to mental illness and are recovered to the extent that they no longer require such hospitalization, but would benefit from the specialized independent-living training available to residents of small community residences for the mentally ill. These community residences for the mentally ill may also be utilized by persons who have not been hospitalized for mental illness but who are participating in community mental health counseling or training programs provided by a State-affiliated community mental health agency. These persons have a right to a fuller, more normal life that care in community residences brings, and it is, therefore, the intention of the Legislature through this act, to encourage the development of community residences for the mentally ill and to provide for the licensing and regulation of the residences by the Department of Human Services.
The provision of N.J.S.A. 30:11B-2 on which the Law Division based its ruling states:
These residences shall not house persons who have been assigned to a State psychiatric hospital after having been found not guilty by reason of insanity or unfit to be tried on a criminal charge.
N.J.S.A. 40:55D-66.1, the second statute on which the Law Division relied for its ruling in this matter, is an amendment to the New Jersey Municipal Land Use Law. It provides that community residences for the developmentally disabled . . . shall be a permitted use in all residential districts of a municipality," subject only to limited exceptions and to a requirement for a conditional use permit reasonably related to the health, safety and welfare of residents of the district for a facility housing more than six residents in addition to staff. The statute defines "community residence for the developmentally disabled" to include facilities housing "mentally ill persons." However, the statute excludes from the definition of "mental ill person," "a person who has been committed after having been found not guilty of a criminal offense by reason of insanity or having been found unfit to be tried on a criminal charge." N.J.S.A. 40:55D-66.2.
CamCare, where the Ancora staff wanted to place J.W., is a community residence within the meaning of these statutes. The Law Division Judge to whom Ancora submitted its application for J.W.'s placement interpreted the quoted provisions to mean that once an accused has been found incompetent to stand trial on a criminal charge or found not guilty of such a charge by reason of insanity, he or she will be forever ineligible to live in a community residence which is subject to N.J.S.A. 30:11B-2 or N.J.S.A. 40:55D-66.2. Consistently with that interpretation, the court ruled that J.W. is ineligible for residence in CamCare because he was charged with a sexual offense in 1981, found not guilty by reason of insanity and, because of that finding, committed to Ancora as criminally insane. *fn1 See State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975).
J.W. has appealed. He contends that the statutory provisions which, without qualification, deny eligibility for residence in a group home to any person who has ever been adJudged incompetent to stand trial or not guilty by reason of insanity are invalid. He argues that they violate the Fair Housing Amendments Act of 1988, 42 U.S.C.A. §§ 3601-3631, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.
Because the constitutionality of a State statute has been challenged, the Attorney General has intervened on appeal on behalf of the New Jersey Division of Mental Health Services. The Attorney General implicitly concedes that the construction which the Law Division has given to N.J.S.A. 30:11B-2 and N.J.S.A. 40:55D-66.2 would invalidate the statutes. To avoid holding them invalid, she urges us to construe their provisions to mean that a person adJudged unfit to be tried on a criminal charge or not guilty by reason of insanity is ineligible to reside in a group home only so long as the person is a "Krol patient," that is, a person who cannot be released without ...