Before Judges King, Wallace and Newman.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Stayed by the Order of June 30, 1999 until end of Legislative session.
Resubmitted: January 11, 2000 at the end of 208th
Legislative session - Decided:
On appeal from the Juvenile Justice Commission.
This case involves the validity of a regulation promulgated by the Juvenile Justice Commission providing for a forty-five-day transfer period for State-sentenced juveniles housed in county correctional facilities and detention centers. The Juvenile Justice Commission (JJC) was created on December 15, 1995 by the Legislature as a result of recommendations of the Governor's Advisory Council on Juvenile Justice. 30 N.J.R. 871 (March 2, 1998). Prior to establishing the JJC, three state agencies, the Department of Corrections, the Department of Law and Public Safety, and the Department of Human Services, were responsible for operating the juvenile justice system. N.J.S.A. 52:17B-169d. The JJC was created, pursuant to N.J.S.A. 52:17B-170a, "in, but not of the Department of Law and Public Safety" because the legislature found the most efficient and effective use of resources required fixing responsibility for a comprehensive juvenile justice program in a single State agency. N.J.S.A. 52:17B-169j.
In creating the JJC, the Legislature established a single State agency "responsible for developing a Statewide plan for effective provision of juvenile justice services and sanctions at the State, county and local level. . . ." N.J.S.A. 52:17B-169k. Pursuant to N.J.S.A. 52:17B-176 titled "Juveniles, facilities and programs to be transferred to Juvenile Justice Commission," the Legislature gave the JJC all the powers and responsibilities previously held by the three agencies which had been responsible for the juvenile justice system.
The Legislature also charged the JJC to establish standards (1) for the "care, treatment, government, and discipline of juveniles" adjudicated delinquent, pursuant to N.J.S.A. 52:17B-170e(6); (2) to assume the custody and care of juveniles committed to it by law pursuant to N.J.S.A. 52:17B-170e(7); (3) to formulate and adopt standards and rules for the efficient running of the Commission and its facilities pursuant to N.J.S.A. 52:17B-170e(14); and (4) to promulgate rules and regulations necessary to effectuate the purposes of the Commission, N.J.S.A. 52:17B-170e(22). See County of Hudson v. Department of Corrections, 152 N.J. 60, 67 (1997). In the JJC's enabling legislation, the Legislature provided for the continuation of any regulations promulgated by the agencies other than Law and Public Safety previously responsible for the juvenile justice system.
N.J.S.A. 52:17B-177b(3) provides as follows:
All rules and regulations promulgated by the Commissioner of Corrections or the Commissioner of Human Services pertaining to functions, powers, duties and authority transferred to the commission pursuant to [52:17B-176] shall be considered rules or regulations of the commission and, as such, shall remain in full force and effect until expiration or modification by the commission in accordance with law.
At that time, pursuant to N.J.A.C. 10:19-4.2(d), the State was required to transfer all State-sentenced juveniles to the intake unit of the New Jersey Training School within three-days after the Department of Corrections was notified about a sentenced juvenile offender. In many counties the State did not comply with this three-day transfer regulation.
On May 2, 1997 we decided County of Hudson v. Department of Corrections, 300 N.J. Super. 389, 391 (App. Div. 1997), in which the Counties of Hudson and Camden had filed suit against the State of New Jersey, Juvenile Justice Commission (JJC), for its failure to remove State-sentenced juvenile offenders from County Youth Detention Centers within three days after sentencing pursuant to N.J.A.C. 10:19-4.2. We held that N.J.A.C. 10:19-4.2 was a valid regulation; we found there was no legitimate reason for the State to continue its noncompliance with the regulation, and we ordered the State to remove State-sentenced juveniles within the three-day time period. Id. at 394. On December 10, 1997, in County of Hudson v. Department of Corrections, 152 N.J. 60, 65 (1997), the Supreme Court affirmed our decision and upheld the validity and enforceability of the transfer regulation, N.J.A.C. 10:19-4.2. *fn1
On February 3, 1998 the Executive Board of the JJC, including Peter Verniero, then the Attorney General and Chair of the JJC, adopted, on an emergency basis pursuant to N.J.S.A. 52:14B-4c and N.J.S.A. 52:17B-170, a recodification and amendment of N.J.A.C. 10:19-4.2(d) and (e) as N.J.A.C. 13:90-4.2, in effect, a new regulation. The recodification with amendment and the new regulation provided forty-five days to transfer State-sentenced juveniles from county detention facilities to a State facility.
On April 2, 1998 the JJC Executive Board adopted the proposed recodification with amendment of N.J.A.C. 10:19-4.2(d) and (e) as N.J.A.C. 13:90-4.2 which provided for a forty-five-day transfer period. On April 3, 1998 the recodification with amendment and the new rule were filed with the Office of Administrative Law and became effective.
On April 8, 1998 Hudson County filed a notice of appeal challenging the recodification with amendment and the new regulation. R. 2:2-3(a)(2). On April 15, 1998 Camden County filed a similar notice of appeal. We consolidated the appeals.
Hudson and Camden Counties (the Counties) raise three claims on this appeal: (1) N.J.A.C. 13:90-4.2 is an invalid regulation which illegally shifts the burden of housing State-sentenced juveniles to the counties; (2) N.J.A.C. 13:90-4.2 exceeds the statutory authority set forth in N.J.S.A. 52:17B-170 and conflicts with N.J.S.A. 2A:44.1 and N.J.S.A. 2A:4A-37, and (3) N.J.A.C. 13:90-4.2 is unconstitutional and violates due process rights of sentenced juvenile offenders. We find the new regulation allowing up to forty-five days for transfer to a State facility valid and within the rule-making authority of the JJC.
This is the background of this dispute between the State and the appellant counties. After we decided County of Hudson v. Department of Corrections on May 2, 1997, the JJC proposed a new version of N.J.A.C. 13:90-4.2, eliminating the three-day transfer rule and providing a sixty-day transfer period for 1997, a forty-five-day transfer period for 1998 and a thirty-day transfer period for 1999 and after. 29 N.J.R. 1667-1668 (May 5, 1997). On June 2, 1997 Mark J. Lonetto, the Camden County Administrator and Treasurer, wrote to Paul Donnelly, Executive Director of the JJC. In this correspondence, Lonetto stated the attempt on the part of the State to shift the burden of caring for State-sentenced juveniles on Camden County was a "blatant" violation of the existing statutory mandates. Lonetto's correspondence included an affidavit of Mary Previte, Administrator of the Camden County Youth Center. In the affidavit Previte stated that the overcrowding of the Youth Center had resulted in assaults and injury to vulnerable juveniles within the Center. One example occurred where more powerful juveniles sodomized a younger, vulnerable juvenile. Previte stated that overcrowding combined with the mixture of State-sentenced and non-sentenced juveniles was "dangerous." Previte also stated the Youth Center in Camden County was beyond its capacity: designed to hold about thirty-seven juveniles, about sixty-six were in the facility as of November 21, 1996. Previte also stated the prolonged overcrowding of the County Youth Center associated with State-sentenced juveniles created institutional tension resulting in fighting among the juveniles and a sense of fear in the staff.
On December 10, 1997 in County of Hudson v. Department of Corrections the Supreme Court affirmed our judgment and upheld the validity and enforceability of the extant transfer regulation, N.J.A.C. 10:19-4.2. Except for the Counties of Hudson and Camden, the Court stayed its judgment for sixty days from the date of the decision. This enabled the State to take measures to comply with the three-day time-period transfer regulation, unless the regulation was modified or superseded by a valid amendment. The Court stated that, although the State was required to comply with its own regulation, nothing foreclosed the State from amending, changing or repealing its regulations, especially in response to changing conditions, 152 N.J. at 72, pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, which provides the manner in which an agency can amend an existing regulation. Ibid. The Court also suggested that the State could adopt an emergency regulation upon the finding of "imminent peril to the public health, safety, or welfare" pursuant to N.J.S.A. 52:14B-4c. Id. at 73. The Court said that an emergency regulation would be effective for only a limited time period but that it would give the JJC more time to address the problem. Ibid. Another alternative proposed by the Court was for the State to enter into agreements with the counties to prevent overcrowding, pursuant to N.J.S.A. 2A:4A-44.1. Ibid.
On February 3, 1998 the Executive Board, including Peter Verniero, as Attorney General and Chair, adopted, on an emergency basis pursuant to N.J.S.A. 52:14B-4c and N.J.S.A. 52:17B-170, a recodification and amendment of N.J.A.C. 10:19-4.2(d) and (e), N.J.A.C. 13:90-4.2. 30 N.J.R. 871 (March 2, 1998).
Emergency regulation N.J.A.C. 13:90-4.2, in pertinent part, provided:
(a) Consistent with the purpose set forth by the Legislature in the juvenile justice reform legislation to reduce overcrowding at all State and county juvenile facilities, a juvenile who receives a State sentence of incarceration shall be transported to the juvenile intake unit at the New Jersey Training School for Boys no later than 45 days after the Juvenile Justice Commission receives notification, in the form of a signed commitment order and a presentence or predisposition report, from the county where the juvenile has been sentenced. Subject to the availability of appropriations, the Commission also shall provide a Commission-determined per diem rate to the counties for State-committed juveniles held in the county detention centers from the 16th day after receipt by the Commission of the signed commitment order and presentence or predisposition report for each State-sentenced juvenile. The per diem rate shall be established by the Commission from time to time. The 45 days shall be exclusive of the date on which the Commission receives the appropriate and necessary documentation. [30 N.J.R. 871 (March 2, 1998)(emphasis added).]
The emergency status of the recodification, amendment and new rule was set forth in a "Certification of Imminent Peril" by Governor Whitman and a "Statement of Imminent Peril" by Peter Verniero, as Attorney General and Chair, Juvenile Justice Commission. The Attorney General's "Statement of Imminent Peril" said that unless the JJC implemented the emergency regulation, compliance with the original three-day rule would have been necessary and would create "operational instability, and have a negative effect upon the safety and security of staff, the juveniles, and the public, thereby generating the imminent peril sought to be avoided by the emergency adoption of this rule." The Attorney General's statement claimed there were, at that time, ninety-two State-sentenced juveniles in county detention centers. The Attorney General stated the JJC has resources available for medical and psychological evaluations for twenty to twenty-five juvenile admissions per week but an increase to ninety-two admissions, coupled with adherence to the application of a three-day rule, would strain the classification process and harm the juveniles at the State level. The Attorney General further stated the physical plant of the Training School could accommodate a capacity of 404 but the daily population was about 490. He concluded the risk of institutional instability escalates as the population of the institution increases, creating a greater potential for incidents among juveniles and between juveniles and staff, again at the State level. The Attorney General concluded by claiming the forty-five-day holding period could provide appropriate placement for each individual offender while addressing the issue of State overcrowding.
On February 23, 1998 Camden County Counsel Robert Millenky wrote to JJC Director Donnelly stating the emergency rule proposed by the JJC violated N.J.S.A. 2A:4A-37c, *fn2 providing no juvenile may be placed in a detention facility which has reached its maximum capacity; N.J.S.A. 2A:4A-43c(2), *fn3 requiring an agreement between the JJC and the County for such placement; and N.J.S.A. 2A:4A-44.1, *fn4 providing the JJC may enter into an agreement with the county to place State-sentenced juvenile offenders in county facilities. Millenky's letter also asserted that the forty-five-day regulation was an ill-advised State attempt to shift the statutory housing responsibility of juveniles from the State to the counties. On February 27, 1998 Director Donnelly sent a response to Millenky's letter stating Millenky's assertions that the State was shifting the burden of housing State-sentenced juveniles on the county were without merit. Donnelly stated that there was no violation of N.J.S.A. 2A:4A-37c as this statute applied to the counties. Donnelly also stated the emergency rule did not provide for the placement of State-sentenced juveniles in the county facilities but rather described a "transfer" period. Donnelly stated that N.J.S.A. 2A:4A-43c(2) was not violated by the regulation because this "agreement" provision did not conflict with the regulation which addressed the transfer of State-sentenced juveniles from county detention facilities.
On March 11, 1998 Director Donnelly also wrote to Mary Previte stating that based on her own correspondence (a letter dated February 10, 1998 from Previte to Donnelly), State-sentenced juveniles comprised only a small portion of the total population at the Camden County Youth Center. Donnelly further claimed that since the effective date of the emergency regulation, the State had transferred twenty juveniles from the Camden County Youth Center within thirteen days or less. Donnelly also asserted Camden County has had a long-standing overcrowding condition which has been exacerbated by the county's failure to take advantage of alternative programs such as In-Home Detention Program.
On March 20, 1998 Director Donnelly received additional correspondence from Abraham Antun, Acting Administrator of Hudson County. In the letter, Antun stated the regulation promulgated by the JJC would result in an added financial burden on Hudson County and make it difficult for the county to educate detained but non-adjudicated juveniles. Antun also stated the regulation would diminish the county's ability to provide counseling, recreational, religious, and general rehabilitative services for juveniles. Antun said the forty-five-day transfer regulation was a circumvention of the legislative prohibition of shifting the burden of housing State-sentenced juveniles from State to county facilities.
On March 24, 1998 Mary Previte contacted Director Donnelly by letter in response to Donnelly's March 11, 1998 letter. Previte stated Donnelly's calculation of State-sentenced juveniles in Camden County's Youth Center was an average over several years and did not accurately reflect present conditions. Previte also stated Camden County was already taking significant steps to reduce its population in the Youth Center and that inadequate State services in the areas of the Division of Youth and Family Services (DYFS) and probation services were a large part of the Youth Center overcrowding problem. On March 26, 1998 the Board of Chosen Freeholders of Hudson County passed a resolution in opposition to the JJC's emergency adoption of and proposed amendments to N.J.A.C. 10:19-4.2(d) and (e) and the proposed enactment of N.J.A.C. 13:90-4.2.
On April 2, 1998 the Executive Board of the JJC with Attorney General Verniero as Chair, adopted the proposed recodification with amendment of N.J.A.C. 10:19-4.2(d) and (e) as N.J.A.C. 13:90-4.2. 30 N.J.R. 1619 (May 4, 1998). On April 3, 1998 the recodification with amendment and new rule were filed with the Office of Administrative Law and became effective on the date of the filing. Ibid.
N.J.A.C. 13:90-4.2 as adopted on April 3, 1998 provided,
(a) Consistent with the purpose set forth by the Legislature in the juvenile justice reform legislation to reduce overcrowding at all State and county juvenile facilities, a juvenile who receives a State sentence of incarceration shall be transported to the juvenile intake unit at the New Jersey Training School for Boys no later than 45 days after the Juvenile Justice Commission receives notification, in the form of a signed commitment order and a presentence or predisposition report, from the county where the juvenile has been sentenced. Subject to the availability of appropriations, the Commission also shall provide a Commission-determined per diem rate to the counties for State-committed juveniles held in the county detention centers from the 16th day after receipt by the Commission of the signed commitment order and presentence or predisposition report for each State-sentenced juvenile. The per diem rate shall be established by the Commission from time to time. The 45 days shall be exclusive of the date on which the Commission receives the appropriate and necessary documentation. [Emphasis added.]
On April 2, 1998 Senate Concurrent Resolution No. 46 (SCR 46) was introduced pursuant to N.J. Const. art. V, § 4, ¶ 6, *fn5 the so-called "legislative veto" provision. See In re the Adoption of Regulations Governing the State Health Plan, 135 N.J. 24, 28 (1994). On April 20, 1998 Assembly Concurrent Resolution No. 91 (ACR 91) was also introduced pursuant to N.J. Const. art. V, § 4, ¶ 6. Both resolutions, SCR 46 and ACR 91, declared that N.J.A.C. 13:90-4.2 had exacerbated overcrowding problems of juvenile detention centers and was inconsistent with the legislative intent of N.J.S.A. 2A:4A-20 to -91. The resolutions also declared that the per diem reimbursement rate of $58.50 which a county would receive from the State after the fifteenth day of a juvenile's detention in the county facility was insufficient. SCR 46 was referred to the Senate Legislative Oversight Committee on April 2, 1998 and was reported out of Committee with non-substantive amendments on November 23, 1998.
We heard oral argument in this matter on June 16, 1999. Aware of the pending legislative activity, we nonetheless entertained oral argument but then decided to delay any decision for a reasonable time in deference to the Legislature. Shortly after oral argument, on June 24, 1999, the Senate unanimously adopted SCR 46 by a 40-0 vote.
Again, in deference to the legislative process, we filed this order on June 30, 1999:
THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS ON THIS 30TH DAY OF JUNE, 1999 HEREBY ORDERED AS FOLLOWS:
In view of the passage of Senate Concurrent Resolution No. 46 on June 24, 1999, we defer rendering a decision in this matter, argued before us on June 16, 1999. We will await further action on the validity of N.J.A.C. 10:19-4.2 by the Legislature and the Executive, noting that Concurrent Resolution No. 46 found that the regulation "is not consistent with legislative intent" and transmitted a copy of the concurrent resolution to the Governor and the Director of the Juvenile Justice Commission for action within 30 days pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.
If any party desires reargument, further briefing, or other relief upon the conclusion of the constitutional process described in Article V, Section IV, paragraph 6, within 30 days thereafter that party may make an appropriate application by motion to the Presiding Judge of Part B.
We then awaited action by the General Assembly on ACR 91; it never emerged from the Assembly Oversight Committee and ACR 91 died when the legislative session ended on January 10, 2000. The attempted "legislative veto" process did not succeed. We therefore must decide the validity of recodified N.J.A.C. 13:90-4.2 providing for a forty-five-day transfer period from county detention facilities to a State facility for State-sentenced juvenile offenders.
In a very recent development, on January 21, 2000 the Attorney General, John J. Farmer, Jr. advised us in writing as follows about N.J.A.C. 13:90-4.2, which is "due to expire on May 12, 2000:
Please be advised that at this meeting on January 19, 2000, the Executive Board of the Juvenile Justice Commission authorized a proposal to amend the existing 45-day transfer regulation set forth at N.J.A.C. 13:90-4.2.
The proposal is to reduce the maximum number of days within which transfer must be made from 45 days to 30 days and to recodify the rule to N.J.A.C. 13:92-4.2. There are no other proposed changes to N.J.A.C. 13:90-4.2. It is anticipated that the proposal will be published in the New Jersey Register on February 22, 2000. A copy of the Notice of Proposal is attached for your review.
We attach the "agency proposal" as Appendix A. The proposal explains the Executive branch's continuing efforts in respect of the "transfer" problem.
The Counties contend that N.J.A.C. 13:90-4.2 is without legislative authority and improperly shifts the burden of housing State-sentenced juveniles from the State to the counties. The Counties argue that while this court in County of Hudson v. Department of Corrections found that the State may house juveniles in County facilities for a "transfer period," the current regulation is in essence an unauthorized "housing" period. The Counties assert that pursuant to N.J.S.A. 52:17B-170e(7) the State is responsible for the custody and care of juveniles committed by the family court. Despite this responsibility, the Counties argue the State is wrongly imposing additional overcrowding at county facilities. The Counties also argue it is possible for a juvenile to spend the entire "sentence" in the county facility depending upon the severity of their crime (e.g. crime of automobile theft with only a thirty-day period of imprisonment). As a result, the Counties assert that the forty-five-day "transfer period," really a housing period, will exacerbate the overcrowding in county facilities. The Counties also argue that the regulation imposing a forty-five-day transfer period is invalid on its face despite the regulation's provision for per diem payments for housing a State-sentenced juvenile beyond fifteen days. The Counties assert that the cost per diem of housing a juvenile is $224 and the State's suggested amount $58.50 per day is woefully insufficient. Lastly, the Counties contend that the regulation is nonetheless invalid despite any undocumented State claims that juveniles now are transferred within an average fifteen-day time period.
The State counters that N.J.A.C. 13:90-4.2 providing a forty-five-day holding period is a valid regulation which controls overcrowding in State juvenile facilities while maintaining the State's responsibility to house State-sentenced juveniles. The State also asserts that the regulation does not unreasonably shift the burden of housing State-sentenced juveniles to the Counties. Under N.J.S.A. 2A:4A-43c, the State argues the Juvenile Detention Commitment Program is a sensible alternative to sentencing a juvenile up to 60 days to a State facility provided that the county participates in the program. In the event the county does not, the juvenile must then be sentenced to the State correctional facility. The State maintains that it does not unreasonably shift the burden of housing State-sentenced juveniles beyond the controlling statutory authority. The State also argues that the regulation is valid on its face despite the contention the State's per diem payment for the housing of State-sentenced juveniles is insufficient.
Administrative regulations are accorded a presumption of validity. New Jersey State League of Municipalities v. Department of Community Affairs, 158 N.J. 211, 222 (1999) (citing In re Township of Warren, 132 N.J. 1, 26 (1993); Medical Soc'y v. New Jersey Dep't. of Law & Public Safety, 120 N.J. 18, 25 (1990)). The party challenging their validity bears the burden of proving that the regulations are arbitrary, capricious, or unreasonable. Ibid. (citing In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. 531, 543-44 (1990); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978)). Judicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are "particularly well equipped to read and understand technical issues that . . . rulemaking would invite." Ibid. (quoting Bergen Pines County Hosp. v. New Jersey Dep't of Human Servs., 96 N.J. 456, 474 (1984)). Therefore, the scope of review of administrative regulations is "highly circumscribed," and a reviewing court is not to substitute its judgment for that of the agency. Ibid.
That deference is not without its limit, however, because a regulation "must be within the fair contemplation of the delegation of the enabling statute." Ibid. (citing New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. at 561-62)(quoting Southern Jersey Airways, Inc. v. National Bank of Secaucus, 108 N.J. Super. 369, 383 (App. Div. 1970))). The Supreme Court has recognized that "the grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities and . . . courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent." Ibid. (citing New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. at 62). Also, "[T]he absence of an express statutory authorization in the enabling legislation will not preclude administrative agency action where, by reasonable implication, that action can be said to promote or advance the policies and findings that served as the driving force for the enactment of the legislation." Id. at 223 (quoting A.A. Mastrangelo, Inc. v. Commissioner, Dep't of Envtl. Protection, 90 N.J. 666, 683-84 (1982)). Indeed, one might argue that a regulation which has survived an attack under the "legislative veto" mechanism of our State Constitution's, N.J. Const. art. V, § 4, ¶ 6, should receive paramount deference.
In County of Monmouth v. Department of Corrections, 236 N.J. Super. 523, 524 (App. Div. 1989), the County of Monmouth appealed the action of the Department of Corrections (DOC) in maintaining juveniles in county detention centers sentenced to State institutions and refusing the County's demand for immediate transfer of the State-sentenced juveniles to State facilities. In holding the DOC failed to carry out its statutory obligation to promptly place State-sentenced juveniles in State facilities, we found that no statutory or regulatory authority existed for the DOC to "house" youths sentenced to State facilities in county detention centers. Id. at 526. We also pointed out that State-sentenced juveniles present a greater security risk to the county facility, its residents and staff than those whom the court determines may be housed in a county facility for a period not exceeding sixty days pursuant to N.J.S.A. 2A:4A-43c (The Juvenile Detention Commitment Program). Id. at 527. We there also stated, "Statutory and regulatory prohibitions against overcrowding have been continuously violated. The State has effectively shifted its burden to the counties without legislative or executive authority." Id. at 528 (Emphasis added).
As we earlier observed at 9, in County of Hudson v. Department of Corrections, the Supreme Court affirmed the decision of this court upholding the validity and enforceability of N.J.A.C. 10:19-4.2(d) and (e) which provided for the transfer of ...