On appeal from Final Agency Action of the New Jersey State Parole Board.
Before Judges Skillman, Coburn and Wells.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued/Submitted February 10, 2004
The result of this litigation depends on the meaning of one of the key provisions of the Violent Predator Incapacitation Act of 1994, commonly known as Megan's Law. L. 1994, c. 130. That provision, codified in N.J.S.A. 2C:43-6.4,*fn1 is designed to protect the public from recidivism by defendants convicted of serious sexual offenses. To achieve that end, it mandates, in addition to the ordinary sentence provided by the Criminal Code for the covered offenses, a special sentence of community supervision for life ("CSL").
The interpretive problem arises because, although CSL defendants are supervised in New Jersey"as if on parole[,]" violation of a CSL condition is only punishable as a crime. Ibid. In other words, the New Jersey State Parole Board (the "Parole Board") has no administrative enforcement powers; it cannot return a CSL defendant to prison through the revocation hearing procedures applicable to ordinary parolees. As a result, other states may but are not required to accept supervision of CSL defendants under the Uniform Act for Out-of-State Parolee Supervision, N.J.S.A. 2A:168-14 to -17 ("UAOPS"), an interstate compact to which all states have subscribed, and which we adopted over sixty years ago. L. 1936, c. 41. The precise issue is whether the Parole Board may permit a CSL defendant to reside in a state, such as New York, that refuses to accept supervision solely because of the Parole Board's lack of administrative enforcement powers.
These appeals concern CSL defendants who applied for permission to live in the State of New York. Raul Sanchez pled guilty on December 17, 1997, to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and received a five-year term of imprisonment. Sebastian Imperato pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2c(2), presently codified as N.J.S.A. 2C:14-2a(7), and received a sentence of probation for two years, with 180 days of incarceration in jail. Both received the mandatory special CSL sentence required by N.J.S.A. 2C:43-6.4, and both instituted administrative procedures here and in New York seeking permission to live in the State of New York. We omit most of the details of those ultimately unsuccessful procedural steps because they have no bearing on the issue to be decided.
The Parole Board conditionally approved the requests, subject to New York agreeing to supervise the appellants pursuant to UAOPS. Ultimately, the New York Division of Parole ("NYDP") refused because of our Parole Board's inability to assure"that violators will be returned to New Jersey if it is determined that they have violated the conditions of their release/supervision in an important respect."
Since our Parole Board's only recourse for a violation was the filing of a criminal complaint, which might not be pursued by the county prosecutor, it conceded that it lacked the necessary administrative authority. Nonetheless, it filed a formal grievance under the UAOPS, which has provisions for resolving disputes between its members. On or about July 21, 2003, the Executive Council of UAOPS issued an opinion agreeing with New York, while noting that New York could accept supervision as a matter of discretion. Consequently, the Parole Board denied the relocation requests, and Sanchez and Imperato filed separate appeals, which we have consolidated for purposes of this opinion. They argue they were entitled to relief under a proper construction of Megan's Law. Alternatively, they argue that Megan's Law is unconstitutional as applied in this setting.
The denials were based on the Parole Board's interpretation of Megan's Law. In short, it construed this statute to mean that a CSL defendant rejected by another state would have to remain in New Jersey for life. We disagree with that interpretation and hold that in this situation, which was not anticipated by our Legislature, the Parole Board may permit CSL defendants to reside in another state in appropriate circumstances even if that state refuses supervision under UAOPS. Therefore we reverse and remand to the Parole Board for further proceedings.
We note that recently, the Legislature adopted an amendment to Megan's Law resolving the instant problem for defendants whose sexual offenses occurred after January 14, 2004. L. 2003, c. 267. Section 1 of that law amends N.J.S.A. 2C:43-6.4 by redefining the special sentence as"parole supervision for life" ("PSL"), and section 2 amends N.J.S.A. 30:4-123.51b by adding subsection c, which grants the Parole Board administrative power over a PSL defendant to"revoke parole and return the parolee to prison for a specified length of time between 12 and 18 months...." Nonetheless, the problem remains for CSL defendants whose offenses occurred during the ten-year period preceding these amendments.
The fundamental goal of statutory interpretation is ascertainment of legislative intent. City of Clifton v. Zweir, 36 N.J. 309, 322 (1962). Courts must"try'to make sense out of the legislation, so far as text and context may allow.'" Id. at 323 (quoting Llewellyn, The Common Law Tradition: Deciding Appeals 529 (1960)). The solution does not result from "mechanically selecting and applying a canon or maxim of statutory construction and mouthing it as the reason for the result reached." Ibid. Ultimately, our decision must"turn'on the breadth of the objectives of the legislation and the commonsense of the situation.'" Koester v. Hunterdon County Bd. of Taxation, 79 N.J. 381, 391 (1979) (quoting J.C. Chap. Prop. Owner's etc. Assoc. v. City Council, 55 N.J. 86, 100 (1969)).
The critical language of the Megan's Law provision with which we are concerned states that"[p]ersons serving a special sentence of community supervision shall be supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4b (emphasis added). Although the statute does not expressly say so, we infer from the"as if on parole" language that the supervision was intended to be provided by the Parole Board and to the same extent as it would be for ordinary parolees. Cf. State v. Bond, 365 N.J. Super. 430, 443 (App. Div. 2003) ("the Legislature's intent to create a policy whereby CSL would mirror the conditions of parole is clear").
When this statute was enacted, our state had been participating in UAOPS for nearly sixty years. Given that context, and the absence of any express language indicating a Draconian desire to keep CSL defendants within our borders for the rest of their lives, we also infer that the Legislature ...