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In re Civil Commitment of E.D.

June 15, 2005

IN THE MATTER OF CIVIL COMMITMENT OF E.D.


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court addresses the procedure that should be used when there is a complaint that a person violated a term or terms of his or her conditional discharge and there is a request to recommit under the New Jersey Sexually Violent Predator Act (Act). Specifically, the Court determines the content of the notice that the State is required to give the committee prior to a hearing for an asserted violation of the conditional discharge.

E.D. has an extensive history of committing sex offenses and other crimes, including: rape, aggravated sexual assault, sexual assault, criminal sexual contact, burglary, criminal mischief, and weapons offenses. Prior to the expiration of a sentence E.D. was to serve through May 2002, the State filed a petition seeking to commit him pursuant to the Act. The initial commitment hearing was conducted in February 2001. At the conclusion of the hearing and based on the expert testimony presented, the trial court concluded that E.D. was a sexually violent predator in need of commitment and committed him to the Special Treatment Unit (STU).

At the conclusion of the first annual review hearing for E.D. in February and April of 2002, the trial court found that the State failed to establish by clear and convincing evidence that E.D. continued to be a sexually violent predator and ordered his unconditional discharge. E.D. had previously appealed from the initial decision ordering commitment, and the State appealed from the decision ordering his release. The Appellate Division affirmed both judgments but remanded to the trial court for consideration of whether any conditions should be placed on E.D.'s discharge. On remand, it was determined that E.D's release should be subject to the following conditions: 1) living at the American Workers Mission Shelter (the Shelter) in Newark; 2) compliance with all rules and regulations of the Shelter; 3) attendance at outpatient sex offender and substance abuse counseling; 4) submission to random urine monitoring; 5) attendance at Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings; and 6) abiding the Conditional Discharge Community Service Agreement as prepared by the Parole Department.

E.D. was transported to the Shelter on December 4, 2002. On February 7, 2003, E.D. left the Shelter without permission, believing that the sixty-day probationary period had expired. On February 10, 2003, the State sought an Order returning E.D. to STU and to confine him there until the court determined whether to revoke the order of conditional discharge.

By letter dated February 13, 2003, E.D's attorney requested that the State provide written notice of the exact terms of the conditional release that E.D. has been accused of violating. He received no response. On February 27, 2003, E.D. was evaluated by Dr. Barone, a clinical psychologist at STU. A copy of Dr. Barone's report was hand delivered to E.D.'s attorney the Friday before the hearing scheduled for Monday, March 3, 2003.

The trial judge denied E.D's counsel's request to limit the evidence based on the late receipt of the Barone report, finding that Dr. Barone's evaluation gave E.D. sufficient notice of the asserted violations and, therefore, satisfied due process. At the conclusion of the hearing, the trial court found that there was at least probable cause that E.D. should be recommitted, even without considering whether he violated the terms of his conditional release. The judge rescheduled the hearing for three weeks. Following the conclusion of that hearing, the court found that it was a mistake to have conditionally discharged E.D; that the evidence clearly demonstrated an unsuccessful adjustment; and that E.D. left the Shelter without permission. The trial court held that the State established that E.D. continued to be a sexually violent predator and that he was highly likely to reoffend if not committed. The court ordered his recommitment and set a one-year review date.

The Appellate Division affirmed, concluding that all of the trial court's findings were supported by sufficient and substantial evidence. The appellate panel recognized the deficiencies in the notice given to E.D. prior to his revocation hearing, yet found that error to be harmless. In respect of E.D.'s challenge to recommitment, the panel concluded that the trial court not only found that E.D. violated a term of his conditional discharge but that he was highly likely to reoffend if not committed.

The Supreme Court granted certification.

HELD: Due process requires that the State give a committee written notice of each asserted violation of a conditional discharge, and that prior to recommitment under the New Jersey Sexually Violent Predator Act, the State must prove by clear and convincing evidence the person is highly likely to reoffend.

1. Civil commitment constitutes a significant deprivation of liberty that requires due process protection. Although the Act provides for notice to the committee that he or she has failed to meet the terms of the discharge order, it does not indicate the content or scope of such notice. Due process requires notice that sufficiently defines the issue to permit the person a fair opportunity to prepare and to defend against the accusation. A person should be informed in the notice about the asserted violation or violations to enable preparation of a defense. (Pp. 10-12)

2. Like the procedures utilized for hearings for mental health commitment and for violations of probation, the procedure for a hearing for violation of a conditional discharge under the Act must provide meaningful notice. At a minimum, prior to a revocation hearing under the Act, the person must be given written notice of each alleged violation sufficiently in advance of the court proceeding to provide a reasonable opportunity to prepare a defense. (Pp. 12-14)

3. The failure to provide E.D. with written notice of each asserted violation of his conditional discharge was a denial of his right to due process. Even if the State had told E.D. that it was going to rely on Dr. Barone's report, that report was not timely. E.D. was given neither sufficient notice nor adequate time to prepare and to defend against the State's allegation of his violation of the conditional discharge. (Pp. 12-15)

4. The deficiencies in the notice received by E.D. were subsequently cured when the trial court continued the hearing until March 27, 2003. At that time, E.D. was told of the reasons the State claimed he violated his conditional discharge and that the court sought to recommit him. Thus, on the facts presented, E.D. received sufficient notice of the charges and adequate time to prepare a defense prior to the final hearing. (Pp. 15-16)

5. In order for the State to cause the recommitment of a committee who has been conditionally discharged, the State must establish by clear and convincing evidence that the committee is highly likely not to control his or her sexually violent behavior and will reoffend. Here, the trial court failed to express the standard of proof used in making its findings. The failure to set forth that the court's findings were based on clear and convincing evidence was error and requires a remand. (Pp. 16-19)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED consistent with the views expressed herein.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and RIVERA-SOTO join in JUSTICE WALLACE'S opinion.

The opinion of the court was delivered by: Justice Wallace

Argued February 15, 2005

This appeal presents us with the opportunity to address a challenge to the procedures used to revoke a committee's conditional discharge and to recommit under the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-72.24 to -27.38 (the Act). We upheld the constitutionality of the Act in In re Commitment of W.Z., 173 N.J. 109 (2002). We now hold that due process requires the State to give the committee written notice of each asserted violation, and that prior to recommitment under the Act the State must prove by clear and convincing evidence the person is highly likely to reoffend.

I.

E.D. has an extensive history of committing sex offenses and other crimes. In September 1977, E.D. was charged with rape and assault with intent to rape. He was subsequently found guilty and evaluated at the Adult Diagnostic and Treatment Center (Avenel). At that time, the evaluation concluded that E.D. did not fall under the purview of the Sex Offender Act. In June 1978, the trial court imposed a fifteen-year sentence. In 1988, E.D. was sentenced to an eight-year prison term with a four-and-one-half year period of parole ineligibility for a robbery conviction. He was paroled in February 1994, and two months later, he was arrested and charged with burglary, aggravated sexual assault, sexual assault, aggravated criminal sexual assault, and criminal sexual contact. ...


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