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In re Civil Commitment of S.X.H.


February 1, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 399-05.

Per curiam.



Submitted January 14, 2008

Before Judges C.S. Fisher and C.L. Miniman.

In this appeal, we consider S.X.H.'s contention that he was deprived of a fair hearing when found to be a sexually violent predator. His argument is based upon the assertion that the trial judge took a dismissive view of his pretrial motions, exemplified by the judge's alleged labeling of his motion papers as "garbage" and her alleged tossing of them into the garbage during an off-the-record discussion with counsel. Although the judge disputed this, the record has not generated a definitive and conclusive understanding of what occurred. However, rather than remand for further proceedings about this dispute, we resolve any doubts about the fairness of the proceedings by remanding for a new trial.

S.X.H. pled guilty to first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). At the same time he pled guilty to first-degree kidnapping and first-degree aggravated sexual assault regarding a separate incident. He was sentenced on May 21, 1998 to concurrent seven-year prison terms.

On May 26, 2005, the State filed a petition seeking a determination that S.X.H. was a sexually violent predator and his commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (the Act), N.J.S.A. 30:4-27. 24 to -27.38. The next day the trial court entered an order that temporarily committed S.X.H. to the STU pending a final hearing, which ultimately commenced on September 27, 2005.

Five days before the start of the final hearing, S.X.H. filed three motions, which raised four issues, namely: whether the enforcement of the Act would violate his constitutional rights; whether the State's expert had rendered only a net opinion; whether S.X.H. was entitled to a probable cause hearing in advance of the final hearing; and whether a hearing, pursuant to N.J.R.E. 104(a), was required to ascertain the reliability of hearsay statements considered by the State's expert in formulating his opinions.

Other than a brief comment uttered during counsel's summation at the conclusion of the final hearing,*fn1 the record of the proceedings in the trial court contained no mention let alone disposition of S.X.H.'s motions. The hearing was conducted over the course of two days at the conclusion of which the trial judge rendered an oral decision. The trial judge found the State's evidence to be clear and convincing, and she committed S.X.H. to the STU.

S.X.H. filed a timely appeal and thereafter filed a motion to expand the record to include his trial counsel's affidavit. This affidavit asserted that a few minutes before the commencement of the final hearing, the trial judge reviewed the pretrial motions "for no longer than 30 seconds and exclaimed 'this is garbage' whereupon she tossed them in the garbage."

In response, the State sought a limited remand. The deputy attorney general's certification neither confirmed nor denied her adversary's sworn recitation that the trial judge cursorily reviewed the papers and then threw them in the garbage; instead, the deputy attorney general asserted only that the trial judge "found these motions to be totally frivolous and rejected" them. The deputy attorney general acknowledged -- and it is not a matter of dispute -- that the record contained no disposition of S.X.H.'s pretrial motions; as a result, the State sought a remand to "recreate the record" regarding the disposition of those motions. We granted both motions so that the matter in controversy could be "developed" in the trial court.

In response to our mandate, the trial judge conducted a hearing, which commenced with her description of the remand order. After this, the judge said only, "I'm here," which caused understandable doubt in counsel's mind as to the procedure he was to follow:

[COUNSEL FOR S.X.H.]: . . . shall I proceed?

THE COURT: Yes, sir.

[COUNSEL FOR S.X.H.]: Yeah, I thought just what we were to do is to reconstruct the record of what happened.

THE COURT: I beg your pardon. I'm going to act upon the remand. You got it.

[COUNSEL FOR S.X.H.]: Yeah. And the --

THE COURT: And I'm here.

[COUNSEL FOR S.X.H.]: My understanding of the remand was just for each of us to describe what our recollection of -- of the event in question was.

THE COURT: I wish that were so. However, the remand is for the development of the record -- the matter, not the record. The development of the matter, the matter being expanding the appellate record to include certification of trial counsel. The matter can be developed. I'm here for you to develop the record.

With this for guidance, S.X.H.'s counsel began to explain his recollection of what occurred with his pretrial motions.

The history of these motions, according to counsel, included an off-the-record telephone discussion with another judge (the other judge). The trial judge interrupted counsel's recitation to advise that the court's file contained the other judge's handwritten note about the telephone conversation. The trial judge interpreted this note as revealing that S.X.H. had withdrawn his motions.*fn2 S.X.H.'s counsel disputed this. After reviewing their statements during the remand proceedings, and after considering the content of the note, which was read into the record by the trial judge,*fn3 we conclude only that the note's meaning is a matter of interpretation.

But the need to engage in such an interpretation should not have become necessary. S.X.H. was entitled to a disposition of his motions in accordance with the procedures outlined in our court rules. See R. 1:6-2; R. 1:7-4(a). Had the motions actually been withdrawn, that fact should have been memorialized in a less obscure manner. See R. 1:6-7. If they were not withdrawn,*fn4 they should have been adjudicated and the court should have entered an order, accompanied by an adequate explanation of the judge's reasoning by way of either a written or oral decision. Neither the other judge's unrecorded telephonic discussion nor the trial judge's off-the-record discussion with counsel about those motions prior to trial conformed to acceptable procedures.*fn5

Moreover, even if expansively viewed, it is plainly apparent that the other judge's handwritten note related only to one discrete part of S.X.H.'s pretrial motions. Under any plausible interpretation of the note, there remained other aspects of the pretrial motions that had not been withdrawn and were never ruled upon prior to trial. The State acknowledged this, as did the trial judge.*fn6 Accordingly, the significance of the dispute about the earlier telephone discussion between counsel and the other judge largely eludes except that it raises additional questions about the conducting of this case, which has grave importance to both S.X.H. and society.

Following our remand, the trial judge remained dismissive of certain aspects of S.X.H.'s pretrial motions. With regard to the constitutional issues raised in one of the motions, the trial judge said only:

That motion was dismissed as frivolous; however, no order to that effect was ever entered. I'm supplementing the record now by indicating that that's what I said: It was too frivolous to merit discussion.

As for the motion to dismiss or for the crafting of a remedy less onerous than commitment, the judge was similarly dismissive, saying only:

That was not heard as too frivolous, having no legal foundation nor requiring any argument. It's a settled legal principle.

The trial judge thereafter set forth a thorough opinion on the remaining aspects of S.X.H.'s pretrial motions. As a result, we have been provided with a sufficient understanding of a portion of S.X.H.'s motions, but we remain without an understanding of why the judge believed other parts of S.X.H.'s motions were so frivolous as to require absolutely no comment. Even if the judge's conclusions about those applications were accurate, the parties and this court were entitled to at least a brief description of the arguments and the judge's reasoning as to why they were without merit. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980); In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003); Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). A judge's conclusory declaration that a motion is too frivolous to discuss is not sufficient.

The remand proceedings also included the recollections of the trial judge and counsel about the manner in which the trial judge disposed of S.X.H.'s pretrial motions. S.X.H.'s trial counsel briefly reiterated what he had asserted in the affidavit filed with this court. He stated during the remand proceedings that the trial judge briefly looked at the motions, "indicated that they were garbage" and "threw them in the trash." That triggered the following colloquy:

THE COURT: You swore to it as a fact.

[COUNSEL FOR S.X.H.]: That's correct, Your Honor.

THE COURT: So, do you want to do it again?

[COUNSEL FOR S.X.H.]: I swear that that is my recollection of the event.

THE COURT: That's your recollection.

[COUNSEL FOR S.X.H.]: That's correct.

THE COURT: You realize that as I stand before you, you're accusing me not only of a grave disciplinary breach, but also of a criminal offense?

[COUNSEL FOR S.X.H.]: (Pause). Your Honor, I'm just --

THE COURT: How far do you want to take this?

[COUNSEL FOR S.X.H.]: I'm just here to state what I -- what I remember happening, Judge.

That's -- that's it.

THE COURT: And you understand what you have said in that affidavit.


The judge then invited the deputy attorney general to respond. The deputy attorney general stated that It's not my recollection that that's what happened. My recollection is that the motions were deemed frivolous and they were denied, each one of them.

She offered no further description of whatever had occurred.

The judge then provided her recollection:

Now, as to developing the matter, I have in my hands a motion to dismiss or craft a less restrictive alternative, et cetera. This document, which anybody is free to look at if you wish, has obviously never been in the trash. It's not stained with coffee. It's not even wrinkled.

But what I wish to point out [is that] these motion papers bear the fax receipt of my office. They were received on September 22nd, 2005 at [the judge's facsimile number]. . . . [T]here's no way that I could have phonied this up today.

These documents have been in the court's file in the court's office, which is the filing center for this court, and could have been seen by anyone with the energy to ask. They were never thrown in the trash. They have at all times been exactly where they're supposed to be. And this court has never destroyed public records as I am accused of having done. Here they are.

To allege that this court did not prepare a motion in advance, what can I say about that? This court always does. And counselor, you know it, you know it. That I looked at [an] accumulation of papers submitted to me as a judicial officer, perused them for 30 seconds and threw them in the garbage, never happened.

Let's get back to developing the matter. Counsel's affidavit, which he seeks to include in the appellate record in this case, is a complete fabrication. It's a work of fiction. It's a work of the imagination. It never happened. And is, as I pointed out from so many references in the record, demonstr[ably] false.

. . . The affidavit of counsel is patently . . . demonstrably false and known to be, as I've demonstrated out of counsel's own mouth. This is nothing short of a libel hiding behind privilege. I've done all I can to develop the matter. Good day.

The following colloquy occurred immediately thereafter:

[COUNSEL FOR S.X.H.]: I just have a couple -- a couple comments --

THE COURT: We're done.

[COUNSEL FOR S.X.H.]: -- to add to the record.

THE COURT: We're done.

[COUNSEL FOR S.X.H.]: I'm not.

THE COURT: You're done. I'm off the record.

That exchange concluded the hearing.

In considering that an appellate court "has to operate in the partial vacuum of the printed record," Judge Jayne colorfully stated that "the best and most accurate record [of oral statements] is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried."

Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952). That, however, is not always so. The tone of the remand proceedings in this case resonates from each written page and the transcript bears little resemblance to Judge Jayne's "dehydrated peach." For example, the judge asserted that counsel had accused her "of a grave disciplinary breach" and "a criminal offense," she demanded to know "how far [counsel] want[ed] to take this," and she reminded counsel that he had said all this in an affidavit in order to suggest counsel's exposure if his affidavit was false.

We are satisfied that if the facts were as asserted by S.X.H.'s counsel then sufficient doubt would have been presented about the fairness of the proceedings that followed.*fn7 The problem is that we are unable to determine what actually occurred prior to trial. In this sense, "[t]he condition of the record before us makes the case unreviewable." Magill v. Casel, 238 N.J. Super. 57, 61 (App. Div. 1990).

Although, as observed in Magill, we would "[o]rdinarily . . . tax the moving party with deficiencies . . . in the record he presents to us," ibid., it would be unfair to do so here. S.X.H. presented this problem to us well in advance of our consideration of the appeal's merits, and we remanded for a development of the record in the hope of avoiding the problems identified in Magill. That remand proceeding, however, resulted only in demonstrating that there remains a genuine dispute about what occurred during the off-the-record discussions in this case.

The lack of a contemporaneous record and the failure of the remand proceedings to clarify the matter may not be laid entirely at counsel's doorstep. There is no dispute that S.X.H.'s pretrial motions were not disposed of on the record, there is no dispute that the trial judge did not memorialize her disposition of the motions, and there is no dispute that S.X.H.'s counsel was not given an opportunity to be heard on the record about these motions prior to or during the course of the trial. See n. 1, supra. These were matters within the control of the trial judge, not counsel. See R. 1:2-1 and 1:2-2. As a result, we conclude that our inability to meaningfully review the question presented is not entirely the fault of counsel, and that it would be unfair to simply find that S.X.H. must bear the brunt of the record's inadequacies.

In short, the underlying problem actually before us --whether there was evidence of the judge's animus toward S.X.H.'s counsel, and, therefore, inferentially toward S.X.H. himself --cannot be resolved by resort to the existing record. As we have mentioned, we are satisfied that if the allegations of S.X.H.'s counsel are true, then the judge should not have continued to preside over the matter and, because she did, the product of that trial, and her rulings on the pretrial motions that did not occur until the remand proceedings, cannot be sustained; on the other hand, if the allegations of S.X.H.'s counsel are not true, then there would be no reason to question the fairness of the final hearing.*fn8

We observed in Magill that in many cases in which the fairness of a hearing is called into question, because of the partiality of the judge, "the record is simple." 238 N.J. Super. at 64. In most cases, "[t]he judge is either related to a plaintiff or not, the owner of stock in a corporate defendant or not, former counsel to a litigating municipality or not," ibid., and "[c]hances of a disagreement over basic facts are disappearingly small," id. at 63. This, however, is one of those rare cases where there is a disagreement over basic and material facts.

As we have demonstrated, it is relevant to our inquiry about the fairness of the hearing to know whether the alleged event did or did not occur. If it occurred, then we are satisfied that it cast a shadow long enough to cause serious doubts about the fairness of what followed; but if it did not, we have no cause to question the trial's fairness. The dispute is simply described; its resolution is not easily attained at this stage.

The problem we face is that our remand did not create a mechanism for resolving that disputed question. When amplifying on what occurred in the pretrial, off-the-record meeting in question, the judge and counsel provided only starkly different versions.*fn9 And the static record presented to us does not permit our adjudication of the witnesses' credibility. We are left with a genuine fact dispute that we are not equipped to resolve on our own.

We are also unable to evaluate S.X.H.'s contentions on appeal that various comments by the judge toward his counsel during the course of the final hearing demonstrated the judge's partiality. It is true that a review of these comments in a vacuum does not necessarily support S.X.H.'s contentions. But, although desiccated, the transcript takes on a quite different flavor and can be said to drip with additional content once the reader assumes the truth of counsel's affidavit about the fate of his motions during the pretrial off-the-record encounter. S.X.H.'s contentions about certain exchanges between the judge and his counsel during the course of the trial are hopelessly intertwined with the overarching factual dispute that has not been, and presently cannot be, adjudicated.

We further note that the mechanism existed to obtain an impartial determination of what occurred between counsel and the trial judge during their pretrial discussion about S.X.H.'s motions. N.J.S.A. 2A:15-50 permits a judge to appoint three disinterested persons to resolve such a factual dispute, see Magill, supra, 238 N.J. Super. at 64, as occurred in Clawans, supra, 10 N.J. Super. at 606, when, pursuant to the challenged judge's invocation of the statute, then County Judge (later Justice) Francis and two other sitting judges were impaneled to determine whether there were grounds for disqualification. We suppose that we could now remand for such a proceeding.

But we are also satisfied that no benefit would come from an additional skirmish along these lines. S.X.H. and the people of this State are entitled to an expeditious resolution of the real issue in dispute: whether S.X.H. is a sexually violent predator and whether he should be committed to the STU. Our focus should be on the fact that S.X.H.'s liberty interests are at stake and that the people are entitled to a final disposition of S.X.H.'s status. Accordingly, we feel compelled to avert our gaze from the collateral issues that have become appended to this case, and we are resolved to the view that if there is sufficient uncertainty about the fairness of the final hearing, we must err on the side of the individual.

We are convinced that we should not further burden the administration of justice by remanding for additional proceedings to resolve the existing factual dispute when its only product would be the embarrassment of either the trial judge or S.X.H.'s counsel. We will reverse the order under review and remand for a new trial because that presents a more efficient and productive step in this unfortunate matter. S.X.H. shall continue to remain committed to the STU. The Assignment Judge of the vicinage shall assign the case to a new judge, who shall promptly set both a return date for the argument of S.X.H.'s pretrial motions and a new trial date.

Reversed. We do not retain jurisdiction.

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