On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 394 N.J. Super. 517 (2007).
(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).
The central issue in this appeal is the process that is due to a community-supervised-for-life offender prior to the imposition of a curfew.
Ronald Jamgochian was twice convicted of sexually assaulting young women after luring them to his "photography studio" with offers of modeling work. After serving the prison term on his most recent conviction, Jamgochian was released subject to community supervision for life. On April 14, 2005, three-and-one-half years after his release, Jamgochian propositioned a seventeen-year-old waitress (pseudonym "Sarah") with an unspecified job opportunity while telling her to keep their conversations secret. Sarah contacted the police. On April 15, 2005, Jamgochian's District Parole Supervisor imposed two special conditions on his supervised status, directing that Jamgochian have no contact in any form with Sarah and that he comply with a curfew at his "residence between the hours of 8:00 pm and 7:00 am daily." Three days later, the District Parole Supervisor imposed an additional special condition, requiring that Jamgochian "participate in, and successfully complete an appropriate mental health-counseling program" for sex offenders.
Approximately two weeks later, Jamgochian, through his attorney, wrote to the Chairman of the New Jersey State Parole Board, objecting to the imposition of the special conditions because they were not approved by a panel of the Parole Board and because they were unwarranted and unreasonable. On May 4, 2005, a two-member Parole Board panel affirmed the imposition of the three special conditions, stating that Jamgochian's conduct was "alarmingly similar" to the steps he took leading to his previous crimes. Jamgochian then appealed to the full Parole Board, claiming that the imposition of the special conditions violated his federal and state constitutional rights to due process and to confront the witnesses against him.
On February 24, 2006, by letter, the full Parole Board concurred with the panel's decision to impose the special conditions and further determined that Jamgochian was not entitled to a hearing. Jamgochian then filed an appeal challenging only the curfew. On August 28, 2006, while the appeal was pending, the Board placed the curfew in abeyance.
A divided three-judge panel of the Appellate Division concluded that Jamgochian was denied due process because the governing regulation, N.J.A.C. 10A:71-6.11(1), provided "an inadequate procedural framework" for the imposition of the curfew and denied him "a meaningful opportunity to be heard." The majority determined that due process under both the Federal and State Constitutions "mandates more extensive procedural rights than presently permitted by N.J.A.C. 10A:71-6.11(1)." The majority applied the three-prong factor test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which balances the right at stake, the potential for an erroneous deprivation of the right through the procedures used, and the government's interest. Although the majority declined "to define the scope of a constitutional procedural framework," it strongly suggested that due process may require the right to discovery materials in advance of a hearing, the right to confront and call witnesses, and the right to counsel.
In dissent, Judge Wefing concluded that Jamgochian was not entitled to a hearing because he did not directly deny Sarah's allegations. On that basis, Judge Wefing reasoned, Jamgochian "received the process to which he was due" and therefore she would have "affirm[ed] the action of the Parole Board."
The Board appealed as of right, R. 2:2-1(a)(2), and also filed a petition for certification, which the Supreme Court granted.
HELD: A community-supervised-for-life offender, who, for some time, has been released into the community, must be afforded due process of law before the Parole Board can impose a curfew confining the offender to his home. The level of process will depend on a number of variables and the unique circumstances of each case. At a minimum, a supervised offender must be provided reasonable notice and a meaningful opportunity to be heard.
1. Community supervision for life was "designed to protect the public from recidivism by defendants convicted of serious sexual offenses." In 1998, N.J.S.A. 2C:43-6.4(b) provided 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." (Emphasis added). In addition to the general conditions, supervised offenders are required to abide by "any special conditions established by the appropriate [Parole] Board panel." N.J.A.C. 10A:71-6.11(b)(17). A violation of a "condition of a special sentence" is a fourth-degree crime carrying a presumption of imprisonment. (Pp. 16-17)
2. The Fourteenth Amendment of the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." Although Article I, Paragraph 1 of the New Jersey Constitution does not expressly state that due process of law protects persons from arbitrary government action, it does provide "that every person possesses the 'unalienable rights' to enjoy life, liberty, and property, and to pursue happiness." Because this Court has, from time to time, construed Article 1, Paragraph 1 to provide more due process protections than those afforded under the United States Constitution, the Court analyzes the due process concerns in this case under its State Constitution, confident that any remedy it prescribes will be sufficient under the Federal Constitution. (Pp. 18-20)
3. The Court hardly need say that a person facing a criminal prosecution and the potential loss of freedom has a significant liberty interest at stake and is entitled to the fullest protection of due process. It is recognized, as well, that paroles, probationers, and even prisoners have liberty interests that implicate the commands of due process. In light of the cases in which both the United States Supreme Court and this Court have recognized liberty interests, the Court concludes that Jamgochian, three-and-one-half years after completing his sentence, and even while on lifetime community supervision, had a liberty interest in his continued freedom, and that an eleven-hour curfew, every day for sixteen months, implicated that interest. The Court does not agree with the Board that, because Jamgochian was subject to parole conditions during his lifetime community supervision, a curfew -- however arbitrarily imposed -- did not amount to an additional curtailment of a liberty interest. Even those who possess a conditional or limited freedom have a right to protection from arbitrary government action. On the other hand, the Court does not agree with Jamgochian that his status as a community-supervised-for-life offender entitles him to the "full panoply of rights" available at a criminal trial before a curfew can be imposed, or that he is necessarily entitled to the same procedural protections afforded at a parole or probation revocation hearing. Therefore, the liberty interest at issue here, however defined, is greater than the Board would admit and less than Jamgochian would have us find. (Pp. 20-23)
4. A comparison between the almost total absence of process in this case and the process required before parole or probation can be revoked or a prisoner can be seriously disciplined provides a useful perspective. Procedural safeguards are required in parole and probation violation cases to ensure that a parolee or probationer is not erroneously imprisoned, and in prisoner disciplinary cases to ensure that a prisoner is not wrongly subject to such punishment as solitary detention or loss of good time credits. The Court has also recognized that the minimal requirements of due process, notice and an opportunity to be heard, are mandated before restitution can be ordered as a condition of a defendant's probation. These procedural safeguards stand in stark contrast to the lack of process afforded to a community-supervised-for-life offender, who may be confined to his home indefinitely and for as many hours a day as the Parole Board determines suitable. Respect for the law is not bred by imposing penalties unfairly and arbitrarily. The Court thus finds that the procedural protections available to an already-released, community-supervision-for-life offender facing a curfew are woefully inadequate. (Pp. 23-27)
5. The individual's liberty interest and the value of added procedural protections must be balanced against the State's interest in maintaining a manageable parole system. However, when balanced against the significant consequences of wrongly depriving a supervised offender of his freedom without due process, the Court finds that the administrative burden argument is a poor rationale for upholding the current system. The balance of interests weighs in favor of giving a supervised offender the opportunity to respond in a meaningful way to allegations or charges that have prompted the imposition of a curfew. Therefore, before a curfew can be imposed, due process demands that, in circumstances such as here, a supervised offender must be given reasonable notice and a meaningful opportunity to be heard. The level of process will depend on a number of variables and, to merit a hearing, the supervised offender first must deny the allegations or contest the conclusions to be drawn from the allegations or the rationale supporting the curfew. The variables to be considered include: the number of hours imposed as a curfew; the length of the curfew; the nature of the allegations warranting the curfew and whether the allegations are challenged or unrebutted, in which case the only question may be the inferences to be drawn from uncontested facts; whether credibility determinations based on opposing accounts are material to resolve the question at issue. (Pp. 27-35)
6. Based on the record before the Court, the Parole Board in this case could reasonably have concluded that Jamgochian's conduct had the appearance of a prelude to recidivism. Nevertheless, although Jamgochian never denied the statements made by Sarah to the police, he should have been entitled to challenge, whether in writing or in person, the inferences to be drawn from her account, and the rationale for the imposition of the curfew. Importantly, Jamgochian is no longer under a curfew, and therefore this decision will apply to future curfews that may affect him or other community-supervised-for-life offenders. (Pp. 35-36)
The judgment of the Appellate Division is AFFIRMED as modified by this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN's opinion.
The opinion of the court was delivered by: Justice Albin
Ronald Jamgochian was twice convicted of sexually assaulting young women after luring them to his "photography studio" with offers of modeling work. After serving the prison term on his most recent conviction, Jamgochian was released subject to community supervision for life. Thereafter, Jamgochian propositioned a seventeen-year-old waitress with an unspecified job opportunity while telling her to keep their conversations secret. She became suspicious and reported the matter to the authorities. In response, the Parole Board imposed a curfew without any expiration date, confining Jamgochian to his home between the hours of 8:00 p.m. and 7:00 a.m. The curfew lasted sixteen months.
Before and after imposing the curfew, the Parole Board denied Jamgochian's demand not only for an adversarial hearing, but any type of hearing. The Appellate Division concluded that the Parole Board violated Jamgochian's right to due process of law by imposing and then continuing the curfew without providing him with sufficient notice and an adequate opportunity to be heard. We affirm, although for slightly different reasons than the Appellate Division. We now hold that, despite Jamgochian's status as a community-supervised-for-life offender, the Parole Board was obliged to afford him the due process protections of notice and an opportunity to be heard, and that those minimal requirements were not met in this case.
In 1979, Jamgochian was convicted of committing a number of crimes, including kidnapping and aiding and abetting rape and sodomy, and sentenced to twelve years in New Jersey State Prison. The crimes involved Jamgochian first luring a young woman to his home under the pretense of offering her a modeling job and then forcing her to perform simulated sexual acts while his confederates took photographs.
In 1998, Jamgochian pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1). The sexual crime involved Jamgochian again luring a young woman with the false promise of modeling work -- posing for the cover of a romance novel. While at his "studio," Jamgochian persuaded the young woman that the photography shoot required that he bind her to a bed with chains and leather straps. After the woman was rendered helpless, Jamgochian forced her to perform oral sex and to simulate other sexual acts while he videotaped the scenes. Jamgochian was sentenced to a four-year prison term for sexual assault and a concurrent four-year term for the weapon offense. Jamgochian was also ordered to comply with the requirements of Megan's Law, N.J.S.A. 2C:7-2, and community supervision for life, N.J.S.A. 2C:43-6.4 (prior to 2003 amendment).*fn1
The day before his release from prison in October 2001, Jamgochian signed a two-page form, acknowledging that he was subject to "the special sentence of community supervision for life" and required to abide by twenty-two "general conditions."*fn2
Among other things, those conditions required Jamgochian to obtain permission from his parole officer before changing his address, leaving the state, or accepting employment; to submit to drug or alcohol testing, or any medical or psychological examination ordered by his parole officer; and "to comply with any curfew established" and "any other reasonable instruction or directive given by [his] parole officer." No curfew was imposed at the time of his release.
On April 14, 2005, three-and-one-half years after Jamgochian's release, a seventeen-year-old waitress at a diner (Sarah)*fn3 reported to the Rockaway Township Police Department that a customer known to her as Ron had contacted her on her cell phone and offered to "help" her financially, remarking that she could earn $300 working only two hours a week. The customer --later identified as Ronald Jamgochian -- told her that he did not want to discuss the details over the telephone and made her promise not to tell anyone about the conversation. He also attempted to arrange a meeting with her that weekend. Earlier that same day, Jamgochian had approached Sarah at the diner and asked if they "could have a conversation that no one would find out about." Both at the diner and over the telephone, Sarah let Jamgochian know that she "was uncomfortable with the situation," particularly his repeated requests that she not tell anyone about their conversations. The next day, Sarah's mother learned from the owner of the diner that Jamgochian "had been in jail for 'trouble with young girls.'" Sarah then contacted the police.
On April 15, 2005, Jamgochian's District Parole Supervisor imposed two special conditions on his supervised status, directing that Jamgochian have no contact in any form with Sarah and that he comply with a curfew at his "residence between the hours of 8:00 pm and 7:00 am daily." Three days later, the District Parole Supervisor imposed an additional special condition, requiring that Jamgochian "participate in, and successfully complete an appropriate mental health-counseling program" for sex ...