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County of Hudson v. State of New Jersey Dep't of Corrections


May 18, 2009


On appeal from Executive Order No. 118, Issued September 22, 2000.

Per curiam.


Argued April 22, 2009

Before Judges Cuff, Fisher and Baxter.

We address in these consolidated appeals the continued viability of an executive order, issued in 2000, which mandated the continued temporary housing of sexually violent predators at the Hudson County Correctional Facility in Kearny (the Kearny facility). The failure to locate a housing alternative for the last nine years compels our holding that the circumstances upon which the executive order was based no longer constitute an emergency within the meaning of the Disaster Control Act, N.J.S.A. App. A:9-30 to -45, and that appellants are entitled to relief.


In 1998, the Legislature enacted the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which authorized the involuntary civil commitment of persons found to be sexually violent predators.*fn1 The SVPA placed with the Department of Corrections (DOC) the responsibility of operating a facility for "the custody, care and treatment" of SVPs. N.J.S.A. 30:4-27.34.

In April 1999, the DOC designated the Kearny facility, which at the time housed 311 minimum security inmates, as the only available site for the temporary housing of SVPs. A few months later, the County of Hudson filed a complaint, which alleged the DOC's failure to provide a fully-executed lease agreement or to pay rent for July, and obtained an order that required the DOC to show cause why the lease should not be terminated and the DOC enjoined from designating the Kearny facility as a location for the housing of SVPs. The trial court concluded that the County was under no obligation to lease the facility to the DOC and entered a judgment for possession, in favor of the County, on January 3, 2000; the judge stayed execution of the warrant of removal until March 31, 2000. We affirmed by way of an unpublished opinion, County of Hudson v. Department of Corrections, No. A-3008-99T1 (App. Div. June 21, 2000), and the trial judge thereafter issued a warrant of removal but continued to stay its execution until September 29, 2000.

On September 22, 2000, one week before the stay expired, Governor Christine Todd Whitman invoked her emergency powers, pursuant to the Disaster Control Act, and entered Executive Order 118. Governor Whitman declared in the order's preamble that approximately 120 SVPs were then housed in the Kearny facility, the number "will continue to increase," and the removal of the SVPs "from the Kearny facility will create a statewide emergency within the meaning of the Disaster Control Act." As a result, Governor Whitman ordered:

1. Pursuant to the Disaster Control Act, the Kearny facility is hereby designated as a facility appropriate for the temporary housing of [SVPs] by the [DOC].

2. The Kearny facility will be used to house [SVPs] until there exists either other temporary facilities capable of and appropriate for the housing of all individuals committed pursuant to the [SVPA] or until a permanent facility capable of accommodating this population is constructed and operational.

3. Hudson County shall be compensated for the use of the Kearny facility consistent with the terms of the 1998 payment provisions of the lease; and

4. This Order shall take effect immediately.

The County applied in the trial court for an order that would require the DOC to demonstrate that Executive Order 118 was legitimately based on the Disaster Control Act. The trial judge determined that original jurisdiction over that issue laid with this court, causing the County to apply here for relief. We found that Executive Order 118 constituted a valid exercise of the authority provided by the Disaster Control Act. County of Hudson v. State, No. A-709-00T3 (App. Div. January 22, 2002).


On June 1, 2004, the County and the DOC filed a stipulation of settlement, which provided terms for the continued leasing of the Kearny facility and contained the County's stipulation not to challenge Executive Order 118 until December 31, 2006. When that deadline passed -- and another year as well -- without an indication from the DOC as to when the SVPs would be removed from the Kearny facility, the County filed a notice of appeal. The mayor and members of Kearny's town council, as well as Hudson County taxpayers, also filed a notice of appeal.*fn2 These appeals, which sought our review of the DOC's failure to take the action anticipated by the stipulation of settlement and which challenged the continued viability of Executive Order 118, were consolidated. We have jurisdiction over the issues presented in these consolidated appeals. See County of Gloucester v. State, 256 N.J. Super. 143, 148 (App. Div. 1992), aff'd as modified, 132 N.J. 141 (1993).

The DOC thereafter filed a statement of the items constituting the record. See R. 2:5-4(b). Asserting that these items failed to provide a thorough understanding of the inadequacy of DOC's efforts in seeking an alternative to the Kearny facility, the County twice moved for a temporary remand for supplementation. We denied both applications.

Nevertheless, we deemed it advisable to explore at oral argument whether our disposition of the appeal would be benefited by further amplification of the DOC's efforts to relocate the SVPs. The DOC, which had opposed the earlier motions for supplementation, continued to oppose the idea; although it had previously argued otherwise, the County agreed that the documents comprising the record on appeal sufficiently demonstrate what the DOC has done since 2000. In short, the DOC argues that a hearing would produce nothing more of substance than appears in the static record, and the County contends that the existing record demonstrates the DOC's inadequate response to the problems that generated Executive Order 118. As a result of the parties' satisfaction with the content of the record on appeal, we will not force upon them additional proceedings they deem unnecessary. Moreover, we are concerned that the conduct of additional proceedings will only further delay identification of a permanent home for this State's SVPs. We, thus, resolve the issues presented by reference to the existing record on appeal.


The Disaster Control Act was originally enacted in 1941 in order to empower the State's governor to assist the federal government in the war effort. County of Gloucester v. State, 132 N.J. 141, 144 (1993); Worthington v. Fauver, 88 N.J. 183, 192 (1982). The Act was amended on a number of occasions during the ten years that followed to broaden its scope, Gloucester, supra, 132 N.J. at 144, and now authorizes the governor to "utilize and employ" all available resources of the State and all political subdivisions, and, also, to commandeer private property and the personal services of private persons. N.J.S.A. App. A:9-34. To accomplish the Act's purposes, the governor is "empowered to make such orders . . . as may be necessary adequately to meet the various problems presented by any emergency" on matters "that may be necessary to protect the health, safety, and welfare of the people or that will aid in the prevention of loss to and destruction of property." N.J.S.A. App. A:9-45i.

In considering whether an executive order is validly based on the Disaster Control Act, we must determine "(1) whether the current crisis constitutes an emergency within the meaning of the Disaster Control Act, and (2) whether the means chosen by the Governor to address the emergency are authorized by statute." Worthington, supra, 88 N.J. at 192. This requires an examination into "whether the Executive Order bears a rational relationship to the legislative goal of protecting the public" and whether the order is "closely tailored to the scope of the current emergency situation." Id. at 197-98.

In Worthington, the Court acknowledged that the governor was entitled to view prison overcrowding as an emergency within the meaning of the Disaster Control Act, and we made the same determination upholding Emergency Order 118 by way of our earlier unpublished opinion. The County does not presently question or seek our revisitation of that issue. Instead, the County argues that, even if viable when issued, Executive Order 118 can no longer stand because an inordinate amount of time has passed without the removal of the SVPs from the Kearny facility. The issue now before us, as it was for the Court in Gloucester, focuses on the duration of an executive order that was appropriately issued to deal with an emergent situation. In short, we must determine whether in 2009 it can be said that the emergency still exists in light of the fact that the SVPA was enacted in 1998 and Executive Order 118 issued in 2000.

In Gloucester, the Court considered the validity of the last of a series of executive orders, the first of which had issued twelve years earlier, as "a 'temporary' measure to combat prison overcrowding." 132 N.J. at 149. Recognizing that prison overcrowding remained "a pervasive problem," the Court held that "whether an 'emergency' exists requires a fact-specific analysis," which includes a consideration of "the passage of time, and other factors such as the extent to which the problem is within the government's control, and the extent to which remedial efforts have been undertaken." Id. at 150-51 (citations omitted).

In following this approach, we recognize that the problem of relocating the SVPs from the Kearny facility is a matter within the government's control. It is also incontestable that a considerable period of time has elapsed since adoption of the SVPA in 1998 and issuance of Executive Order 118 in 2000. Nevertheless, the DOC contends that its pursuit of remedial efforts has been sufficiently diligent to warrant the continued viability of Executive Order 118. Although we do not question the DOC's good faith in attempting to find the perfect solution to the problem, we do not find its efforts to be commensurate with the emergent nature of the situation.


The record on appeal demonstrates that the DOC has been active but not forceful -- or, at least, not effectual -- in finding a permanent solution to the problems that generated Executive Order 118. In August 1998, an architectural firm presented a plan to the DOC for the construction of a new 300-bed special treatment unit. State officials thereafter toured Minnesota's SVP facility, identifying several aspects of that facility that might prove beneficial to the DOC's existing proposal.

Consideration was given in September 1998 to building a facility on the grounds of East Jersey State Prison at an estimated cost of $20,000,000. Questions arose about the sufficiency of the estimate, followed by objections from the Township of Woodbridge, which commenced litigation and obtained an injunction halting the project.

The following month, discussions began in other locations. A site in Maurice River Township was identified as having potential, but was eventually opposed by the township.*fn3 And, in June 1999, a location in the Borough of Chesilhurst was considered. However, when State officials advised that a public hearing on the subject would be conducted, local residents and officials expressed intense opposition.

Little occurred with regard to the creation of a new facility until 2001 when the Department of Treasury requested that the architectural firm update and revise its 1998 study. The firm conducted a series of programming workshops with various officials in an attempt to reach a consensus on the program's needs; its comprehensive plan was presented on February 7, 2002. That plan estimated the cost of the structure at more than $65,000,000. The firm also estimated that the 455-bed facility would require twenty-five acres and estimated the entire cost of the project, including planning, design, construction, permitting and other costs, at more than $82,000,000. The plan was viewed as too expensive. In January 2006, the proposal was reconsidered. By that time, the cost estimate had risen to more than $114,000,000 and was again deemed too expensive.

Meanwhile, the adaptation of existing facilities was also explored. Starting in 2002, each of the DOC's facilities was examined and reviewed for this purpose and each deemed unsuitable for a variety of reasons. The DOC considered its Central Reception and Assignment Facility (CRAF) in Trenton, determined it required major improvements to all its buildings, as well as a 17,030 square foot extension at a total cost of more than $17,000,000, and then realized that utilization of CRAF would give rise to a need to find alternate housing for CRAF's inmates.

Utilization of the Mid-State Correctional Facility was complicated by the fact that the facility is located on federal property. As part of its realignment and closure of Fort Dix, the federal government imposed upon the property it had transferred to the DOC several conditions, which apparently raised concerns about a reversion of the property should it be used to house SVPs. The DOC also harbored concerns about the facility's size and perimeter security.

The grounds of the Albert C. Wagner Youth Correctional Facility in Bordentown consisted of one structure found to be too large (consisting of 846 beds), and other structures found too small. The Adult Diagnostic and Treatment Center in Avenel, which is the State's only sex offender prison, was considered.

But the proposed facility, if located there, would require subdivision from the remaining population, see N.J.S.A. 30:4-27.34a, and another location for the prisoners there housed.*fn4

The DOC also found problems with Bayside State Prison in Leesburg and Ancora Psychiatric Hospital in Winslow Township. Bayside consists of a 1,221-bed facility, deemed too large for the SVP population, and a farm with open barracks and cottage-type housing units, deemed too insecure for these purposes. Ancora consists of two separate housing units, with a total of 350 beds, separated by a walking and open recreation space, deemed insecure and unsuitable.

The DOC reconsidered CRAF in 2006; Jones Farm, a 282-bed satellite unit of CRAF was rejected as too small. On the other hand, East Jersey State Prison in Rahway, New Jersey State Prison in Trenton, Northern State Prison in Newark, Riverfront State Prison in Camden, and Edna Mahan Correctional Facility in Clinton, were considered too large. The main structure of Mountainview Youth Correctional Facility in Annandale was also considered too large, and its two satellite facilities were considered too small.

Other existing facilities presented similar problems. It is not surprising, in light of the nature of the assorted insufficiencies of the DOC's many facilities, that the County compares the DOC's dilemma in identifying an appropriate site to Goldilocks' quandary in "The Story of the Three Bears."*fn5 That is, the DOC has found some facilities too large, some too small, none just right.

More recently, as the DOC continued to explore its options, the level of opposition to any chosen locale was met with vociferous opposition. In May 2007, the DOC reconsidered its existing facilities and focused in particular on South Woods State Prison in Bridgeton, which was designated in 2003 as a location for the transition of inmates convicted of sex offenses. This proposal was met with an immediate objection from the Cumberland County Board of Chosen Freeholders. In a letter to the DOC Commissioner, the Freeholders indicated that they were "furious" the DOC was again considering placing the facility in Cumberland County, that in 2000 "our entire County was enraged that an ill-conceived plan was afoot to house sexual predators in Maurice River Township," and that seven years later, the County "once again targeted" Cumberland County for the placement of the facility at South Woods State Prison.

The DOC has also explored the possibility of privatizing the housing of SVPs. The record on appeal reveals that those efforts were initially clouded by litigation and have not since resulted in any concrete proposal.

In examining the record on appeal, we recognize the difficulties presented to the DOC when the SVPA was enacted. The SVPA mandated that the DOC house civilly-committed SVPs in facilities separate from those housing prison inmates. Locating a proper site that conforms with the objectives of the SVPA has proven to be no small task. However, the record strongly suggests that the most daunting obstacle may not be the adaptation of existing facilities or even the construction of new facilities, but identification of an appropriate location. Every serious proposal has been met with litigation or intense objections.

We have not the slightest doubt that the vast majority of this State's citizens strongly approve of the SVPA and the housing of civilly-committed SVPs where they may be treated until conditions exist for their release -- but not in their town. The lawsuit that gave rise to Executive Order 118, the lawsuit that followed regarding the plan to house SVPs in Woodbridge, and the great and constant outcry when the DOC gave serious consideration to placing the facility in Cumberland County, demonstrate the incontestable fact that there is no location within the State in which such a facility will be welcomed.

The DOC seems content to allow vocal opposition to be an insurmountable obstacle. We are convinced that if the location of a permanent facility depends upon the finding of a volunteer, it will be a very long wait. The record on appeal is certainly subject to interpretation about the intensity and vigor of the DOC's efforts, but the record does demonstrate beyond any doubt a number of things: the DOC has weighed a great many options in seeking a resolution of the problem; the DOC has encountered great local resistance in ascertaining a suitable place for the facility; and the DOC's efforts have borne no fruit. Although we have no cause to share the County's view that the DOC's efforts have been "token, superficial and half-hearted," there can be no dispute that those efforts have been ineffectual. Moreover, the record provides no assurance or even hope that the status quo will change if we simply resolve to leave Executive Order 118 in place, as the DOC urges.


Newton's First Law of Motion states that an object in motion tends to stay in motion and that an object at rest tends to stay at rest unless acted upon by a net external force.*fn6

Although the DOC has revealed and explained its response to the emergency that prompted Executive Order 118, it appears the opposing voice of the people in those locations initially deemed feasible has brought DOC's ventures in those areas to a rest. We are persuaded that were we to fail to exert our own external force, the matter will remain at rest for the indefinite future.

In the final analysis, the Disaster Control Act does not envision emergencies of indefinite duration. In Gloucester the Court contemplated the point at which gubernatorial action exceeds the authority permitted by the Disaster Control Act; when faced with a passage of time without effectual response similar to that which we consider here, the Gloucester Court held "[t]hat day has come." 132 N.J. at 149. Executive Order 118's time has also come. The DOC can no longer rely on the circumstances that generated Executive Order 118 as constituting an emergency within the meaning of the Disaster Control Act. Nearly nine years have passed since Governor Whitman issued the order. The circumstances have not changed, and nothing of substance has been accomplished during those nine years. It is now more than ten years since the Legislature enacted the SVPA, and no permanent home has yet been established for those who have been civilly committed.

Of course, we must recognize, as the Court recognized in Gloucester, that today's judgment "cannot be expected to cause an immediate change" in the circumstances, and "[s]ome considerable period of time for compliance must be given." 132 N.J. at 153 (quoting our opinion in the same case, 256 N.J. Super. at 152). We will allow one year from today for compliance with the judgment entered more than nine years ago that required the DOC's turnover of possession of the Kearny facility to the County of Hudson, and for the location of a temporary or permanent facility, or facilities, for the housing of SVPs in accordance with the terms of the SVPA.

Judgment in favor of appellants.

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