November 20, 2009
CHARLES WILLIAMS, APPELLANT,
COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 29, 2009
On Motion for Summary Disposition and Writ of Mandamus.
Before Judges Cuff and Waugh.
Charles Williams, an inmate at the Adult Diagnostic and Treatment Center (ADTC), appeals a denial by the Administrator of the Department of Corrections' (DOC) Inmate Remedy System (IRS) to investigate, stop and reverse DOC's transfer of inmates to the ADTC. The inmate alleges the transferred inmates are not eligible to be housed at the ADTC. He has filed a motion for summary reversal and a writ of mandamus. We summarily remand this matter to the Administrator with instructions to research the facts presented by the inmate and issue a detailed statement of reasons, including findings of fact and conclusions of law.
Williams is serving "a lawful sentence" at the ADTC, this State's correctional and treatment facility for convicted sex offenders, N.J.S.A. 2C:47-3(k). On May 28, 2009, Williams filed an IRS form alleging "personal knowledge" that DOC was transferring prisoners to the ADTC without following N.J.S.A. 2C:47-3(h), and contrary to the language and intent of N.J.S.A. 2C:47-3(d), and asking that DOC stop the improper transfers, remove those inmates, and conduct a review of all state prisoners currently housed at the ADTC who: (i) committed their offense subsequent to December 1, 1998 (the effective date of N.J.S. 2C:47-3(h)); (ii) were found to be compulsive and repetitive by the ADTC and the sentencing court; (iii) at the time of their transfer to the ADTC had more than seven years remaining either on their sentence or on a judicially or statutorily imposed mandatory minimum; (iv) at the time . . . continue to have more than seven years remaining on their sentence or a judicially or statutorily imposed mandatory minimum; and (v) were not evaluated prior to their transfer to determine if they were amenable to and willing to participate in, the sex offender treatment program, as per N.J.S. 2C:47-3(h)(2) or (3). Said review should include an assessment to determine if the state prisoner so transferred is amenable to and willing to participate in treatment.
"In New Jersey, we have a statutory scheme in place to provide treatment for certain sex offenders immediately upon conviction, so long as they meet the requirements of that statute." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 635 (App. Div.), certif. granted, ____ N.J. ____ (2009). That is:
Pursuant to N.J.S.A. 2C:47-1:
[w]henever a person is convicted of the offense of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping . . . the judge shall order [DOC] to complete a psychological examination of the offender . . . . The examination shall include a determination of whether the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was, a further determination of the offender's amenability to sex offender treatment and willingness to participate in such treatment.
If the court finds that these criteria are met, the defendant must be placed in the custody of the ADTC ["as provided in subsection h. of this section"]. N.J.S.A. 2C:47-3(b). N.J.S.A. 2C:47-3(h)(2) also allows a defendant to request a transfer to the ADTC on a biennial basis, at which point the State is required to provide an evaluation and entertain the request. [Id. at 635-36 (emphasis added).]
N.J.S.A. 2C:47-3(h)(1) prescribes that DOC "shall confine the offender to the [ADTC] as soon as practicable" after the court imposes a sentence of seven years or less. If the sentence is more than seven years or imposed pursuant to N.J.S.A. 2C:43-7.2, DOC "shall" confine the offender in a facility designated pursuant to N.J.S.A. 30:4-91.2,*fn1 and he or she can be transferred to the ADTC if (1) it is within five years of the expected release date or parole eligibility date, and (2) DOC determines, after psychological examination, that the offender is amenable to sex offender treatment and willing to participate in such treatment. N.J.S.A. 2C:47-3(h)(2) and (3).
However, N.J.S.A. 2C:47-3(d) provides that the "court shall impose sentence in accordance with chapters 43, 44 and 45 of this Title and not as provided in subsection b. of this section if it shall appear from the report of the examination made of the offender pursuant to section N.J.S.2C:47-1 that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior or that the offender is not amenable to sex offender treatment." (Emphasis added). Williams argues that the placement of the prisoners at issue in the ADTC violates this statute.
On June 1, 2009, the correctional facility staff simply responded to Williams' IRS form as follows: "Under Title 30, the Commissioner of the Department of Corrections may transfer inmates based upon the need of the Department." IRS Administrator Bernard Goodwin approved that response on June 2. On June 4, 2009, Williams filed an administrative appeal, and the Administrator, without any written comments, checked the box entitled "UPHELD" on June 9, 2009.
On August 3, 2009, the inmate filed a notice of appeal with this court, denominating it an "Action in Lieu of Prerogative Writ of Mandamus." On that same date, he moved for summary disposition.
Williams contends that this court can order mandamus relief because DOC acted beyond its discretion and statutory authority by transferring inmates, who were not eligible for specialized treatment under N.J.S.A. 2C:47-3(h), to the ADTC. In support of this appeal, Williams filed a certification asserting: (1) approximately 130 of the 680 inmates at the ADTC have never been found by the courts or DOC to be in need of or amenable to the ADTC's specialized sex offender treatment; (2) the recent overcrowding due to these improperly transferred inmates has forced the ADTC to close one of its two therapy community programs; (3) these inmates "are hostile" to the ADTC's treatment programs, creating a dangerous environment for staff and other inmates, including appellant; and (4) his membership on the ADTC's Inmate Resident Committee, an authorized liaison between the ADTC's residents and its administration, allowed him to participate in formal discussions about the problems caused by these inmates.
The Commissioner, like the Administrator below, does not deny the allegations. Instead, he argues that N.J.S.A. 30:4-91.1 gives DOC general authority to transfer any prisoner to "any institution" throughout the New Jersey prison system. N.J.S.A. 30:4-91.1 states:
When a person has been convicted of an offense against the State of New Jersey and has been committed for a term of imprisonment by a court to an institution defined in R.S. 30:1-7 [which list of long-term care facilities, institutions, and psychiatric facilities does not include the ADTC], and when it appears to the satisfaction of the Commissioner of Institutions and Agencies [a predecessor agency to DOC] that the inmate should be transferred to an institution or facility more appropriate for his needs and welfare or that of other inmates or for the security of the institution, the commissioner shall be authorized and empowered to designate the place of confinement to which the inmate shall be transferred to serve his sentence.
The Commissioner also claims that summary disposition is improper because appellant has not (1) provided proof of his assertions or (2) exhausted his administrative remedies.
Under the IRS, which is governed by N.J.A.C. 10A:1-1.4 to -4.9, "an 'Administrative Appeal' must be utilized and fully exhausted prior to an inmate filing any legal action regarding information requests, issues, concerns, complaints, or problems," N.J.A.C. 10A:1-4.4(d), and "the decision or finding of the Administrator . . . to the 'Administrative Appeal' is the final level of review and decision or finding of [DOC]," N.J.A.C. 10A:1-4.6(d). Thus, contrary to the Commissioner's claim, appellant has exhausted his administrative remedies and the Administrator's decision is final for purposes of appeal pursuant to Rule 2:2-3(a)(2). Ortiz v. N.J. Dep't of Corrs., 406 N.J. Super. 63, 67 (App. Div. 2009). Moreover, as supplemented,*fn2 the record contains specific facts that require investigation, fact-finding, and specific response. N.J.A.C. 10A:1-4.8(a)(9) and -4.9(a).
A motion for summary judgment disposition may be sought where the movant "shall demonstrate that the issues on appeal do not require further briefs or full record." R. 2:8-3. "The procedure is intended to provide a pre-transcript, pre-argument opportunity for the screening of those cases involving issues which are clear-cut or which demonstrate that the decision on appeal was patently in error." GE Capital Mortgage Servs., Inc. v. N.J. Title Ins. Co., 333 N.J. Super. 1, 5 (App. Div. 2000). Thus, the procedure is "reserved for appeals whose ultimate outcome is so clear" that nothing further is required. Ibid.
Summary disposition is not appropriate due to the novel legal issue raised by the inmate; that is, whether DOC's general transfer authority in N.J.S.A. 30:4-91.1 and -91.2 governs the transfer of prisoners to the ADTC even though they might not have been transferred under the specific authority of N.J.S.A. 2C:47-3, and the need for the facts asserted by the inmate to be specifically addressed by the Administrator.
N.J.A.C. 10A:1-4.8(a)(9) states that the IRS Coordinator "shall be responsible for . . . [d]istributing the 'Routine Inmate Requests' . . . and 'Administrative Appeals' to appropriate correctional facility staff for research, investigation, referral, handling, and the rendering of a written decision or finding." (Emphasis added). N.J.A.C. 10A:1- 4.9(a) states that "[c]ertain correctional facility staff shall be assigned to conduct the research, investigation or referral of an issue presented by an inmate through the [IRS]." (Emphasis added).
The inmate's allegations require investigation and evaluation. We will not address this novel issue without factual development. To do otherwise requires us to render an advisory opinion which is not permitted. N.J. Ass'n for Retarded Citizens, Inc. v. N.J. Dep't of Human Servs., 89 N.J. 234, 241 (1982).
Rule 2:8-3(b) allows this court to "take such other action . . . as it deems appropriate." We, therefore, summarily remand this matter to the Administrator with specific instructions research and investigate the matter and issue a detailed statement of reasons, including findings of fact and conclusions of law.