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B.M. v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2010

B.M., PETITIONER-APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT-RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 26, 2010

Before Judges Stern, Graves and Sabatino

The instant appeal concerns an imposition by the State Parole Board ("the Board") of special conditions on a person who has been convicted of a Megan's Law offense and who is thereby subject to community supervision for life under N.J.S.A. 2C:43- 6.4a. In particular, appellant B.M. challenges the Board's requirement that he undergo an annual polygraph examination pursuant to N.J.S.A. 30:4-123.88. Additionally, appellant challenges the Board's condition prohibiting him from creating any social networking profile or accessing any social networking site on the internet without the authorization of the District Parole Supervisor.

Appellant pled guilty in 1998 to second-degree sexual assault, N.J.S.A. 2C:14-2b. He was originally sentenced to four years incarceration at the Adult Diagnostic and Treatment Center at Avenel ("Avenel") and directed to comply with the requirements of Megan's Law. His sentence was later amended, consistent with Megan's Law, to include community supervision for life under N.J.S.A. 2C:43-6.4.

Appellant completed his sentence at Avenel and has been released, but under community supervision, since 2001. In 2003, appellant obtained his current job as an environmental consultant, which calls for him to travel out-of-state extensively. Before the disputes involved in this appeal arose, appellant routinely applied for, and received, travel passes from the Board, allowing his business travel outside of New Jersey, as well as travel for some out-of-state vacations.

In August 2009, appellant was notified that he would be subjected to both of the special conditions at issue in this case, i.e., the polygraph examination and the restrictions on internet access. The next month, appellant appealed the imposition of these conditions to the Board. In November 2009, the Board issued a final agency decision, upholding both conditions and directing appellant to appear for his scheduled polygraph examination.

Appellant then filed the instant appeal. Following an application for emergent relief that was reviewed by this court and by a single justice of the Supreme Court, we imposed a stay pending appeal, allowing appellant to continue to travel out of state for business purposes while the polygraph and internet access issues were litigated. The stay was grounded upon appellant's representation that he was in jeopardy of losing his employment if permission for such out-of-state travel were discontinued.

Appellant urges this court to find that the two special conditions are invalid, alleging that their imposition: (1) is arbitrary, capricious, and unreasonable, and offends notions of due process and fairness; and (2) violates appellant's rights in numerous respects under the federal and state Constitutions. Among other things, appellant contends that the Parole Board has unfairly exercised its authority and has singled him out arbitrarily, in the absence of appropriate codified standards.

With respect to the polygraph examination, appellant acknowledges that the pertinent statute, N.J.S.A. 30:4-123.88, authorizes the Board to impose an annual polygraph examination of certain sex offenders under parole supervision, "in order to obtain information necessary for risk management and treatment and to reduce the offender's denial mechanisms." Ibid. However, the administrative regulations adopted by the Board in 2008 to carry out that authority, N.J.A.C. 10A:71-6.11(b)21 and N.J.A.C. 10A:71-6.13, do not specify in much detail the standards, conditions, or procedures that govern such examinations. The Board apparently has created and utilized eight pages of internal procedures for administering such polygraphs, but those internal procedures have not been codified by the Board through formal administrative rulemaking subject to public notice and comment under the Administrative Procedure Act, N.J.S.A. 52:14B-4.

With respect to the internet access restrictions imposed on appellant, the Board has not adopted regulations specifically addressing such restrictions. Nor do there presently appear to be any general internal policies and procedures governing such access restrictions, or defining key terms such as a "social networking" site.

At oral argument, appellant's counsel confirmed that his challenge to the validity of the Board's action rests, at least in part, upon the rulemaking principles set forth by the Supreme Court in Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984), in addition to his constitutional and other substantive arguments. After verifying that this rulemaking issue was before us, we inquired of the parties whether they would consent to the dismissal of the appeal without prejudice, pending the promulgation of potential regulations by the Board that might narrow or sharpen the substantive issues.

Following oral argument, we were advised in a June 9, 2010 letter from the Deputy Attorney General that the Board does, in fact, intend to promulgate specific regulations addressing these subjects. In particular, the Board plans to publish proposed regulations on the internet access restrictions in the New Jersey Register in July 2010, and it further anticipates publishing proposed regulations on the polygraph examinations thereafter. The Board also agrees to continue to permit appellant to travel out of state for business while it is in the process of promulgating such regulations.

Appellant requests that we not dismiss the appeal but rather remand the matter to the Board to accommodate the rulemaking process while retaining our jurisdiction over the appeal. Appellant also seeks, in the interim, the reinstatement of his ability to secure permission to travel out of state for non-business reasons, as well as the suspension of any internet access restrictions.

We are mindful that, while both parties agree on the potential utility of prospective regulations and the wisdom of deferring judicial resolution of the constitutional and other substantive issues until these regulations are developed and adopted, the parties disagree as to whether we should retain appellate jurisdiction during that rulemaking process. Even so, we do not need the consent of the parties to enter a dismissal of the present appeal without prejudice and to await a potential new appeal after such regulations are adopted.

It may well be that the Board's rulemaking process will address, at least partially, a number of the procedural, definitional, and administrative concerns now being raised by appellant, and that the substantive issues in any new appeal may differ materially from the substantive issues in their current posture. Additionally, appellant's counsel has intimated to us in his letter that other parolees may also seek to challenge the Board's actions, depending on the contours of the regulations--a prospect that further weighs in favor of resolving any lingering or new disputes through one or more fresh appeals rather than through a future retooling of the present appeal. In either event, the right of appellant to pursue review is preserved for appropriate consideration, which we anticipate would be conducted on a far more developed record.

Given these circumstances, we dismiss the appeal without prejudice in anticipation of the rulemaking process. This process shall be completed, after appropriate notice and comment, no later than November 1, 2010. In the meantime, the Board shall continue to permit appellant to travel out of state for business purposes unless, of course, independent grounds to restrict such travel arise. Appellant preserves the right to file a new appeal challenging the Board's actions following the adoption of regulations, and to re-argue any or all of the substantive issues raised in the present appeal and also any new issues that may be implicated by the regulations. If such a timely new appeal is filed, the stay allowing appellant's outof-state business travel shall remain in effect, unless the court directs otherwise. We are unpersuaded that the other items of interim relief sought by appellant are necessary or warranted, given the relatively short interval of time we have set forth for rule promulgation.

Appeal dismissed, without prejudice, pending administrative rulemaking. Jurisdiction is not retained.

20100630

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