November 26, 2013
NEW JERSEY STATE PAROLE BOARD, Respondent. L.A., Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent. B.M., Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent. L.A., Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent. W.M., Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2013
On appeal from the New Jersey State Parole Board.
Joseph S. Murphy argued the cause for appellants.
Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the briefs; Lisa A. Puglisi, Assistant Attorney General, of counsel in A-2448-11T2; Mr. Josephson, on the briefs).
Before Judges Sabatino, Hayden, and Rothstadt.
Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as offenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). N.J.S.A. 2C:43-6.4. Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.
The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations. One of the appellants, L.A., also contests the Parole Board's imposition upon him of a Halloween curfew and an electronic monitoring condition.
For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.
We do not decide at this time the merits of appellants' constitutional attack upon the polygraph requirements. Instead, we refer that subject matter to the trial court for supplemental proceedings, pursuant to Rule 2:5-5(b), for the development of an appropriate record, including scientific or other expert proofs, and for fact-finding. Such proofs and fact-finding shall focus upon the alleged therapeutic, rehabilitative, and risk management benefits of polygraph testing when it is conducted within the specific context of post-release oversight of sex offenders.
Lastly, we uphold the Parole Board's actions concerning the Halloween curfew, and dismiss as moot the claims concerning L.A.'s electronic monitoring, which has ended.
The circumstances of each appellant are substantially the same. Each has been convicted of a sexual offense, has served his sentence, and is now under supervision by the Parole Board. Each objected to certain restrictions the Parole Board imposed upon him, arguing that those restrictions violated his constitutional rights. And, in each instance, the Parole Board has denied the offender's constitutional claims in a written final agency decision without conducting a plenary evidentiary hearing.
B.M. pled guilty in March 1988 to one count of second-degree sexual assault upon his daughter, N.J.S.A. 2C:14-2b. He was sentenced to a four-year prison term and ordered to comply with post-release registration and notification requirements pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -6 and N.J.S.A. 2C:7-6 to -11. His sentence was amended to include a CSL term effective upon his release, pursuant to the Violent Predator Incapacitation Act of 1994, N.J.S.A. 2C:43-6.4.
B.M. was released from prison in March 2001. At that time, he received a notice from the Parole Board enumerating the specific conditions being imposed upon him as a CSL parolee. B.M. signed an acknowledgement of those conditions. At some point following his release, B.M. obtained employment as an environmental consultant. His work has frequently involved travel outside of New Jersey.
In July 2009, the Parole Board asked B.M. to submit to a polygraph examination. The request was based on the Parole Board's asserted need to monitor B.M.'s compliance with the conditions of his CSL supervision while on his out-of-state trips. B.M. objected to the polygraph testing, claiming that it violated his constitutional rights. The Parole Board advised B.M. that he would no longer be allowed to travel out-of-state if he refused to take the polygraph, despite the fact that the Parole Board had previously approved his out-of-state travel since 2003. The Parole Board also advised B.M. that he would not be allowed to use a computer to access social networking sites without the approval of a parole supervisor.
B.M. filed an administrative appeal of the polygraph and Internet restrictions, which the Parole Board denied in November 2009. He then appealed that ruling to this court. While that initial appeal was pending, B.M. applied for an emergent stay of the restrictions. After the Supreme Court issued an order directing this court to consider the merits of that emergent application, we granted a stay of the Parole Board's restrictions on B.M.'s interstate travel, pending the appeal.
On June 30, 2010, we issued an unpublished opinion in B.M.'s first appeal, directing the Parole Board to administratively adopt regulations that more fully addressed, after public notice and comment, the standards, conditions, and procedures governing the Parole Board's use of polygraph testing and Internet access restrictions. B.M. v. N.J. State Parole Bd., No. A-2599-09 (App. Div. June 30, 2010); see also Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984) (requiring administrative rulemaking for the promulgation of an agency's general standards and procedures). As part of that decision, we directed the Parole Board to continue to allow B.M. to travel out-of-state for business purposes unless "independent grounds" to restrict such travel arose. B.M. v. N.J. State Parole Bd., supra, slip op. at 7. Our opinion did not reach the merits of B.M.'s constitutional challenges, in anticipation that the forthcoming regulations might bear on these constitutional arguments. Id. at 6-8.
Subsequently, as discussed in Parts II and III of this opinion, infra, the Parole Board adopted regulations detailing the Internet usage restrictions for PSL and CSL offenders, as well as supplemental regulations about the polygraph testing of such individuals. B.M. then filed his present second appeal (A-2138-11) reiterating his constitutional objections to both the polygraph testing and Internet restrictions.
In April 2002, J.B. pled guilty to one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a, his stepson. He was sentenced to a three-year custodial term and ordered to comply with Megan's Law, N.J.S.A. 2C:7-1 to -23. J.B. was also ordered to comply with CSL monitoring upon his release, N.J.S.A. 2C:43-6.4.
J.B. was released after completing his sentence,  and in February 2008, the Parole Board notified him of the polygraph condition.
Thereafter, in September 2010, the Parole Board required J.B. to submit to a polygraph examination to monitor his compliance with CSL conditions. Like B.M., J.B. objected to the polygraph testing, contending that it violated his constitutional protections. He filed an administrative appeal, which the Parole Board rejected in a May 25, 2011 final agency decision. J.B. then filed this present appeal (A-5435-10).
W.M. pled guilty in April 1996 to five counts of second-degree aggravated sexual assault, N.J.S.A. 2C:14-2b, for molesting five young female music students in their homes. He was sentenced to concurrent five-year terms at the Adult Diagnostic Center at Avenel, and was required to comply with certain provisions in Megan's Law. W.M. was released from custody in August 1999. His judgment of conviction was amended in 2000 to include a CSL provision.
In January 2008, the Parole Board notified W.M. that he was prohibited from accessing social networking websites as a condition of his supervision. Additionally, in October 2008, W.M. was advised that he was subject to polygraph testing. In September 2011, W.M. was referred for a polygraph examination, which he declined to take.
Invoking similar constitutional claims as the other appellants, W.M. pursued an administrative appeal contesting the polygraph and Internet access restrictions. On January 25, 2012, the Parole Board denied W.M.'s request for relief. He then filed his present appeal (A-3256-11). In June 2012, the Supreme Court granted W.M. a stay of the polygraph examination and Internet restriction pending appeal.
In May 2007, L.A. pled guilty to second-degree attempted sexual assault of a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c(4), after having sexually explicit online conversations with an undercover police officer posing as a boy and then later attempting to meet with the putative youth at a mall. At the time of this offense in 2005, L.A. was in his sixties.
L.A. was sentenced to a three-year prison term. He was also made to comply with PSL conditions, N.J.A.C. 10A:71-6.12, as well as other Megan's Law requirements. L.A. thereafter completed his prison sentence and was released.
In September 2011, L.A. was told by his parole officer that he had to take a polygraph examination. L.A. objected to the testing on the grounds of improper notice and constitutional defects. He filed an administrative challenge to the testing, which the Parole Board rejected in an October 26, 2011 final agency decision. L.A. then appealed that determination to this court (A-1459-11).
In his second appeal that is also before us (A-2448-11), L.A. challenges the Parole Board's imposition of both a Halloween curfew and an electronic monitoring condition. The Halloween curfew, which the Parole Board imposed on L.A. in
October 2011, required that he remain in his home from 2:00 p.m. to midnight on that holiday. L.A. requested permission from the Parole Board to attend two business meetings on Halloween, but his parole officer only granted him permission to attend the day meeting and not the evening meeting. Nevertheless, in violation of the curfew, L.A. went to a shopping mall where he was observed by his parole officer and then sent home.
As a sanction for L.A.'s non-compliance with the Halloween curfew, the Parole Board required him to participate in electronic monitoring. The electronic monitoring included a curfew of twenty hours per day for up to 180 days.
L.A. contested both the Halloween curfew and the electronic monitoring conditions before the Parole Board. In a November 30, 2011 final agency decision, the Parole Board upheld both conditions. L.A. has since completed the electronic monitoring. Nevertheless, he continues to press on appeal his challenges to the Halloween curfew and the electronic monitoring requirement.
We first consider B.M.'s and W.M.'s arguments that the Parole Board had violated, and continues to violate, their constitutional rights by denying them access to social media websites on the Internet. In particular, appellants contend that these Internet restrictions infringe their rights of free speech and association under the First Amendment of the United States Constitution, their rights under the Due Process Clause, and their corresponding rights under the New Jersey Constitution. Appellants further claim that the Internet restrictions were imposed without statutory authorization and compliance with the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-4. For the reasons that follow, we reject these facial challenges.
Appellants' constitutional claims must be examined in the context of their distinctive status as sex offenders who have been released into the community after serving their custodial sentences, and who are now under the Parole Board's continued supervision through CSL or PSL.
"Community supervision for life was 'designed to protect the public from recidivism by defendants convicted of serious sexual offenses.'" Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008) (quoting Sanchez v. N.J. State Parole Bd., 368 N.J.Super. 181, 184 (App. Div.), certif. granted, 182 N.J. 140 (2004), appeal dismissed, 187 N.J. 487 (2006)). As the Supreme Court has recognized, unfortunately, "the relative recidivism rate of sex offenders is high compared to other offenders; treatment success of sex offenders exhibiting repetitive and compulsive characteristics is low; and the time span between the initial offense and re-offense can be long." Doe v. Poritz, 142 N.J. 1, 15 n.1 (1995).
Given these special characteristics of sex offenders, the Legislature established CSL in 1994 as part of the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4. The statute is one component of a series of laws that are collectively referred to as Megan's Law, N.J.S.A. 2C:7-1 to -23. See also L. 1994, c. 130. Persons who have been convicted between 1994 and 2004 of certain sexual offenses enumerated within N.J.S.A. 2C:43-6.4(a) must serve, in addition to any existing sentence, "a special sentence" of "community supervision for life, " and those convicted after that time are sentenced to "parole supervision for life." N.J.S.A. 2C:43-6.4(a); see also L. 2003, c. 267, § 1. This CSL or PSL term follows immediately after the parolee's release from incarceration, if applicable, and includes specified conditions by which he or she must abide. N.J.S.A. 2C:43-6.4(b). The stated purpose of these conditions is "to protect the public and foster rehabilitation." Ibid. Such offenders are supervised by the Division of Parole of the State Parole Board "as if on parole" and may be subject to "conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b); N.J.A.C. 10A:71-6.11.
As the United States Supreme Court has recognized convicted persons whether they have been found guilty of sexual offenses or other crimes are generally subject to a constitutionally-permissible degree of continued governmental oversight and diminished personal autonomy when they are on parole or some other form of post-release supervision "Rather than being an ad hoc exercise of clemency parole is an established variation on imprisonment of convicted criminals" Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484, 492 (1972) "Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able without being confined for the full term of the sentence imposed" Ibid To accomplish this objective parolees are typically subjected to "conditions [that] restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen" Id. at 478, 92 S.Ct. at 2598 33 L.Ed.2d at 492
For instance parolees must commonly "seek permission from their parole officers before engaging in specified activities such as changing employment or living quarters marrying acquiring or operating a motor vehicle traveling outside the community and incurring substantial indebtedness" Ibid. Parolees must also regularly report to their assigned parole officer. Id. at 478, 92 S.Ct. at 2598-99, 33 L.Ed.2d at 492. Subject to procedural fairness and other recognized limitations, the State has a strong interest in assuring that parolees adhere to the conditions of their parole. Id. at 480-84, 92 S.Ct. at 2600-02, 33 L.Ed.2d at 493-97. Where it is advised, the revocation of parole "deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty [that is] properly dependent on observance of special parole restrictions." Id. at 480, 92 S.Ct. at 2600, 33 L.Ed.2d at 494.
The New Jersey Supreme Court in Jamgochian, supra, 196 N.J. at 222, extended these general principles of limited liberties in the parole context to sexual offenders sentenced to post-release CSL terms. In that case, the Court declared that a convicted sex offender under CSL could be made subject to restrictions on his liberty, such as an evening curfew, provided that the Parole Board afforded him with constitutional due process protections of notice and an opportunity to object to the curfew restriction. Ibid. Such a person's special status as a CSL offender did not entitle him to the "full panoply of rights" available to a citizen in a criminal trial. Id. at 242.
That said, the Court explained in Jamgochian that such an individual was nonetheless constitutionally protected from "arbitrary government action." Id. at 241-42. The Court cautioned that, in this context, due process and procedural fairness must be applied flexibly, for the Constitution does not "mandate a regime that will make it impractical to impose a necessary curfew provision to protect the public or rehabilitate the offender." Id. at 246. Moreover, "[d]iscretion must be invested in the Parole Board, which has the agency expertise and authority to implement a scheme that can address the unique circumstances of each case." Id. at 250. Even so, on the record before it, the Court in Jamgochian concluded that the Parole Board had deprived the appellant of a fair opportunity to contest both (1) the Parole Board's claim that he engaged in inappropriate conduct that signaled a prelude to recidivism, and (2) the Parole Board's rationale underlying its decision to impose a curfew. The Court prospectively directed that such procedural safeguards must be afforded in future cases to sex offenders on CSL. Id. at 250-51.
We also must be mindful of the importance of an individual's freedom of speech and association under the First Amendment of the United States Constitution and Article I, Paragraphs 6 and 18 of the New Jersey Constitution. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (delineating First Amendment principles); State v. Schmid, 84 N.J. 535 (1980) (delineating cognate principles under the State Constitution). We are particularly mindful that our State Constitution's free speech provisions have, at times, been interpreted more broadly than their federal counterparts. See, e.g., N.J. Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994); Schmid, supra, 84 N.J. at 535. "[T]he State Constitution furnishes to individuals the complementary freedoms of speech and assembly and protects the reasonable exercise of those rights." Schmid, supra, 84 N.J. at 560. As such, the State Constitution "serves to thwart inhibitory actions which unreasonably frustrate, infringe, or obstruct the expressional and associational rights of individuals." Ibid.
Against this backdrop of competing State and individual interests, we examine the Internet restrictions that appellants B.M. and W.M. have challenged in this case.
In 2007, the Legislature amended N.J.S.A. 2C:43-6.4 to add a provision limiting Internet access for sexual offenders serving a CSL sentence, effective February 25, 2008. N.J.S.A. 2C:43-6.4(f); see also L. 2007, c. 219. The statute specified that these conditions could include prohibiting the use of a computer without prior written approval, requiring the offender to submit to periodic unannounced examinations of his or her computer, requiring the offender to install a monitoring device on his or her computer, and requiring the offender to "disclose all passwords used by the person to access any data, information, image, program, signal or file." N.J.S.A. 2C:43-6.4(f)(1) to (5).
In our 2010 unpublished opinion in B.M., supra, we noted that, in addition to the absence of adequate regulations governing the Parole Board's administration of polygraph examinations, the agency also had not adopted regulations specifically addressing Internet access restrictions. B.M. v. N.J. State Parole Bd., supra, slip op. at 4-6. Among other things, we observed that there did not appear to be any general internal policies or procedures governing those restrictions, or defining key terms such as "social networking" site. Ibid.
Consequently, on September 29, 2010, the Parole Board adopted new regulations detailing restrictions it could impose on an offender's Internet usage. N.J.A.C. 10A:71-6.11(b)(22); 42 N.J.R. 2960(a). It did not receive any public comments when these new rules were proposed. 42 N.J.R. 2960(a). The new conditions clearly specified that an offender may be subject to Internet restrictions "to access any social networking service or chat room in the offender's home or with any other name for any reason unless expressly authorized by the district parole supervisor." N.J.A.C. 10A:71-6.11(b)(22).
On January 3, 2012, the Parole Board issued proposals for further amendments to these conditions, "provid[ing] for a definition of social networking service, Internet website or application, chat room and peer-to-peer network." 44 N.J.R. 30(a). In response to that proposal, the Chief Executive Officer of the New Jersey Association of Mental Health and Addiction Agencies, Debra L. Wentz, Ph.D., submitted a comment raising a concern that the proposed restrictions may undesirably impede an offender's rehabilitation efforts. Her comment pointed out that "social media has expanded beyond simply 'socializing' and is becoming an important tool for people in early recovery to network, access emotional support, and gain access to needed services." 44 N.J.R. 1530(a). The Parole Board replied that if a treatment provider believed that accessing social media was conducive to the offender's recovery, "there already exists a mechanism for the matter to be reviewed." Ibid. N.J.A.C. 10A:71-6.6(b), it elaborated, permitted an offender to apply to the Parole Board for a modification of a condition of supervision. Ibid. Consequently, on March 28, 2012, the Board adopted the additional proposals on Internet restrictions without modification.
B.M. and W.M. now challenge these Internet restrictions. They maintain that the restrictions are overbroad and unduly deprive them access to information, news, business opportunities, and other benign avenues of expression on the Internet. They contend that the Internet has become an increasingly pervasive and vital part of modern life, and that this inability to participate in such everyday communications represents an unconstitutional infringement upon their liberties. Appellants further contend that the Parole Board's regulations do not afford them adequate notice and procedural protections, lest they visit an unauthorized Internet site in error and potentially risk further sanctions and losses of liberty. Lastly, they contend that the Internet regulations do not comport with the procedural standards of the APA.
The Parole Board, in turn, asserts that the Internet restrictions are reasonable measures to assure that sexual offenders serving CSL sentences do not engage in inappropriate interactions with youths or other potential victims, and that, accordingly, public safety justifies such restrictions. It further points out that the regulations contain an explicit process in N.J.A.C. 10A:1-6.11 for an offender serving a PSL or CSL sentence to seek permission from a parole official to gain access to a particular site for work or other reasonable purpose. The Parole Board contends that offenders must exhaust such administrative remedies before requesting this court to strike down the restriction on its face.
The manifest objective of the Internet restrictions in the authorizing statute and the Parole Board's regulations is not to eliminate the ability of released offenders on PSL or CSL to access the Internet in its entirety. Instead, the provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior.
We recognize that websites such as Facebook and LinkedIn have developed a variety of uses apart from interactive communications with third parties. Even so, the Parole Board has reasonably attempted to draw the line of permitted access in a fair manner that balances the important public safety interests at stake with the offenders' interests in free expression and association. As the Deputy Attorney General acknowledged at oral argument, it is not the Parole Board's intention that these provisions bar appellants from having Internet access to news, entertainment, and commercial transactions.
Significantly, courts in other jurisdictions have upheld comparable Internet usage restrictions for released sex offenders, often subject to the directives of their parole officers. For example, the United States Court of Appeals for the District of Columbia Circuit upheld a tailored Internet usage restriction for the probationer there, a convicted sex offender with a history of soliciting sex from minors and trading child pornography. United States v. Love, 593 F.3d 1, 11-13 (D.C. Cir. 2010). Like appellants here, the probationer in Love argued that the Internet usage restriction was excessive, "in light of the near ubiquity of the Internet in everyday life." Id. at 11. The court rejected that claim, deferring to the probation board's determination that the restriction was appropriate in light of the nature of the appellant's crimes. Id. at 11-12. Although recognizing that the Internet restriction would "no doubt" substantially affect the appellant's day-to-day activities, the court noted, however, that it would also appropriately prevent him from using the Internet to trade child pornography. Ibid. All of these factors must be considered together, the court explained, and in doing so, it held that the probation board's decision was reasonable. Id. at 12-13.
In a similar vein in United States v. Crandon, 173 F.3d 122 (3d Cir. 1999), the Third Circuit Court of Appeals upheld as constitutional an Internet usage restriction as a condition of the defendant's supervised release. There, the defendant had used the Internet as a means to develop a sexual relationship with a young girl over a period of several months. Id. at 127. The defendant objected to the condition, arguing that it unnecessarily infringed upon his liberty interests and bore no logical relation to his offense. Ibid. The Court of Appeals rejected this argument, noting the reasonableness of the restriction in light of the defendant's sexual history. Ibid. Finding no violation of the defendant's constitutional rights, the court affirmed the Internet usage restriction. Ibid.
Guided in part by the weight of authority from other jurisdictions, we are satisfied that the Internet restrictions adopted here by the Parole Board have been constitutionally tailored to attempt to strike a fair balance. Hence, we reject appellants' arguments to strike them down on their face. We instead uphold the regulations as valid under both the First Amendment and the New Jersey Constitution, subject to the right of appellants or other offenders who are subject to a CSL or PSL condition to pursue permission from a parole official to gain access to a specified website for a benign purpose.
We do not presume in the abstract that the Parole Board and individual parole officers will respond to such requests rigidly or unfairly, or that it will ignore an offender's individual circumstances. Instead, this procedural avenue should be exhausted first, subject to the right of an offender to bring a future as-applied constitutional challenge if necessary.
"Facial invalidation 'is, manifestly, strong medicine' that 'has been employed by the Court sparingly and only as a last resort.'" Binkowski v. State, 322 N.J.Super. 359, 375-76 (App. Div. 1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916-17, 37 L.Ed.2d 830, 841-42 (1973)). In keeping with such a cautious approach, "[e]ven in a First Amendment case, federal courts are admonished not 'to anticipate a question of constitutional law in advance of the necessity of deciding it, . . . [or] to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Id. at 373 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394, 404 (1985)); see also Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 1191, 170 L.Ed.2d 151, 161 (2008) ("Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of 'premature interpretation of statutes on the basis of factually barebones records.'" (quoting Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 1948, 158 L.Ed.2d 891, 900 (2004))).
Thus, courts at times will sensibly decline to strike down a law or regulation on its face, and instead reserve claims of unconstitutionality for future as-applied litigation. See, e.g., Doe v. Reed, __ U.S. __, 130 S.Ct. 2811, 177 L.Ed. 2D 493 (2010) (holding that disclosure of the identity of persons signing petitions in support of ballot referenda does not facially violate the First Amendment, but leaving open the possibility of an as-applied challenge if it could be shown that such disclosure would expose those who had signed petitions to harm); Washington State Grange, supra, 552 U.S. at 457-58, 128 S.Ct. at 1195, 170 L.Ed.2d at 165 (declining to declare a new election process facially invalid because the challengers' arguments were based on "factual assumptions about voter confusion, " and noting that such a "factual determination must await an as-applied challenge"). A similar approach is warranted here.
We also reject appellants' claims that the Internet access restrictions are procedurally flawed or do not comport with APA standards. As we directed in B.M., supra, the regulations were adopted through public notice and comment. In fact, none of the present appellants or their common attorney presented any objecting comments to the proposed Internet regulations before their promulgation, although we recognize that they were not obligated to do so. On an individual level, it is also procedurally significant that appellants received advance notice that they would be subject to the Internet restrictions.
In addition, we find no violation of due process principles, as the Internet restrictions are reasonably crafted on their face to promote important State interests. See Jamgochian, supra, 196 N.J. at 239-40 (explicating due process principles under the Due Process Clause and Article I, Paragraph 1 of the New Jersey Constitution).
In sum, we hold the Internet restrictions to be constitutional on their face, and that they do not otherwise violate the law.
We next turn, albeit in a non-dispositive manner, to appellants' contentions that the Parole Board's administration of polygraph examinations to them, without their consent, violates their rights of privacy and other constitutionally-protected interests.
For decades our courts have declared polygraph results to be unreliable proof that must be excluded as evidence unless there is a mutual stipulation from the parties agreeing to admit such proof See, e.g., State v. A.O., 198 N.J. 69, 83 (2009); State v. Domicz, 188 N.J. 285, 312-13 (2006); State v. McDavitt, 62, N.J. 36, 43 (1972); State v. Driver, 38 N.J. 255, 261 (1962). As part of that unbroken line of precedent the Supreme Court explained in McDavitt in 1972 that "[t]o date lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception" McDavitt, supra, 62 N.J. at 44. In 2006 the Court reiterated the polygraph's scientific unreliability and inaccuracy in Domicz observing that "[i]n the more than thirty years since McDavitt, serious questions about the reliability of polygraph evidence remain" Domicz, supra, 188 N.J. at 313.
Most recently in A.O., the Court repeated these well-settled principles in holding that polygraph evidence generated after a stipulation entered into between the State and a criminal suspect without the involvement of the suspect's defense counsel is inadmissible at trial A.O., supra 198N.J.at 90 Among other things the Court referred again to the scientific literature that raise doubts about the reliability and accuracy of polygraph results. Id. at 83-84; see also United States v. Scheffer, 523 U.S. 303, 309-12, 118 S.Ct. 1261, 1265-66, 140 L.Ed.2d 413, 419-21 (1998). As of the time of the Court's opinion in A.O., twenty-eight states had banned the admission of polygraph evidence outright. A.O., supra, 198 N.J. at 84. The Court also noted that "[v]irtually all the other states" that have considered the issue "limit the admission of polygraph evidence to cases where both parties stipulate to its use." Id. at 85. As the Court in A.O. unambiguously declared, "[t]his Court has not sanctioned and does not now entertain the admission of polygraph results." Id. at 86.
Despite this long-standing precedent holding non-stipulated polygraph results inadmissible in our courts, the Legislature adopted the following provision in 2006 authorizing polygraph testing of offenders who are subject to PSL or CSL. This statute is part of a larger set of provisions addressing the post-release supervision of persons convicted of certain sexual offenses:
The State Parole Board, on at least an annual basis, may administer to all offenders serving a special sentence of community or parole supervision for life, imposed pursuant to section 2 of P.L. 1994, c. 130 ([N.J.S.A.] 2C:43-6.4), polygraph examinations in order to obtain information necessary for risk management and treatment and to reduce the offender's denial mechanisms. A polygraph examination shall be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, and shall be paid for by the offender. The results of the polygraph examination shall not be used as evidence in court to prove that a violation of the special sentence of community or parole supervision for life or condition of discharge has occurred.
[N.J.S.A. 30:4-123.88 (emphasis added).]
In connection with this polygraph initiative and the related provisions allowing electronic monitoring and other restrictions, the Legislature articulated the following general purposes to improve, with the aid of technology, the post-release monitoring of sex offenders:
a. Offenders who commit serious and violent sex crimes have demonstrated high recidivism rates and, according to some studies, are four to five times more likely to commit a new sex offense than those without such prior convictions, thereby posing an unacceptable level of risk to the community.
b. Intensive supervision of serious and violent sex offenders is a crucial element in both the rehabilitation of the released inmate and the safety of the surrounding community.
c. Technological solutions currently exist to provide improved supervision and behavioral control of sex offenders following their release.
d. These solutions also provide law enforcement and correctional professionals with new tools for electronic correlation of the constantly updated geographic location of supervised sex offenders following their release with the geographic location of reported crimes, to possibly link released offenders to crimes or to exclude them from ongoing criminal investigations.
e. Continuous 24 hours per day, seven days per week, monitoring is a valuable and reasonable requirement for those offenders who are determined to be a high risk to reoffend, were previously committed as sexually violent predators and conditionally discharged, or received or are serving a special sentence of community or parole supervision for life. A program to monitor these sex offenders should be established.
[L. 2007, c. 128 (emphasis added); see also N.J.S.A. 30:4-123.90.]
The Parole Board then undertook to develop procedures and regulations to implement the polygraph testing authorized in N.J.S.A. 30:4-123.88. See N.J.A.C. 10A:71-6.11(b)(21); N.J.A.C. 10A:72-6.13; N.J.A.C. 10A:72-3.1 to -3.10.
At least one of the comments submitted to the Parole Board concerning the initial set of proposed polygraph regulations questioned the reliability and utility of the device. In particular, a Deputy Public Defender advanced the following objection, which was summarized by the Parole Board in the New Jersey Register:
The section requiring convicted sex offenders to submit to an annual polygraph examination at their expense is both unfair and an extremely unreliable tool. The fact that the section (N.J.A.C. 10A:71-6.13(b)) provides for a polygrapher specially trained in the use of the polygraph for monitoring of sex offenders highlights this proposition. If the polygraph examination was a reliable tool for determining deception, any qualified polygrapher would be equally capable of determining deception, whether the issue was taking money from a bank or continued interest in deviant sex. The commenter viewed the proposed new rule as just another step to make the lives of sex offenders in this State unbearable with no public benefit.
[40 N.J.R. 3726(b) (emphasis added).]
In response to that comment, the Board rested upon the Legislature's own findings:
New rule N.J.A.C. 10A:71-6.13 (Polygraph examinations) codified N.J.S.A. 30:4-123.88, which was enacted effective August 11, 2005. As the language of the new rule is the same as the statutory language, the State Parole Board elected to adopt N.J.A.C. 10A:71-6.13 as proposed.
Because certain provisions in the proposed regulations, as initially drafted, seemed to incorrectly mandate that the Parole Board administer polygraph examinations on an annual basis to all sex offenders, the Parole Board subsequently issued a rule amendment, consistent with N.J.S.A. 30:4-123.88, to clarify the discretionary nature of its polygraph testing and to make it plain that the testing is not a universal or annual requirement. N.J.A.C. 10A:71-6.11(b)(21). Accordingly, the Parole Board amended the proposed text of N.J.A.C. 10A:71-6.11(b)(21) in April 2008 to make that clarification.
Subsequently, as we have already noted, supra, B.M. challenged the validity of the Parole Board's practices in administering these polygraphs. In our May 2010 opinion, we did not address the merits of B.M.'s constitutional arguments, but instead directed the Parole Board to undertake additional rulemaking to codify its internal practices. B.M. v. N.J. State Parole Bd., supra, slip op. at 6-8; see also Metromedia, supra, 97 N.J. at 313.
Consequently, on January 18, 2011, the Parole Board proposed additional polygraph regulations, in an effort to address the rulemaking deficiencies identified in our May 2010 opinion. 43 N.J.R. 121(a). The bulk of those rule amendments, which were adopted in July 2011, are now reflected in N.J.A.C. 10A:72-3.1 to -3.10.
During the public comment process concerning these proposed clarifying rules, two representatives of the Office of the Public Defender, Special Hearing Unit, as well as a group of individual offenders (none of whom are parties to the five related appeals presently before this court) submitted objections to the Parole Board. The objectors criticized the proposed new provisions on a variety of constitutional grounds, all of which are now before us in the current appeals. As the Parole Board summarized those objections:
The comments submitted by the group of offenders related to their concern that polygraph examinations have been found to be unreliable; that based on a process found to be unreliable an offender may be subject to a course of action that would result in the loss of liberty; that an offender would be forced to give up his right to remain silent; and that as parole is part of the criminal process an offender's submission for a polygraph examination would violate his right to be represented by counsel.
[43 N.J.R. 3087(a) (emphasis added).]
The Parole Board rejected all of the objectors' claims of unconstitutionality in its published response. Ibid. Except for certain amendments to the notice requirements in N.J.A.C. 10A:72-3.5, the Parole Board adopted the newest rules in otherwise substantively-unchanged form on July 27, 2011, effective November 21, 2011. Ibid.; see generally N.J.A.C. 10A:72-3.1 to -3.10. These newest regulations implemented the more general authorization set forth in N.J.A.C. 10A:71-6.13. That regulation, in turn, tracked the enabling statute, N.J.S.A. 30:4-123.88, almost verbatim, and read:
(a) Pursuant to N.J.S.A. 30:4-123.88, the Board, on at least an annual basis, may administer to all offenders serving a special sentence of community or parole supervision for life, imposed pursuant to N.J.S.A. 2C:43-6.4, polygraph examinations in order to obtain information necessary for risk management and treatment and to reduce the offender's denial mechanisms.
(b) A polygraph examination shall be conducted by a polygrapher trained specifically in the use of the polygraph for monitoring of sex offenders, where available, and shall be paid for by the offender.
(c) The results of the polygraph examination shall not be used as evidence in court to prove that a violation of the special sentence of community or parole supervision for life or condition of discharge pursuant to N.J.S.A. 30:4-27.36 has occurred.
[N.J.A.C. 10A:71-6.13 (emphasis added).]
Although we need not detail here all of the features of the polygraph regulations, a few major aspects are worth noting. The regulations describe three types of polygraphs: an "instant offense examination, " a "periodic maintenance examination, " and a "sexual history examination." N.J.A.C. 10A:72-3.3(a) to (c). An instant offense examination is described as follows:
An instant offense examination may be administered when either an offender denies guilt regarding the commitment offense or an offender's version of the commitment offense differs significantly from the official version of the commitment offense as noted in the pre-sentence report.
[N.J.A.C. 10A:72-3.3(a) (emphasis added).]
By comparison, a periodic maintenance examination, which appears to be much broader in scope, is described this way:
A periodic maintenance examination may be administered to verify the activities, behavior and truthfulness of an offender as related to compliance with the conditions of supervision.
[N.J.A.C. 10A:72-3.3(b) (emphasis added).]
Lastly, the regulations describe the third kind of test, a sexual history examination in this manner:
A sexual history examination may be administered to obtain comprehensive information regarding an offender's sexual interests and behaviors in order to identify the offender's predilections and to assist in case planning and treatment objectives.
The decision on whether any of these kinds of polygraphs should be administered to a particular offender serving a PSL or CSL sentence is initially considered by the individual's assigned parole officer. The parole officer is to be guided by the following standards:
The assigned parole officer shall review the offender's case with an Assistant District Supervisor, District Parole Supervisor, or Supervising Parole Officer for consideration of a polygraph examination, if the assigned parole officer has a reasonable belief that an offender is non-complaint with a condition(s) of supervision; if an offender denies guilt regarding the commitment offense; or if an offender's treatment provider believes that the administration of a polygraph examination would assist in the treatment or supervision of the offender. In addition, the reviewing supervisor must determine that there is a need to obtain and verify information regarding an offender's behaviors and sexual interests.
[N.J.A.C. 10A:72-3.4(a) (emphasis added).]
The ultimate decision to administer a polygraph must be made by a supervisor. N.J.A.C. 10A:72-3.4(b). If a polygraph is ordered, the offenders are supplied with thirty days' advance notice of the procedure, N.J.A.C. 10A:72-3.5, and are presented with a disclosure form detailing the terms of the polygraph, N.J.A.C. 10A:73-3.6(a), including notification that "the results" of the examination "shall not be used as evidence in court to prove that a violation of the [terms of PSL or CSL] or condition of discharge has occurred, " N.J.A.C. 10A:72-3.6(b)(6). Failure to submit to a polygraph, absent good cause, is a fourth-degree crime. N.J.S.A. 2C:43-6.4(d).
The polygraph session consists of a pre-examination interview, the examination itself, and a post-examination interview. N.J.A.C. 10A:72-3.7. During the post-examination interview, the examiner must review the test results with the offender, advise him or her of "any significant, deceptive or inconclusive response[s], " and provide him or her with a chance "to explain or resolve any significant, deceptive or inconclusive response[s]." N.J.A.C. 10A:72-3.7(h). The examiner is to immediately notify a supervisor or a supervisor's designee of "any significant findings, conclusions and/or admissions made during the polygraph." N.J.A.C. 10A:72-3.8(a). The supervisor or designee, in turn, must review the individual's case "with the assigned parole officer and/or treatment provider to determine a course of action." N.J.A.C. 10A:72-3.9(a). "[A]ny voluntary admission(s) made by the offender regarding unreported victim(s) or crime(s)" must be immediately reported to the appropriate law enforcement agencies NJAC 10A:72-39(b) The costs of the examination must be paid for by the offender NJAC 10A:72-310(a)
Appellants contend that these polygraph requirements on their face violate their constitutional rights under the First Fifth Sixth Ninth and Fourteenth Amendments of the United States Constitution as well as related principles in the New Jersey Constitution A key facet of their arguments is that non-consensual polygraphs which have been declared scientifically unreliable and generally inadmissible in judicial proceedings should not be used as a mechanical tool to delve into their innermost thoughts private activities and other allegedly protected aspects of their lives See Brewer, supra, 408 U.S. at 482, 92 S.Ct. at 2601, 33
L.Ed.2d at 495 (recognizing the "core values of unqualified liberty" preserved for parolees despite their otherwise-diminished constitutional protections); Poritz, supra, 142 N.J.at 77-78 88 (recognizing the diminished but still viable liberty and privacy interests of a released sex offender including his interests in not "exposing intimate details of [his] life like those laid bare to a psychiatrist") Appellants further contend that the Parole Board should not be allowed to rely upon the results of polygraph testing to impose any adverse actions upon them concerning the terms and conditions of their release and supervision, apart from the singular limitation expressed in N.J.S.A. 30:4-123.88 and in N.J.A.C. 10A:71-6.13(c) precluding the evidential use of polygraph results to prove violations of the terms of their PSL or CSL, or other terms of release.
The Parole Board contests all of these constitutional claims, as reflected in its written final agency decisions denying relief to each of the appellants. The Parole Board instead submits that the polygraph device, despite the drawbacks that make its results inadmissible in court proceedings, nevertheless has valuable uses in the context of the supervision of released sex offenders. In particular, the Parole Board represents that the use of polygraph testing causes sex offenders to confront their past wrongdoings more candidly. It further submits that the testing also produces more honest responses from offenders during interviews with their parole officers.
For many of the constitutional issues now raised before us,  a critical aspect to the analysis is the existence and strength of the State's interests in using polygraphs in this particular setting. In that regard, the Parole Board relies upon what the statute and regulations have variously described as "therapeutic, " "rehabilitative, " and "risk management" purposes. The Parole Board contends that these asserted purposes in overseeing released sex offenders are fundamentally distinct from the evidential purposes for which polygraphs have been deemed inadmissible in court proceedings.
Appellants dispute the bona fides of these asserted administrative purposes. They argue that the long-established scientific unreliability of polygraphs should likewise disallow the State's reliance on such testing in this context outside of a courtroom.
Appellants contend that significant decisions to restrict their liberties and activities, whether made by their individual parole officers or by other parole administrators, should not be influenced by information derived from scientifically-flawed polygraph tests. They maintain that the limitation set forth in the statute and regulations barring the evidential use of polygraph results to prove a PSL or CSL "violation" by an offender is woefully inadequate to protect them from other misuses of those results. Appellants further emphasize that, despite their counsel's informal requests to obtain more information from the Parole Board about the testing, the Parole Board has not produced any valid evidence that the alleged therapeutic, rehabilitative, or risk management benefits of polygraphs in this setting are real, or are at least significant enough to outweigh their individual constitutional rights.
The present record in these appeals is inadequate for this court to assess the parties' competing and momentous claims about the polygraph testing The sparse record developed as it has been through the process of offender-specific administrative decisions by the Parole Board does not contain any findings of fact by a neutral judicial or quasi-judicial officer about the utility of polygraphs For instance the record is bereft of reports certifications or testimony from any social scientist physician psychologist criminologist academic or other qualified expert who can either substantiate or discredit the State's premise that polygraphs in this setting have significant therapeutic rehabilitative and risk management uses
The available legislative history relating to the adoption of NJSA 30:4-12388 does not appear to refer to any specific studies or data to support the Legislature's findings approving the use of polygraphs in this setting Although not cited to us by the parties, our limited review of the published literature indicates that there seems to be disagreement over the value of such polygraphs when they are administered to released sex offenders.
To be sure, the authorizing statute and the Parole Board's associated regulations should be accorded an initial presumption of constitutionality. N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8, appeal dismissed sub nom, Borough of E. Rutherford v. N.J. Sports & Exposition Auth., 409 U.S. 943, S.Ct. 270, 34 L.Ed.2d 215 (1972). Even so, the existing record furnished to us in these appeals is patently insufficient for a reviewing court to make a definitive, evidentially-grounded assessment of these difficult and important constitutional issues.
We are mindful that appellants generally bear the burden of proof in showing that the Parole Board's use of polygraphs is unconstitutional, depending upon the nature of the claim and the level of applicable judicial scrutiny. "Anyone challenging the constitutionality of a statute [or regulation] bears the burden of establishing its unconstitutionality." State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998) (citing Newark Superior Officers Ass'n v. Newark, 98 N.J. 212, 222 (1985)). Nevertheless, appellants have at least preliminarily raised genuine and material issues about the actual utility of polygraphs in the PSL or CSL setting, particularly in light of the long-standing case law underscoring the unreliable and controversial nature of this testing device.
For these many reasons, an evidentiary hearing is vital to explore the existence and strength of what the State asserts are the therapeutic, rehabilitative, and risk management benefits of polygraph examinations as administered to released sex offenders. Such a hearing ideally should encompass expert testimony, cross-examination, and neutral judicial inquiry. Appropriate findings of fact (and, on the points where the experts may disagree, findings of credibility) must also be generated. That amplified record, along with detailed factual findings, will enable this reviewing court's more informed ultimate resolution of the competing constitutional interests at stake.
The question then becomes what forum is best suited to develop such an evidentiary record. The Parole Board itself, which traditionally considers more narrow or routine issues arising under the parole statutes, does not appear readily equipped to conduct such full-blown evidentiary hearings. Nor is the Office of Administrative Law the best suited venue, where discovery rights are limited, see N.J.A.C. 1:1-10.1 to -10.6, and the rules of evidence are relaxed, see N.J.S.A. 52:14B-10(a). We instead conclude that the exceptional circumstances of this constitutional litigation warrant referral of the necessary evidentiary hearing and fact-finding to a trial court, pursuant to the supplementation procedures set forth in Rule 2:5-5(b).
We thus refer the polygraph issues to the Law Division, Mercer County, where the Assignment Judge, or her designee judge, shall conduct the appropriate supplemental evidentiary hearings. After conferring with counsel, the specially-assigned judge shall enter a case management order to allow for the exchange of appropriate fact and expert discovery, and to plan and conduct the hearings. The judge shall have the discretion to allow other interested counsel or parties, including the Office of the Public Defender (which had commented in objections to the proposed polygraph regulations) to participate as amici or intervenors, as may be feasible and helpful to the judge's fact-finding.
Within thirty days of the completion of the evidentiary hearings in the trial court, the judge shall issue written findings of fact addressing the polygraph-related subject matters we have identified. As part of those findings, the judge shall indicate, if possible, any recommendations that he or she may have concerning how the existing procedures adopted by the Parole Board might be altered to (1) enhance any proven therapeutic, rehabilitative or risk management benefits of the polygraph testing; or (2) achieve those benefits in a manner that might be less intrusive of appellants' individual rights.
The fact-finding judge need not render conclusions of constitutional law, which are instead ultimately reserved for this court, with the benefit of the amplified record and the judge's factual findings. No later than thirty days of the judge's issuance of the factual findings, the parties (and any amici or intervenors who participate) may file written exceptions with this court. After that, the appeals will be re-calendared by the clerk's office for further argument on the polygraph issues. The supplemental proceedings shall be completed in the trial court by April 30, 2014, although the judge may request a reasonable extension of time by letter to this court if such an extension becomes necessary.
The constitutionality of the ten-hour Halloween curfew imposed on L.A. does not require extended discussion. The Parole Board has explained that the Halloween curfew was imposed on all supervised sex offenders from 2:00 p.m. to midnight because "Halloween is an event that requires particular attention as children may be unaccompanied while trick or treating in residential communities." Offenders were able to obtain specific permission for relief from the Halloween curfew to attend work, counseling, or compliance with other terms of their supervision. The curfew was instituted pursuant to N.J.A.C. 10A:71-6.12(d)(17). Here, L.A. was notified of the Halloween curfew more than a month prior, spoke with his parole officer, was granted permission to attend one of two requested business meetings, and then decided to violate the curfew anyway.
N.J.A.C. 10A:71-6.12(d)(17) requires an offender on PSL to comply with any curfew established by the offender's parole officer. In Jamgochian, supra, 196 N.J. at 247, our Supreme Court recognized that a supervised offender must be given reasonable notice of a curfew and an opportunity to be heard. The level of due process required, however, is dependent upon the number of hours and length of the curfew imposed, the basis for the curfew, whether the basis is contested, and whether credibility determinations are necessary to resolve a material fact. Ibid. In Jamgochian, the Parole Board imposed a curfew from 8:00 p.m. to 7:00 a.m. for sixteen months without any type of hearing whatsoever. Id. at 228.
The Court in Jamgochian applied the customary due-process balancing test and considered three discrete factors to establish the procedural protections required under those circumstances: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest; and (3) the government's interest. Id. at 240 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976)). The Court explained that the offender had a liberty interest in his continued freedom, which was implicated by the eleven-hour, sixteen-month curfew imposed. However, as we have already noted in Part II, supra, the offender was not entitled to the rights afforded to criminal defendants at trial or even the same protections afforded at a parole or probation revocation hearing. Id. at 241-42.
The Court explained in Jamgochian that the appellant there was entitled to challenge the inferences drawn from the victim's account and the rationale for imposing the curfew, either in writing or in person. Id. at 248. However, the Court did "not envision that a curfew of brief duration would ordinarily require a hearing necessitating the taking of testimony." Id. at 249. As we have already noted, the Court emphasized that "[d]iscretion must be invested in the Parole Board, which has the agency expertise and authority to implement a scheme that can address the unique circumstances of each case." Id. at 250.
Here, L.A. contends that the ten-hour Halloween curfew is a clear violation of his due process rights. He argues that there is no reasonable public risk to protect, and his individual circumstances were not considered in imposing the curfew. We disagree.
Unlike in Jamgochian, the curfew here was for ten hours on a single day. He was given more than one month's notice and spoke with his parole officer about permission for an exception. L.A. did have his individual circumstances considered, and he was given permission to be outside of his house for a portion of the curfew.
In sum, the short Halloween curfew imposed by the Parole Board is a reasonable imposition to guard against the great public risk of sex offenders interacting with many unsupervised children. Confining offenders to their homes for that particular evening is a constitutionally reasonable measure to protect the public.
The final claim L.A. raises is his contention that the Parole Board unfairly and punitively subjected him to temporary electronic monitoring as a result of his non-compliance with the Halloween curfew. The record indicates that the Parole Board is no longer imposing this electronic monitoring requirement on L.A. In light of that, and in the absence of a fuller record developing in detail the Parole Board's overall practices in the use of electronic monitoring on offenders on CSL and PSL, we decline to reach the constitutionality of the temporary monitoring. The issue in L.A.'s particular case is now moot. See, e.g., State v. Hughes, 230 N.J.Super. 223, 227-28 (App. Div. 1989) (declining, as a matter of discretion, to resolve the constitutionality of a temporary policy adopted to address prison overcrowding, particularly in light of the limited record presented). Moreover, judicial analysis of the electronic monitoring issue might be affected by the Supreme Court's forthcoming decision in Riley v. N.J. State Parole Board, 423 N.J.Super. 224 (App. Div. 2011), certif. granted, 209 N.J. 596 (2012), a case which concerns the potentially related subject of the retroactive application of intensive GPS monitoring of sex offenders.
For the reasons noted, we (1) affirm the Parole Board's Internet restrictions, subject to potential as-applied challenges after exemptions are sought; (2) refer the polygraph issues for fact-finding; (3) uphold the Halloween curfew; and (4) dismiss as moot L.A.'s challenge to electronic monitoring. Our jurisdiction is retained only as to the polygraph issues, pursuant to the supplementation procedures under Rule 2:5-5(b) that have been outlined in this opinion.