NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...