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 ...