THE COUNTY OF HUDSON VS DEPARTMENT OF CORRECTIONS, STATE OF NEW JERSEY, WILLIAM H. FAUVER, ET AL

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 300 N.J. Super. 389.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5269-95T1
A-2102-96T1

THE COUNTY OF HUDSON,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,
STATE OF NEW JERSEY, WILLIAM H.
FAUVER, COMMISSIONER DEPARTMENT
OF LAW and PUBLIC SAFETY,
JUVENILE JUSTICE COMMISSION,
STATE OF NEW JERSEY, DEBORAH T.
PORITZ, ATTORNEY GENERAL,

Defendants-Respondents.

__________________________________________
THE COUNTY OF CAMDEN,
A BODY POLITIC OF THE STATE
OF NEW JERSEY,

Plaintiff-Appellant,

v.

PETER G. VERNIERO, ATTORNEY
GENERAL OF THE STATE OF NEW
JERSEY, IN HIS OFFICIAL CAPACITY
AS ADMINISTRATOR OF THE JUVENILE
JUSTICE COMMISSION OF THE STATE
OF NEW JERSEY, AND CHAIR OF THE
EXECUTIVE BOARD OF THE JUVENILE
JUSTICE COMMISSION; PAUL DONNELLY,
EXECUTIVE DIRECTOR OF THE JUVENILE
JUSTICE COMMISSION OF THE STATE OF
NEW JERSEY, IN HIS OFFICIAL
CAPACITY; THE JUVENILE JUSTICE
COMMISSION; and THE STATE OF NEW
JERSEY; WILLIAM FAUVER, COMMISSIONER
OF DEPARTMENT OF LAW AND PUBLIC
SAFETY AND DEPARTMENT OF CORRECTIONS,

Defendants-Respondents.

Submitted April 16, 1997 - Decided May 2, 1997

Before Judges Shebell, Baime and P.G. Levy.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County.

Francis DeLeonardis, Hudson County Counsel,
attorney for appellant (Michael A. Cifelli,
Assistant County Counsel, on the brief).

Peter Verniero, Attorney General of New
Jersey, attorney for respondents (Joseph L.
Yannotti and Jeffrey J. Miller, Assistant
Attorneys General, of counsel; Daisy B. Barreto,
Deputy Attorney General, on the brief).

On appeal from the Final Agency Decision
of the Attorney General on Behalf of the
Juvenile Justice Commission.

Robert G. Millenky, County Counsel, attorney
for appellant (Donna M. Whiteside, Assistant
County Counsel, on the brief).

Peter Verniero, Attorney General of New Jersey,
attorney for respondents (Joseph L. Yannotti,
Assistant Attorney General, of counsel; Daisy B.
Barreto, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

SHEBELL, P.J.A.D.
These appeals come to us by different procedural avenues, although both involve the continuous failure of the Juvenile Justice Commission ("JCC"), with the assent of the Attorney General, to comply with the demands of Hudson and Camden Counties to remove certain State-sentenced juvenile offenders from their respective County Youth Detention Centers. Identical issues of the continued viability of our decision in Monmouth v. Dep't of Corrections, 236 N.J. Super. 523 (App. Div. 1989) and N.J.A.C. 10:19-4.2, adopted by the Department of Corrections (DOC) in

compliance with that decision, are common to both matters. We have, therefore, consolidated the appeals for purposes of our opinion.
The State-defendants urge that the Legislature's transfer of responsibility for State-committed juveniles from the DOC to the JJC vitiates our holding in Monmouth as well as the regulation implementing it. We disagree and order immediate compliance statewide.
The reasoning of our decision in Monmouth, supra, obviates the need for any extended discussion regarding the present circumstances surrounding the State's refusal to remove State-sentenced offenders from county detention facilities "as expediously as possible upon notification of the court's disposition." 236 N.J. Super. at 528. N.J.A.C. 10:19-4.2 was adopted by the DOC as the appropriate time interval, three days after notification, to arrange for the necessary transportation of the sentenced youths. The problems regarding a lack of State housing are not proper subjects for discussion or consideration on this issue, as the State may not unilaterally shift that burden onto the Counties. See N.J.S.A. 2A:4A-44.1.
We recognize that when reviewing the actions of an administrative agency, this court should "not upset a[n agency] determination ... in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the ... act." Campbell v. Dep't of

Civil Service, 39 N.J. 556, 562 (1963). However, agency action rises to the level of being arbitrary and capricious when a law or regulation is being disregarded by that agency. Monmouth, supra, 236 N.J. Super. at 525.
The State asserts that Monmouth and N.J.A.C. 10:19-4.2 must be construed with subsequently enacted legislation and that our earlier decision no longer provides support for the Counties' positions that compliance is required. However, the legal basis of our decision in Monmouth has not changed. Moreover, although N.J.A.C. 10:19-4.2 was amended twice in 1995, see 27 N.J.R. 1101(a) and 2221(a), the time frame in which the State was required to remove State-sentenced offenders was not changed.
The argument of the Attorney General and the JJC is unsupported by any evidence of a Legislative intent to alter the statutory scheme of placing responsibility for State-committed juveniles on the State and not the counties, absent the assent of a particular county with available capacity. See 2A:4A-44.1. In the two cases before us, there is no agreement between the State and County. Nor does there appear to be the ability to enter into a pact with either County to house juveniles who are under the custody of the State, as both Counties are well over their "maximum rated capacity." Ibid. The fact that the duties of the DOC have been transferred to the JJC is of no moment on the issue.
Here, we are painted a picture of county detention facilities with as many as four youths assigned to a room

designed for one, school time for the youths being reduced to one hour per day or every other day, and youths being confined to their overcrowded rooms for as much as twelve hours per day. This is reflected in increased incidents of violence both during recreation times and when the residents are confined to their rooms. The Counties attribute these problems to the State-sentenced offenders who had not been removed in accordance with N.J.A.C. 10:19-4.2. In Monmouth, supra, we found that State-sentenced juveniles present a greater risk to "the facility, its residents and staff ...." 236 N.J. Super. at 527. In any event, the problems with overcrowding specifically caused by the detention of State-sentenced offenders in these County Youth Detention Centers are well-documented.
There is no question that State-sentenced offenders are being caused to remain post-disposition at the County Youth Detention Centers for longer than the maximum three day period prescribed by N.J.A.C. 10:19-4.2. The State has unilaterally and defiantly decided to leave these State-sentenced offenders in the County Youth Detention Centers until space can be found in the State institutions to which they should have been transferred. N.J.A.C. 10:19-4.2 was adopted as the reasonable period of time to arrange only for transportation, not housing, of these juveniles. That is the only delay permitted under the applicable law. In this context, under no tenants of judicial construction can it be said that the enactments of N.J.S.A. 52:17B-169 to -178 (Juvenile Justice Commission), N.J.S.A. 52:17B-179 to -180 (the

State/Community Partnership Grant Program) and N.J.S.A. 52:17B-181 to -190 (Stabilization and Reintegration Act) have rendered N.J.A.C. 10:19-4.2 a nullity.
Indeed, any attempt to change the regulation for the purpose of shifting the housing burden to the counties would be invalid, absent action by the Legislature. Following our decision in Monmouth, the Legislature did act by passing N.J.S.A. 2A:4A-44.1, permitting agreements between the State and Counties and providing safeguards to prevent overcrowding. The present position of the Attorney General and the JJC attempts to thwart those safeguards at the risk of grave danger to juveniles. If detained youths are to be placed in such dangerous conditions as are caused by overcrowding and intermingling with State-sentenced prisoners, it must be with the express consent of the Legislature after public debate of the issue.
N.J.A.C. 10:19-4.2 is a valid regulation, promulgated pursuant to court order. There is no legitimate reason for the State to continue its noncompliance with that regulation or to otherwise seek to circumvent the provisions of N.J.S.A. 2A:4A-44.1. Therefore, the State is hereby ordered to forthwith remove State-sentenced offenders within the three-day time period of N.J.A.C. 10:19-4.2, subject to any agreements entered into pursuant to N.J.S.A. 2A:4A-44.1.
Reversed.

- -