IN THE MATTER OF THE CIVIL COMMITMENT OF R.O.M

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0514-07T30514-07T3

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.O.M.

 

Submitted November 18, 2008 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 89-07-1113.

Ivy Starr Minely, attorney for appellant, R.O.M.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent, State of New Jersey (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

R.O.M. is a patient at Ancora State Hospital, having been committed after being found guilty by reason of insanity in November 1990 of murdering his mother, brother, and two others. Following an annual review of his commitment pursuant to State v. Krol, 68 N.J. 236 (1975), the trial court ordered his continued commitment but permitted "off-campus visits" subject to conditions. One of those conditions was that R.O.M. "shall wear a wristlet-type monitoring device [Global Positioning System (GPS)] which allows his location to be ascertained." Both appellant, and the State, which was represented at the Krol hearing by the State Attorney General, challenged that condition. They asserted that Ancora does not possess GPS equipment, and even if it did, R.O.M. does not pose a danger to the community or a flight risk. The court rejected those arguments.

On appeal, appellant contends the court was without legal authority to order the use of a monitoring bracelet, and further claims that his right to due process was violated by the challenged condition. The Union County Prosecutor, representing the State on appeal, argues that the trial court was within its discretion to order appellant to wear a wristlet during off-campus visits.

We agree with appellant that the court does not have the legal authority to impose a condition that would require the State to purchase equipment that it currently does not possess. Consequently, we reverse that portion of the trial court's order that requires appellant, during all off-campus visits, to wear a wristlet-type monitoring device, and remand for further proceedings consistent with this opinion.

In a letter to the court dated December 28, 2006, in anticipation of an upcoming annual review hearing, Dr. Benjamin Liberatore, a clinical psychiatrist at Ancora who had been treating appellant since September 2003, stated that R.O.M. has had minimal off-grounds visits, but several successful on-grounds overnight visits without staff supervision. Dr. Liberatore did not consider R.O.M. to be an escape risk. He opined that off-grounds trips with a non-staff escort would be beneficial to R.O.M.'s treatment.

The court conducted an annual review of appellant's institutionalization on January 9, 2007. During that proceeding, the court took testimony from both Dr. Liberatore and appellant's therapist, Dr. Margo Morgan, a clinical psychologist; reviewed Dr. Liberatore's July 27, 2006 report, as well as a number of other submissions bearing upon appellant's visitation activities; examined progress notes relating to appellant's individual therapy sessions; and reviewed Dr. Morgan's April 25, 2006 psychological assessment of appellant. The court entered an order on April 10, 2007, permitting off-campus visits within five miles of the Ancora campus, subject to sixteen conditions. Appellant objects to the sixteenth condition, which states: "During all off-campus visits with a visitor, [R.O.M.] shall wear a wristlet-type monitoring device which allows his location to be ascertained."

Following the issuance of the order, the State Attorney General's office filed a motion to, among other things, remove the requirement that R.O.M. wear a monitoring GPS bracelet during off-campus visitations. The Deputy Attorney General (DAG) represented to the trial court that Ancora did not have GPS equipment neither the bracelet nor the monitoring equipment; that the equipment was "a tremendous expense," and the statute that authorized that type of equipment was limited to monitoring sexually violent predators. The DAG also represented that R.O.M.'s medical treatment team did not believe the equipment was necessary, as the team did not consider R.O.M. either a flight or danger risk.

The court rejected the State's arguments. The following colloquy ensued between the court and the DAG:

[THE COURT:] I don't see any compelling reason not to order it, especially in light of most recent events. You have nothing to tell me, that the cost is too prohibitive, that there's no way that they can possibly get this, there's no way they can possibly borrow this equipment, nothing.

[DAG]: Judge, if I might ask if we can have a court order that obligates the Department of Corrections to comply with the Department of Human Services or the local Parole Board. They did make attempts to get it on loan from the Parole Board.

THE COURT: That's beyond me. That's a civil action. They are not a party to this. I cannot compel the Department of Corrections to do something. They weren't noticed to be here. And, quite frankly, criminal courts are not the proper venue. [R.] 4:69, if my memory serves me correctly . . . you have to bring it under that. But I can't see why a simple requirement like that, one that would protect the public, cannot be complied with.

[DAG]: Your Honor, respectfully, I don't think it is a simple requirement to obligate the hospital to buy equipment, buy monitoring equipment, hire staff, train staff for one person. This has never been done before.

THE COURT: Maybe it is time.

[DAG]: He is neither convicted of a crime, he is not on parole, he is not on probation, he is not a sexually violent predator. No statute speaks to this type of thing.

THE COURT: I understand. I understand your argument completely.

[DAG]: So I would just say I don't think the Court has authority to require the Department of Corrections to purchase this equipment.

THE COURT: I'm ordering them. [R.O.M.] may get a court order compelling you to do that, but I'm not. There's a difference here. I'm saying before he is allowed off the grounds, pursuant to my last order, there has to be a GPS bracelet.

The court subsequently expanded upon its reasoning:

As I indicated before, I have to balance risk to society versus furtherance of [R.O.M.'s] treatment at this early stage of his treatment with visitations that are not supervised by Ancora personnel. I think we should proceed slowly, as I indicated in my previous ruling. We know that there is technology available to track those supposed risks. The Global Positioning System that's being used to monitor sex offenders points to the fact that technology is available.

As Acting-Governor Cody said when he enacted that legislation, "GPS technology allows law enforcement to track every movement of convicted sex offenders so we know if they are in places they shouldn't be. There are no greater priorities than the safety of our children."

Likewise, the priority to protect citizens in and around Ancora is very great. [R.O.M.] committed four homicides and attacked others. The State met the burden he suffers from mental illness and that his continued commitment is necessary to protect the public. That's my decision of February 14th, 2007, page 15.

. . . .

This court will continue its support of [R.O.M.'s] gradual reintegration into the community, but it will not risk harm to the community just because Ancora Hospital did not make an effort to obtain a monitoring device.

The argument that the Department of Human Services police does not possess and cannot obtain a GPS system is unacceptable.

. . . .

The GPS wristlet balances the need for less restriction with the need to protect the citizens in and around Ancora and Hammonton. The wristlet would allow [R.O.M.'s] movement to be monitored, will serve as a deterrent to escape, and will allow the committee to be tracked if he does violate the conditions of his visitation, so those violations can be minimized.

These devices are available certainly to monitor sex offenders as required by P.L. 2 007 Chapter 128 enacted on August 16th, 2007. I do not order, I did not order monitoring to be done pursuant to that Act. Actually, the Act did not exist when I made my prior ruling.

Such equipment allows for the continuous tracking of a person's geographic location or other electronic monitoring and I believe that at this early stage in [R.O.M.'s] treatment outside the grounds of Ancora, unsupervised by Ancora staff, that such protections are necessary. As such, the Court will not remove that condition from its most recent order.

We conclude that the court overstepped its authority by requiring R.O.M. to wear a GPS monitoring system before he could be released into the community.

In reviewing a trial court's determination regarding continuing restraints in cases of Krol patients, we "should give the utmost deference to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty." In re Commitment of J.L.J., 196 N.J. Super. 34, 49 (App. Div. 1984), certif. denied, 101 N.J. 210 (1985). The trial court's "determination will be subject to modification only where the record reveals a clear mistake in the reviewing judge's broad discretion in evaluating the patient's current condition and formulating a suitable order." Ibid. However, we are not required to give deference to a trial court's legal determinations when they misconstrue or misapply the law. Ibid.

Individuals found not guilty by reason of insanity and committed to a psychiatric facility shall be treated as if they were civilly committed. State v. Fields, 77 N.J. 282, 293 (1978); In re Commitment of J.L.J., supra, 196 N.J. Super. at 45-46). The institutionalization of an individual who was acquitted of a violent offense by reason of insanity involves serious infringements upon the individual's personal liberties, raising constitutional principles of due process. Krol, supra, 68 N.J. at 247-48. Thus, following a Krol hearing, the court's order must not only protect society's strong interest in public safety, but must do so in a fashion "that reasonably minimizes infringements upon defendant's liberty and autonomy and gives him the best opportunity to receive appropriate care and treatment." Id. at 257-58. Therefore, "[a]ll patients civilly committed as dangerous to self or others, [as well as those committed after a finding of not guilty by reason of insanity,] are entitled to 'the least restrictive conditions necessary to achieve the purposes of treatment.'" In re Commitment of J.L.J., supra, 196 N.J. Super. at 46 (quoting N.J.S.A. 30:4-24.2e(2)). Those found not guilty by reason of insanity have a "constitutional right to the least restrictive environment appropriate to the protection of society and the rights of the individual." Id. at 47.

Here, although the trial court indicated that it did not enter its order pursuant to the Sex Offender Monitoring Act, N.J.S.A. 30:4-123.89 to 123.95, the court made a number of references to that act in arriving at its decision. The act, by its own terms, is limited to monitoring sex offenders. It provides that "[i]ntensive 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." N.J.S.A. 30:4-123.90b. To accomplish this goal, the act requires the chairman of the State Parole Board to establish a program for the use of a GPS monitoring system for sex offenders. N.J.S.A. 30:4-123.92.

Although the trial court did not rely on the act, it nevertheless required that appellant, a Krol patient, not a sex offender, be subject to the same monitoring as would a sex offender. In the absence of an underlying legislative enactment requiring Ancora to establish a similar monitoring program, which would require the purchase and use of a GPS monitoring device in the case of a Krol patient, the court is without authority to make such a requirement a condition of release.

If Ancora was in possession of the appropriate GPS monitoring system, and had a staff trained to use it, the court arguably would have had a basis to require use of that system in light of R.O.M.'s prior violent behavior. The court may not, however, order a state psychiatric hospital, which is an arm of the executive branch of state government, to expend public funds to purchase and maintain such a monitoring system. Such an order represents a transgression by the judiciary upon the powers of the executive branch of government, violating the separation of powers provision of Article 3, Paragraph 1 of the New Jersey Constitution. That provision "was designed to 'maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch.'" Commc'ns Workers of Am. v. Florio, 130 N.J. 439, 449 (1992) (quoting David v. Vesta Co., 45 N.J. 301, 326 (1965) (footnote and emphasis omitted)). As the New Jersey Supreme Court has indicated, "the judiciary cannot unravel the [State's] fiscal skein." Robinson v. Cahill, 62 N.J. 473, 520 (1973); cf. O'Neill v. State Highway Dep't of N.J., 50 N.J. 307, 315 (1967) (action for money judgment against State barred "because the judiciary cannot compel its co-equal branches of government to appropriate money to pay").

Consequently, here, in the absence of legislative authority requiring the State to establish an electronic monitoring system for Krol patients, the trial court exceeded its authority by requiring R.O.M. to wear a GPS monitoring device during off-campus visits with a visitor. We therefore strike that condition from the April 10, 2007 order.

That said, in the absence of condition number sixteen, should the trial court determine that additional conditions are necessary prior to R.O.M. being permitted to be released for off-campus visits, the court may, in its discretion, impose such other conditions as may be necessary to ensure the public's safety during R.O.M.'s off-campus visits. In making such an assessment, the court shall be guided by the Supreme Court's instruction in Krol, supra, which allows the trial court to resolve all doubts in favor of protecting the public, but, at the same time, the order may not infringe upon R.O.M.'s liberty or autonomy "any more than appears reasonably necessary to accomplish" that goal. 68 N.J. at 261-62.

 
Reversed and remanded for further proceedings consistent with this opinion.

The Attorney General's office, although provided notice of R.O.M.'s appeal, has not filed a brief or a statement in lieu of brief with this court.

(continued)

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11

A-0514-07T3

RECORD IMPOUNDED

December 19, 2008