IN THE MATTER OF THE CIVIL COMMITMENT OF S.X.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5433-07T25433-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.X.H., SVP-399-05.

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Submitted October 1, 2009 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-399-05.

Loughlin & Latimer, attorneys for appellant (Stephen M. Latimer, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).

PER CURIAM

S.X.H. appeals from a judgment entered on June 6, 2008, which committed him to the Special Treatment Unit pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. We affirm.

A criminal defendant convicted of a predicate offense to the SVPA may be subject to involuntary civil commitment when suffering from "a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. To warrant commitment, the State must prove, by clear and convincing evidence, that "the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002); In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).

Prior to conducting a hearing, the judge considered S.X.H.'s motions relating to his various constitutional and procedural contentions. The trial judge ruled against S.X.H. on all these points and, after conducting a plenary hearing, determined that the State had met its burden of proving, by clear and convincing evidence, that S.X.H. should be committed pursuant to the SVPA.

Following the entry of judgment, S.X.H. appealed, raising the following two arguments:

I. THE FAILURE TO PROVIDE TREATMENT TO S.X.H. WHEN HE WAS FIRST CONVICTED DENIED HIM THE EQUAL PROTECTION OF LAW AND WAS FUNDAMENTALLY UNFAIR UNDER ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION.

II. S.X.H. INCORPORATES BY REFERENCE THAT HE WAS ENTITLED TO A TRIAL BY JURY AND THAT HIS FUNDAMENTAL RIGHT TO TRAVEL WAS ABRIDGED, PRESERVING THEM FOR FEDERAL HABEAS CORPUS REVIEW PURSUANT TO STATE v. WEBSTER, 187 N.J. 254 (2006).

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

In the first point, S.X.H. contends he was denied the equal protection of the law because of what he refers to as a two-tier classification of sex offenders, i.e., offenders whose conduct warrants immediate treatment pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, and offenders required to serve prison terms and are not treated until civilly committed pursuant to the SVPA.

The federal equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985). S.X.H. has not argued a violation of the federal equal protection clause, apparently recognizing that the majority position in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), although not directly on point, does not give aid and comfort to his view. Thus, S.X.H. relies only on state equal protection principles.

Although our state constitution does not contain an equal protection clause, it has been recognized that "[a] concept of equal protection is implicit in Art. I, par. 1 of the 1947 New Jersey Constitution," McKenney v. Byrne, 82 N.J. 304, 316 (1980), which is broader than its federal counterpart, State v. Chun, 194 N.J. 54, 101-02 (2008). This state constitutional right does not follow "the traditional equal protection paradigm of the federal courts, which focuses rigidly on the status of a particular protected class or the fundamental nature of the implicated right," id. at 102, but instead requires application of a balancing test that weighs the "nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction," Caviglia v. Royal Tours of Am., 178 N.J. 460, 473 (2004) (quoting Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985)). Ultimately, state equal protection principles "demand that the exercise of the [police] power be devoid of unreason and arbitrariness, and the means selected for fulfillment of the policy bear a real and substantial relation to that end." Katobimar Realty Co. v. Webster, 20 N.J. 114, 123 (1955); see also Chun, supra, 194 N.J. at 102.

It is certainly true that the SOA and the SVPA each "employs different definitions and has different criteria for their application" to individuals who have engaged in similar conduct. In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 223 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005). Nevertheless, we reject the contention that the operation of these enactments to sex offenders creates arbitrary classifications of similarly situated persons.

Both the SOA and the SVPA require consideration of the individual's present status as a sex offender that may vary from the time the individual is sentenced until later considered for involuntary commitment. Like anyone else convicted of the offenses that S.X.H. committed, he had the opportunity for the sentencing alternative authorized by the SOA. That he was not found eligible for alternative sentencing many years ago, but now found eligible for involuntary commitment pursuant to the SVPA, does not suggest arbitrariness in these enactments but, instead, a reasoned approach to his and society's particular needs in a given case and at a given time. See In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 638-39 (App. Div. 2009). Indeed, we find nothing irrational in a statutory scheme that postpones treatment of a sex offender found ineligible for SOA sentencing until such time, if ever, the offender is involuntary committed. The state may legitimately exercise its police power to mete out punishment to criminal offenders, whose status does not qualify them for SOA sentencing, as a deterrent -- a goal that would be unduly debilitated if, in all cases, the state was required to immediately treat rather than punish all sex offenders.

In his second point, S.X.H. argues that he was deprived of the right to trial by jury and that his commitment violates his constitutional right to travel. We reject the former aspect of this point by adhering to our prior holding in In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 606-07 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). We reject the latter aspect substantially for the reasons set forth by Judge John C. Kennedy in his comprehensive and thoughtful written opinion.

 
Affirmed.

S.X.H. has committed multiple offenses that qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26.

S.X.H. did not make this argument in the trial court and ordinarily we would refuse to entertain it at this late date. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, we have chosen to consider the argument on its merits.

At the time of sentencing in 1997, in order to determine his eligibility pursuant to the SOA, S.X.H. was examined by a licensed psychologist, who opined:

Based upon the information reviewed and elicited during the present examination, there is clear evidence to indicate that [S.X.H.] is a repetitive sexual offender. By his own admission, he has now been convicted of sexually assaulting two women. The evidence to support a finding that his actions in the present offenses were performed compulsively, however, is lacking. Based upon all the information available, the clinical impression is that [S.X.H.'s] criminal sexual behaviors were motivated more by an over focus on his own pleasure, opportunism, and the influence of his delinquent peer group. Consequently, he is not eligible for sentencing under the purview of the [SOA].

S.X.H. did not question the judge's determination, based upon this finding, that he was not entitled to be sentenced pursuant to the SOA.

(continued)

(continued)

7

A-5433-07T2

RECORD IMPOUNDED

October 15, 2009