S.G. v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

S.G.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

HUMAN SERVICES,

Respondent.

________________________

November 29, 2016

Submitted November 7, 2016 Decided

Before Judges Nugent and Haas.

On appeal from New Jersey Department of Human Services.

S.G., appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

PER CURIAM

Appellant S.G. is civilly committed to the Special Treatment Unit ("STU"), the secure facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. Respondent Department of Human Services ("DHS") provides treatment services to S.G. at the STU. N.J.S.A. 30:4-27.34(b).

In his appeal, S.G. challenges the March 25, 2015 decision of the STU Clinical Director ("Director"), denying his request for reimbursement of alleged excessive photocopying charges he asserts the DHS charged him between March 2011 and December 2014. We affirm.1

We discern the following facts from the record. The DHS charges STU residents, like S.G., fifteen cents per page for photocopying. Relying upon a regulation promulgated by the DOC, N.J.A.C. 10A:6.25(a), S.G. asserted that the DHS should have been charging STU residents only ten cents per page. In pertinent part, this regulation provides that "[t]he [DOC] shall provide photocopies of legal material . . . to inmates at the rate of $.10 per page in accordance with guidelines and limitations set forth in" the regulation. N.J.A.C. 10A:6.25(a) (emphasis added).

As noted above, however, S.G. is a "resident" of the STU. See N.J.A.C. 10A:35-1.4 (defining "resident" as "a person who has been . . . involuntarily civilly committed" to the STU). He is not an "inmate" of a DOC correctional facility. See In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003) (noting that the SVPA is not a criminal statute, but rather a civil commitment statute with one of its primary objectives being the treatment of sex offenders), certif. denied, 179 N.J. 312 (2004). However, S.G. argued that because the DHS had not promulgated a regulation of its own covering photocopying costs for STU residents, the agency was required to charge residents the same photocopying fee as the DOC charged its inmates. Therefore, S.G. asked the DHS to reimburse him for the total fees2 he claimed the DHS overcharged him for photocopying between March 2011 and December 2014.

On March 25, 2015, the Director denied S.G.'s reimbursement request in a written decision. The Director found that the ten cents per page fee established for DOC inmates in N.J.A.C. 10A:6.25(a) did not apply to STU residents. Instead, the STU charged residents fifteen cents per page, which the Director stated was "a fair and representational fee . . . based on approximations of the various costs to the [S]tate of New Jersey."

In setting the photocopying fee, the Director explained that the DHS considered the compensation inmates and residents could earn by working in their respective institutions. The Director noted that DOC inmates were paid approximately $2 per day for their institutional work, while STU residents earned $8.38 per hour for work performed in their facility. This difference in the funds available to inmates and residents, the Director concluded, provided further support for the DHS' decision to charge STU residents fifteen, rather than ten, cents per page. Nevertheless, the Director also advised S.G. that the DHS had recently decided to prospectively reduce the photocopying fee for STU residents to ten cents per page. This appeal followed.

On appeal, S.G. raises the same contentions he unsuccessfully pressed before the Director. Established precedents guide our task on appeal. "Our scope of review of an administrative agency's final determination is limited." Capital Health Sys. v. N.J. Dep't of Banking & Ins., 445 N.J. Super. 522, 535 (App. Div.) (citing In re Stallworth, 208 N.J. 182, 194 (2011)), certif. denied, ___ N.J. ___ (2016). "[A] strong presumption of reasonableness attaches" to the agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). The burden is upon the appellant to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable[,] or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

To that end, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). We are not, however, in any way "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Capital Health Sys., supra, 445 N.J. Super. at 536 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

Applying our highly deferential standard of review, we are satisfied that the record fully supports the Director's determination that the DOC's photocopying fee regulation for its inmates, N.J.A.C. 10A:6-2.5(a), did not apply to STU residents. By its express terms, the regulation only applies to "inmates" and, as discussed above, S.G. is a civilly-committed STU resident. Therefore, the DHS was not required to follow this regulation in setting its own photocopying fee.

Moreover, appellate courts defer to an administrative agency's interpretation of regulations that are "within the sphere of [its] authority," so long as that interpretation is not "patently unreasonable." In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 541 (2016) (quoting U.S. Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)) (alteration in original). Here, the Director stated that the DHS had never applied the fee set in N.J.A.C. 10A:6-2.5(a) to STU residents. As the Director explained in his written decision, the DHS decided to charge STU residents a slightly higher fee because they had the opportunity to earn considerably more for the work they performed in the STU than DOC inmates could earn in a correctional institution. Because this determination is supported by sufficient credible evidence in the record, we will not disturb it.

As he did before the Director, S.G. argues that because the DHS did not promulgate its own photocopying fee regulation, it was required to follow DOC's rule for inmates under N.J.A.C. 10A:6-2.5(a). In support of this contention, S.G. points to N.J.A.C. 10A:1-2.1(c), a DOC regulation that states

Pursuant to the [SVPA], the [DOC] shall be responsible for the operation of any [STU] designated for the custody, care, control and treatment of sexually violent predators; therefore, when deemed necessary by the Commissioner of the [DOC] or designee, operational, custodial, security and medical rules set forth within N.J.A.C. 10A:1 through 10A:30 shall be applicable to [STUs].

[(emphasis added).]

S.G. asserts that because N.J.A.C. 10A:6-2.5(a) is included in the range of regulations mentioned in N.J.A.C. 10A:1-2.1(c), it should have been applied to his requests for photocopies at the STU. We disagree.

Contrary to S.G.'s contention, there is nothing in the record to indicate that the Commissioner of the DOC has ever "deemed [it] necessary" to require the DHS to charge STU residents the fee the DOC charges to inmates. Thus, N.J.A.C. 10A:6-2.5(a) remains inapplicable to STU residents like S.G.

Finally, S.G. contends that the DHS' decision to begin charging STU residents ten cents per page for photocopies meant that the prior fifteen cents per page fee must have been erroneous. However, "our state has had a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences." In re Petition of S.D., 399 N.J. Super. 107, 124 (App. Div. 2008). Otherwise, "[a]dministrative agencies would be deterred from improving their procedures . . . in response to evolving situations if their mere act of doing so could constitute an admission that the procedures . . . were invalid or void." Ibid. Thus, the DHS' decision to reduce its photocopying fee prospectively did not evidence any infirmity in its prior administrative policy.

Affirmed.

1 S.G.'s notice of appeal also listed the Department of Corrections ("DOC") as a respondent, but he did not identify or challenge any specific decision by that agency in his brief. The DOC is responsible for the operation of the STU. N.J.S.A. 30:5-27.34(a). To whatever extent S.G. may be seeking appellate relief from the DOC, we deny his request as to that agency as well and incorporate by reference our analysis as to the DHS.

2 S.G. asserted this amount was between $48.10 and $64.85.