277 A.2d 193 (N.J. 1971), Monks v. New Jersey State Parole Bd.

Citation:277 A.2d 193, 58 N.J. 238
Opinion Judge:[9] Jacobs
Party Name:William MONKS, Appellant, v. NEW JERSEY STATE PAROLE BOARD and Harold J. Ashby, Chairman, Respondents.
Attorney:[6] Mr. Anthony G. Amsterdam, a member of the District of Columbia bar, argued the cause for appellant (Mr. Richard Newman and Mr. George E. Pollard, attorneys; Mr. Jack Himmelstein, a member of the New York bar, of counsel).
Case Date:May 10, 1971
Court:Supreme Court of New Jersey

Page 193

277 A.2d 193 (N.J. 1971)

58 N.J. 238

William MONKS, Appellant,


NEW JERSEY STATE PAROLE BOARD and Harold J. Ashby, Chairman,


Supreme Court of New Jersey.

May 10, 1971

Argued March 8, 1971. [58 N.J. 239]

Anthony G. Amsterdam, a member of the District of Columbia bar, Stanford, Cal., for appellant (Richard Newman, Trenton and George E. Pollard, Newark, attorneys; Jack Himmelstein, New York City, of counsel).

Alfred L. Nardelli, Deputy Atty. Gen., for respondents (George F. Kugler, Jr., Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

The opinion of the Court was delivered by


The State Parole Board rejected the appellant's request for a statement of its reasons for denial of parole to him. He filed notice of appeal to the Appellate Division which dismissed his appeal as untimely. His petition for certification was granted by this Court. 57 N.J. 292, 271 A.2d 717 (1970).

In 1957 the appellant William Monks, then 15 years of age, was adjudicated a juvenile delinquent for offenses which, if he had been 18 or older, would have constituted murder in the first degree, robbery and atrocious assault and battery. He was committed to the Bordentown Reformatory. His period of confinement was indeterminate, to continue until the appropriate authority decided that he should be paroled though not beyond the maximum provided by law with respect to an adult. N.J.S.A. 2A:4--37; In re State In Interest of Steenback, 34 N.J. 89, 99, 167 A.2d 397 (1961); In re Smigelski, 30 N.J. 513, 526, 154 A.2d

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1 (1959). Because of disciplinary problems at Bordentown, Mr. Monks was transferred [58 N.J. 240] on May 31, 1967 to the New Jersey State Prison where he is now confined.

Within a four-month period subsequent to the transfer, the Parole Board conducted its initial hearing in Mr. Monks' case and denied parole. It rescheduled the matter for a further hearing in two years. On further hearing, the Board on September 16, 1969 again denied parole and scheduled rehearing for September 1971. The notice to Mr. Monks set forth no reasons for the Board's decision and simply noted that 'parole has been denied regardless of the availability of a suitable parole plan.' On October 4, 1969 Mr. Monks wrote a letter to the Board in which he said that he would like to know what was necessary to convince the Board that he was 'a good parole risk'; that if the Board could be good enough to give him 'some idea of the reasons' for its action he would be in a position to behave in any way the Board expected; that he wanted to do whatever he could 'to be released at the earliest possible time'; and that if a reconsideration was possible he would like to mention that he had 'a very good job waiting' for him and also 'a home to live' in with his brother and sister-in-law. In response to this letter the Board notified Mr. Monks on October 21, 1969 that his case had been studied again and that the Board was of the opinion 'that there should be no change in the prior determination that parole should be denied and that you should be scheduled for a further hearing in September 1971.'

On January 5, 1970 Mr. Amsterdam, an attorney who had been designated by the United States Supreme Court to represent Mr. Monks in a legal proceeding unrelated to the parole matter before us (Monks v. New Jersey, 395 U.S. 942, 89 S.Ct. 2021, 23 L.Ed.2d 461 (1969); 398 U.S. 71, 90 S.Ct. 1563, 26 L.Ed.2d 54 (1970)), wrote a letter to Mr. Harold J. Ashby, Chairman of the Parole Board. In his letter Mr. Amsterdam pointed out that Mr. Monks was unclear as to why he had been denied parole since he felt that his behavior since his transfer to State Prison had been [58 N.J. 241] 'such as to warrant favorable consideration.' Mr. Monks wondered whether there is some damaging information in the Board's files which is 'legitimately subject to question or refutation' and whether 'there is some way in which his prison behavior should be changed, so as favorably to impress the Board.' Mr. Amsterdam renewed Mr. Monks' request 'for some explanation of the considerations that moved the Board to deny him parole,' pointing out that he could not effectively counsel Mr. Monks and aid in his rehabilitation without knowing 'what sorts of considerations' are considered relevant by the Board to the parole determination.

On January 13, 1970 Mr. Ashby replied to Mr. Amsterdam declining to say anything with respect to the reasons for the denial of parole to Mr. Monks. He did however state that 'as a matter of policy,' the Board does not give reasons, citing New Jersey decisions as holding that it was under no legal obligation to do so. Mastriana v. N.J. Parole Bd., 95 N.J.Super. 351, 231 A.2d 236 (App.Div.1967); Puchalski v. N.J. State Parole Board, 104 N.J.Super. 294, 250 A.2d 19 (App.Div.), aff'd, 55 N.J. 113, 359 A.2d 713 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970); see also Madden v. New Jersey State Parole Board, 438 F.2d 1189 (3 Cir. 1971). Mr. Ashby's letter closed with a statement that if Mr. Amsterdam desired to discuss the matter further an appointment would be arranged. On March 2, 1970 Mr. Ashby met with Messrs. Newman and Himmelstein, acting as additional counsel for Mr. Monks, and the substance of their meeting was set forth in a letter dated March 23, 1970 to Mr. Ashby which concluded with 'a final request' that he furnish the information sought. On March 31, 1970 Mr. Ashby replied, citing N.J.S.A. 30:4--123.14 and repeating his earlier assertion that the reasons for denial of parole 'need not be revealed.' Mr. Ashby did not suggest that there were circumstances special to Mr. Monks' case which would call for withholding

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reasons from him, apart from the Board's general policy, and our own examination of the Parole Board's file indicates that there were none. [58 N.J. 242]

Treating the March 31, 1970 letter as the Board's final decision or action within the contemplation of R. 2:2--3(a), the appellant filed his notice of appeal to the Appellate Division. The respondents moved to dismiss on the ground that the appeal was not taken within the prescribed 45-day period from the denial of parole on September 16, 1969. See R. 2:4--1(b). The Appellate Division dismissed the appeal as untimely, apparently rejecting the appellant's position that his appeal was not from the denial of parole on September 16, 1969 but only from the denial of his request for reasons which, he contends, did not become final until March 31, 1970. See DeNike v. Bd. of Trustees, Employees Ret. System of N.J., 34 N.J. 430, 433--436, 170 A.2d 12 (1961); Schack v. Trimble, 28 N.J. 40, 49, 145 A.2d 1 (1958); Lettieri v. State Board of Medical Examiners, 24 N.J. 199, 206, 131 A.2d 518 (1957). We granted certification not because of the timeliness question but because we were concerned with whether a parole denial should not in this age be accompanied by a fair statement of reasons. We shall therefore pass the timeliness issue and proceed to the merits, noting however that in any event Mr. Monks has a viable right to seek a declaration as to the validity of the Board's general policy of not stating reasons, a policy which does not rest on any express statutory provision but is embodied in a formal administrative Parole Board rule designated 11:70--54. Cf. Cole Nat. Corp. v. State Bd. of Examiners, 57 N.J. 227, 271 A.2d 421 (1970); McKenna v. N.J. Highway Authority, 19 N.J. 270, 116 A.2d 29 (1955).

The Parole Board has broad but not unlimited discretionary powers. The pertinent legislation (N.J.S.A. 30:4--123.1 et seq.) sets forth guidelines and under our special constitutional structure (N.J.Const. art. VI, sec. 5, para. 4 (1947)) the Board's actions are always judicially reviewable for arbitrariness. See In re State In Interest of Steenback, Supra, 34 N.J. at 100--101, 167 A.2d 397; In re Smigelski, Supra, 30 N.J. at 527--528, 154 A.2d 1. The Legislature has directed the Board not to release on parole merely as a reward for good conduct but only if it is of the opinion that 'there is reasonable [58 N.J. 243] probability' that the prisoner will assume his proper and rightful place in society, without violation of law, and that his release 'is not incompatible with the welfare of society.' N.J.S.A. 30:4--123.14. The Department of Institutions and Agencies and the chief executive officers and staffs of the various correctional institutions are directed to cooperate and furnish reports with respect to the prisoner to the Board which, in turn, is directed to receive and maintain records (N.J.S.A. 30:4--123.17, 18) and to 'consider the merits of his parole' and make such 'investigation as it shall deem necessary and proper.' N.J.S.A....

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