In re P.D., A-94 September Term 2018

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtJUSTICE PATTERSON delivered the opinion of the Court.
Citation236 A.3d 885,243 N.J. 553
Parties In the MATTER OF the Civil Commitment of P.D.
Decision Date11 August 2020
Docket NumberA-94 September Term 2018,083027

243 N.J. 553
236 A.3d 885

In the MATTER OF the Civil Commitment of P.D.

A-94 September Term 2018

Supreme Court of New Jersey.

Argued January 7, 2020
Decided August 11, 2020
Revised September 9, 2020

Susan Remis Silver, Assistant Deputy Public Defender, argued the cause on behalf of appellant P.D. (Joseph E. Krakora, Public Defender, attorney; Susan Remis Silver, on the briefs).

Stephen Slocum, Deputy Attorney General, argued the cause on behalf of respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Stephen Slocum, on the briefs).

Karen Thompson argued the cause on behalf of amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Karen Thompson, Alexander Shalom, and Jeanne LoCicero, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

236 A.3d 888
243 N.J. 557

In this appeal, the Court considers whether the State must provide discovery to a person facing civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

Appellant P.D., whom the State seeks to civilly commit under the SVPA, served interrogatories on the State and requested documents in accordance with Rule 4:10-1, Rule 4:17-1, and Rule 4:18-1 -- court rules that govern discovery in civil proceedings generally. The State, which had provided documents to P.D. in accordance with its standard practice in SVPA proceedings, declined to answer the interrogatories or produce documents in response to P.D.’s request. P.D. filed a motion to compel discovery. The trial judge denied the motion, and the Appellate Division denied P.D.’s motion for leave to appeal.

We granted leave to appeal and affirm the trial judge's determination. We agree with the trial judge that a person facing a civil

243 N.J. 558

commitment hearing under the SVPA may not take discovery under Rule 4:10-1, Rule 4:17-1, or Rule 4:18-1. The discovery permitted by those rules is not authorized by the SVPA and cannot be accomplished on the expedited schedule that the statute prescribes.

We hold, however, that based on the terms of the SVPA, a person subject to an SVPA civil commitment hearing is entitled to limited discovery focused on the elements of the State's burden of proof. We therefore adopt a new court rule in which we enumerate the categories of documents subject to discovery in an SVPA proceeding and set forth the requirements for the reports of the State's experts.




On August 18, 2017, pursuant to N.J.S.A. 30:4-27.28(c), the State filed a petition to civilly commit P.D., a forty-eight-year-old inmate at Northern State Prison.

In its petition, the State relied on P.D.’s conviction for an offense that qualified as a "sexually violent offense" as defined in N.J.S.A. 30:4-27.26 : P.D.’s 2009 conviction for second-degree sexual assault by force or coercion with no serious injury, contrary to N.J.S.A. 2C:14-2(c)(1), in which the victim was the fifteen-year-old daughter of P.D.’s girlfriend. The State also relied on P.D.’s 2005 conviction for third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4, in which the victim was P.D.’s fourteen-year-old daughter; a 1993 charge of aggravated sexual assault with a weapon, contrary to N.J.S.A. 2C:14-2(a)(4), that was dismissed as part of a plea agreement; and two non-sexual offenses.

Pursuant to N.J.S.A. 30:4-27.28(c), the State submitted two clinical certificates, each prepared by a psychiatrist who had

243 N.J. 559

evaluated P.D. Both psychiatrists opined that P.D. suffered from a mental abnormality or personality disorder that made him "likely to engage in acts of

236 A.3d 889

sexual violence if not confined to a secure facility for control, care and treatment."

On August 28, 2017, the trial court entered an order temporarily civilly committing P.D. to the Special Treatment Unit (STU). The court appointed the Office of the Public Defender to represent P.D. and ordered that

the Public Defender shall have the right to inspect and copy all records relating to [P.D.’s] criminal history, psychiatric history, care and treatment, and mental abnormality including the full clinical record from the agency with jurisdiction, the short-term care facility, special psychiatric hospital, psychiatric facility, or institution where the individual was confined and the State of New Jersey Special Treatment Unit, on notice to the Office of the Attorney General and the facility from which the records are sought ....

The court scheduled a final hearing on "the issue of the continuing need for [P.D.’s] involuntary commitment as a sexually violent predator" for September 18, 2017.


Following his temporary civil commitment, P.D. "knowingly and voluntarily" waived his right under the SVPA to a court hearing within twenty days of the court's temporary commitment order and consented to a hearing date beyond the twenty-day period. According to P.D.’s counsel's certification, P.D. and his counsel decided to submit interrogatories to prepare for depositions "as to [the State's experts’] reasons for concluding that P.D. required commitment under the SVPA."

Relying on Rule 4:10-1, which enumerates the discovery devices available in civil cases, and Rules 4:17 and 4:18, the general civil court rules governing interrogatories and requests for discovery and inspection of documents, P.D.’s counsel propounded interrogatories to the State. The interrogatories sought (1) identification of the State's fact and expert witnesses; (2) a summary of the facts to which any fact witness for the State would testify; (3) information about the State's expert witnesses, including a detailed description

243 N.J. 560

of each expert's qualifications, a list and copies of all the expert's publications, a summary of "the substance and conclusions as to which" each expert was expected to testify and "the bases for each such conclusion and opinion," identification of all documents relied on by each expert in forming the opinion, and copies of any reports or documents prepared by or on behalf of each such expert "for this suit"; (4) copies of "all materials given to employees and consultants for the State for the purpose of conducting forensic evaluations," including but not limited to manuals, policies and procedures and training materials for conducting evaluations; (5) disclosure of "any process of review either formal or informal that occurs after the evaluator has completed his or her report but before the report is released," including five enumerated categories of information on such a review process; (6) information about each expert's risk assessment methods, including the source of the method, any testing of the method, copies of all studies in which the method was tested, the peer-review status of any such study, the known rate of error for the method and how the error rate was derived, and, if the method involves discretion by the expert, any standards that guide or control the exercise of that discretion; (7) identification by initials of "all residents ... who have been released from the [STU] since its inception in 1999 to the community," with each resident's date of temporary commitment, civil commitment and discharge, details about the discharge of each resident, information about each resident's treatment at the STU, and information as

236 A.3d 890

to whether the State consented to a court order ordering discharge planning for that resident; (8) for each resident released from the STU since 1999, identification of the State's experts who produced reports for the court hearings at which the individual was discharged and two preceding hearings, and a statement of each expert's conclusion on risk and the individual's phase of treatment at the time of each expert's report; and (9) identification by initials of any resident released from the STU since 1999 who was returned to the STU, with detailed information as to the reasons for any such resident's return.

243 N.J. 561

The State advised P.D. that it did not intend to answer his interrogatories.



P.D. filed a motion to compel discovery, arguing that Rule 4:10-1 applies in civil commitment proceedings under the SVPA, and that he was entitled to propound interrogatories and seek other forms of discovery pursuant to that rule. The State opposed the motion, arguing that -- consistent with the expedited schedule for SVPA commitment hearings -- it has provided specific categories of documents, not general responses to discovery, during the twenty years in which the SVPA has been in effect.

The trial court denied P.D.’s motion to compel discovery. It observed that when the Legislature enumerated the rights of persons subject to involuntary commitment under the...

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