J.K. v. N.J. State Parole Bd.

• Decision Date: 24 June 2021
• Docket Number: 084035,A-76 September Term 2019
• Citation: 252 A.3d 1052,247 N.J. 120
• Parties: J.K., Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
• Court: New Jersey Supreme Court

247 N.J. 120

252 A.3d 1052

J.K., Appellant,

v.NEW JERSEY STATE PAROLE BOARD, Respondent.

A-76 September Term 2019

084035

Supreme Court of New Jersey.

Argued January 19, 2021

Reargued April 26, 2021

Decided June 24, 2021

James H. Maynard, Morristown, argued the cause for appellant (Maynard Law Office, attorneys; James H. Maynard, on the briefs).

Jane C. Schuster, Assistant Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, Jane C. Schuster, of counsel and on the brief, and Deborah Hay, and Christopher C. Josephson, Deputy Attorneys General, on the briefs).

Stephanie A. Lutz, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Fletcher C. Duddy, Deputy Public Defender, of counsel, and Stephanie A. Lutz, of counsel and on the brief).

PER CURIAM

As part of his sentence in 2005 for attempting to lure a minor into a motor vehicle, petitioner J.K. was sentenced to Community Supervision for Life (CSL) in accordance with N.J.S.A. 2C:43-6.4. J.K. holds dual citizenship in the United States and Poland, where he was born and lived until moving as a child to New Jersey. In 2015, he petitioned the New Jersey State Parole Board (Parole Board or Board) for permission to change his residency from New Jersey back to Poland while remaining under the supervision of the Parole Board. His application to relocate to Poland was denied twice. Petitioner appeals the Appellate Division's affirmance of the Parole Board's second denial, which was based on the inadequacy of petitioner's submissions in support of his request.

An appeal such as this involves the application of the typical standard of appellate review of final agency action. That standard restricts the parties to issues raised below and the record created before the agency. This appeal has been complicated because the parties diverged from those tenets. The unorthodox handling of this matter on appeal will not distract from the manner in which this dispute should be resolved by this Court.

For the reasons expressed herein, we affirm the Appellate Division judgment that found appellant's submissions to the Parole Board inadequate to secure the relief sought. To the extent that J.K. represented to us that he has refined and updated his application to relocate to Poland while under continued supervision of the Parole Board, his recourse is before that Board, which has the necessary expertise to assess the quality of his new submissions under its Policy # 09.821, entitled "Offender Requests to Reside Outside of the United States of America." That policy sets forth an avenue for review and approval of requests by certain parolees to relocate to a foreign jurisdiction while under continued Board supervision.

We learned of the existence of that Policy only through the happenstance of petitioner's unearthing of it during the pendency of this appeal. Although the Attorney General argued before this Court that promulgating Policy # 09.821 is beyond the statutory authority of the Board, we reject the contention the Policy is unenforceable on that basis and therefore substantively invalid.¹ J.K. is free to submit materials in furtherance and support of his desire to relocate to Poland to the Board for review under its standards for continued Board supervision under Policy # 09.821, or regulations it may promulgate. In light of the policy's statutory validity, we decline to reach J.K.’s constitutional claims, which he has acknowledged were raised for the first time in his petition for certification, as well as a newly raised argument about noncompliance with rulemaking procedures.

I.

In 2005, J.K. was convicted of attempting to lure or entice a minor into a vehicle, contrary to N.J.S.A. 2C:13-6. The conviction resulted from a 2003 incident in which J.K. engaged in a sexually explicit online conversation with a child and attempted to lure the minor into his car with the intention of having sex. J.K. was sentenced to three years of probation followed by CSL, imposed pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23. He began serving CSL in 2008. Since then, J.K. has otherwise followed the conditions of CSL but for a 2013 incident, in which he pleaded guilty to violating a condition of CSL; it was discovered he was in possession of internet-capable devices and was active on social media. He was sentenced to thirty days in county jail.

In 2015, J.K. filed with the Parole Board a uniquely titled petition for "International Transfer of Community Supervision for Life," seeking to return to his home country of Poland. In support, J.K. provided the Board with a certification of his Polish citizenship, copies of his Polish passport, a letter from the Consulate General of Poland,² two uncertified letters from family members in Poland, and an uncertified letter from a prospective employer in Poland. The first family-member letter was from J.K.’s cousin, who indicated that she was fully aware of J.K.’s conviction, that J.K. could live with her, and that no minors lived at her residence. The second letter was from a different cousin, who stated that he would provide J.K. with any necessary social support. Finally, the prospective employer letter was from the owner of an agricultural facility in Poland and relayed an offer to employ J.K. The Board denied J.K.’s petition.

In an unpublished decision, the Appellate Division reversed the Board's denial and remanded the matter. The appellate court explained that recently, in J.S. v. State Parole Board, 452 N.J. Super. 1, 170 A.3d 956 (App. Div. 2017), a "near-identical matter" to this appeal, the Appellate Division reversed a decision by the Board. Applying J.S., the Appellate Division here reasoned that "the Board mistakenly interpreted J.K.’s application for transfer as a request for termination of CSL status." Accordingly, the appellate court held that because the Board "failed to consider whether [it] could supervise or monitor J.K.’s compliance with the conditions of CSL or impose special conditions if he was permitted to relocate to Poland," the Board's denial of J.K.’s petition was arbitrary.

Following the Appellate Division's order, in an October 6, 2017 letter, the Board requested from J.K. an "up-to-date transfer application," and advised J.K.’s attorney that, "should a transfer application be submitted[,] the application should include a certification/affidavit of the party(ies) who intend to provide [J.K.] with a residence and by the employer/company that intends to offer [J.K.] employment." The Board also requested that J.K. explain how his supervision could be maintained, particularly in "such areas as reporting, change of residence, change of employment, counseling, urine monitoring, notification of an arrest and travel outside of Poland." The Board also asked for an English translation of any documents written in Polish.

On August 6, 2018, J.K. submitted a second transfer application, but that application was also found lacking. The following month, the Board alerted J.K. that his application was missing the requested documentation listed in its October 6, 2017 letter. The Board advised that

[t]he documents attached as exhibits to [J.K.’s] petition [were] basically the same letters that were provided in 2015 and are not sufficient as a certification/affidavit. ... [T]here is no attestation on the documents that the signatures are actually those of the person signing the respective document. ... [T]he letter from the intended employer, who reports to be the owner of the company, is not on formal letterhead of the named company. ... The petition does not address who will provide such [sex offender] counseling ... and whether the State Parole Board will be provided with periodic reports/evaluations. ... The petition does not address who will provide urine monitoring; how same will be performed; what will happen if [J.K.] should test positive for substance use; whether a contested positive urine sample will be tested at a laboratory; and whether the State Parole Board will be informed of same.

As the petition focuses on why good cause exists to permit [J.K.] to transfer to the [R]epublic of Poland and does not address how [J.K.] intends to continue compliance with the conditions of supervision ... the petition is deficient and will, therefore, not be presented for Board panel consideration until the deficiencies are addressed.

J.K.’s counsel responded to the Board's letter by requesting that J.K.’s application be submitted to the Board as is. J.K. refused to provide the requested material deemed necessary to the Board's review. Regarding the deficiencies that the Board had pointed out, counsel replied that the Board "did not indicate any legal authority requiring any particular documentation as legally necessary to support an international transfer of residence while subject to CSL." Accordingly, counsel would not provide the requested information, asserting that J.K.’s "application cannot be deficient in the absence of governing regulations and associated guidelines that stipulate the required contents of such an application."

On October 31, 2018, a two-member Board panel denied J.K.’s transfer application. J.K. filed an administrative appeal, and the Board affirmed the denial, finding that J.K. "provided the same arguments as noted [in his previous petition] and therefore, this appeal contains no information that was not previously considered." The Board determined that "the record is devoid of any information on which to assess the supervising or monitoring of [J.K.’s] compliance with the conditions of [CSL] or the imposition of special conditions if he was permitted to relocate to Poland."

J.K. appealed, arguing that the denial of his new application was arbitrary and capricious and that the denial of an international relocation request cannot be based on the...