Opinion
DOCKET NO. A-4841-12T2
03-24-2015
J.K., Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, of counsel and on the brief). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the New Jersey State Parole Board. James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, of counsel and on the brief). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief). PER CURIAM
In this appeal, petitioner J.K., who is subject to parole supervision for life, would have us consider the propriety of a condition that his employer be notified of his conviction; he also complains of the procedure utilized to adopt this condition. Because petitioner is no longer employed by the same employer and because the Parole Board has represented that petitioner will be given notice and an opportunity to be heard if the Board believes a future employer should be notified, we conclude the appeal is moot.
In 2005, petitioner was convicted of third-degree attempting to lure or entice a minor into a motor vehicle, N.J.S.A. 2C:13-6, and sentenced to a three-year probationary term, subject to, among other things, his compliance with Megan's Law provisions and community supervision for life (now known as "parole supervision for life"). Prior and subsequent to his conviction, petitioner was employed with a company in the field of clinical diagnostics; his duties included authoring, validating, disseminating and maintaining clinical information related to pharmacological testing. Petitioner's position did not give him access to nor otherwise require that he handle drugs or pharmacological substances. In fact, the employer is not a pharmaceutical company nor does it partner with any pharmaceutical company. The employer maintains a full-time security staff and the premises are monitored at all times by cameras.
On January 22, 2013, petitioner received from the Parole Board "a notice with a justification" for the imposition of the special condition of employer notification. The parole officer gave the following reason:
During a recent home visit[,] [petitioner] was found to be in possession of several controlled substances without a valid prescription. He had documents on how to smuggle items, was doing research on removing acetaminophen from Vicodin and he left the country [without] parole officer approval. [Petitioner] has a history of non[-]compliance. He also used the internet in the commission of the commitment offense. Imposition of this condition i[s] necessary as [petitioner] is trained as a pharmacist and [] works for a pharmaceutical firm. He may have access to controlled substances, substance analogs, and precursor chemicals. Employer notification will help the employer install proper safeguards to help [petitioner] avoid any high risk activities that could lead to a violation or a new offense[].Petitioner objected and filed a certification with the Parole Board.
On March 12, 2013, petitioner received an amended notice. Although recognizing the employment did not provide petitioner with access to drugs, the parole officer restated the justification for this special condition in the following way:
Employer notification would also assist with ensuring that compliance is met with the Internet restrictive special condition. [Petitioner] is reporting that he can work from home (on a computer not connected to
any employer monitoring system), however he was found to recently be in serious violation of the "no social networking" condition and the computer/pornography related special conditions. A "no computer/Internet" condition has since been imposed due to [petitioner's] recent violations of supervision and CSL charges. He has been recently working from home, but also has a computer restriction at this time. Employer notification would permit an employer to establish parameters to reduce risk of opportunities of re-offense. [Petitioner's] offense involved meeting a 12 year old girl online and arranging to meet for sexual purposes. The victim alleges anal, oral and vaginal sex with [petitioner]. [Petitioner] failed a polygraph examination when tested regarding his denial of the sexual activity. [Petitioner] has advised his new GPS officer that he must travel out of state for employment. This has never been discussed . . . while holding the same employment, which leads the Division of Parole to believe he has been violating the condition requiring notification/approval for travel out of state. It is also noted that [petitioner] was recently charged with a CSL violation for leaving the country without authorization contributing to his current placement in the Sex Offender GPS Monitoring Program. [Petitioner's] employer would also need to provide verification that his out of state travel is in fact required for employment. [Petitioner's] recent unapproved out of country travel, admissions for travel out of state without Parole approval and the material discovered in his home detailing drug smuggling is of concern. In addition, [petitioner] continues to self-report his job functions, which is also of concern as he has had a history of being untruthful with the Division of Parole.Petitioner again objected and responded in detail with a certification, exhibits, and his attorney's legal memorandum. Petitioner also sought a turnover of all documents, including polygraph results and charts referred to in the statement of justification quoted above.
On April 10, 2013, the adult panel affirmed, without explanation, the employer notification condition. By letter dated April 12, 2013, the Parole Board's counsel wrote to petitioner's counsel to advise the request for a turnover of records relating to all polygraph examinations had been denied because, in the Board's view, those records are "confidential" and "not subject to disclosure."
Petitioner filed an administrative appeal; a stay of employer notification was granted pending the Board's decision. On May 29, 2013, the Board issued a final agency decision that rejected: petitioner's arguments on the merits; his request for discovery; and his application for a continued stay of employer pending appeal to this court.
This court and the Supreme Court denied petitioner's motions for a stay pending appeal.
I. [PETITIONER'S] EMPLOYER SHOULD NOT HAVE BEEN NOTIFIED, AS [PETITIONER] HAD PROVIDED ADEQUATE INFORMATION TO THE NEW JERSEY STATE PAROLE BOARD.
II. MEGAN'S LAW MUST CONTROL THE [PAROLE SUPERVISION FOR LIFE] SPECIAL CONDITION OF "PUBLIC/EMPLOYER NOTIFICATION.["]The Board responded to the merits but also argues the appeal has been rendered moot because employer notification occurred once we denied petitioner's motion for a stay.
III. EMPLOYER NOTIFICATION SERVES NEITHER OF THE LEGISLATURE'S GOALS FOR [PAROLE SUPERVISION FOR LIFE]: 1) TO PROTECT THE PUBLIC AND 2) TO FOSTER [PETITIONER'S] REHABILITATION.
IV. [PETITIONER] SHOULD BE PROVIDED WITH A COPY OF HIS POLYGRAPH EXAMINATION AND CHARTS, AS THE PAROLE BOARD IS RELYING ON SAME FOR THE IMPOSITION OF THE SPECIAL CONDITION.
We agree the matter is now moot not only because the employer was notified but also because petitioner voluntarily ended the employment relationship. To be clear, the matter would not be moot if the decision under review meant that every future employer of the petitioner would be notified; in that circumstance the decision in question would continue to pose consequences for petitioner. But we understand the reach of the condition was limited solely to this particular employer. At oral argument, the Board's attorney represented that if, in the future, a parole officer believed another employer should be notified, petitioner will again be given notice and an opportunity to be heard before that employer receives notice. The procedures followed here demonstrate that petitioner will also — in the event of some future imposition of a similar condition — have the opportunity to seek a stay from the Board and from this court before notification actually occurs. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222 (2008). Until similar circumstances arise — if ever — the issues presented are purely academic and petitioner will be able to present them in the future; at present, the Board's actions have no consequence. In re Geraghty, 68 N.J. 209, 212 (1975); see also De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (recognizing "courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot"); Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (holding that "judicial power is to be exercised only when a party is immediately threatened with harm"). To be sure, the issues raised are important, but they are capable of repetition without evading review. De Vesa, supra, 134 N.J. at 428.
Petitioner advised in his reply brief that he "was forced to terminate his employment due to the fact that he had an upcoming sentencing hearing for a violation" of parole supervision for life that would likely have ended his employment due to his anticipated incarceration.
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Appeal dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION