In the Matter of the Civil Commitment of P.D. (083027)(Essex County & Statewide) ( 2020 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
In the Matter of the Civil Commitment of P.D. (A-94-18) (083027)
Argued January 7, 2020 -- Decided August 11, 2020
PATTERSON, J., writing for the Court.
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.
In August 2017, the State filed a petition to civilly commit P.D., relying 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, and other offenses. The State submitted two clinical certificates
from psychiatrists who opined that P.D. suffered from a mental abnormality or
personality disorder that made him “likely to engage in acts of sexual violence if not
confined to a secure facility for control, care and treatment.” The trial court entered an
order temporarily civilly committing P.D. to the Special Treatment Unit. P.D. waived his
right under the SVPA to a court hearing within twenty days of the court’s temporary
commitment order.
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 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, which the trial court denied. The court
found no support for P.D.’s contention that a person facing an SVPA commitment
hearing may seek discovery under the general civil discovery rule, Rule 4:10-1, or other
rules governing civil cases. The Appellate Division denied P.D.’s motion for leave to
appeal the trial court’s decision.
The Court granted leave to appeal. 238 N.J. 503 (2019).
HELD: A person facing a civil 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
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those rules is not authorized by the SVPA and cannot be accomplished on the expedited
schedule that the statute prescribes. However, 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. The Court therefore adopts a new court rule
in which it enumerates the categories of documents subject to discovery in an SVPA
proceeding and sets forth the requirements for the reports of the State’s experts.
1. The SVPA imposes on the State the burden to prove three elements by clear and
convincing evidence: (1) that the individual has been convicted of a sexually violent
offense; (2) that he suffers from a mental abnormality or personality disorder; and (3) that
as a result of his psychiatric abnormality or disorder, it is highly likely that the individual
will not control his or her sexually violent behavior and will reoffend. The State’s expert
testimony and the risk assessment instruments on which the experts rely comprise the
core of the State’s proofs in a typical SVPA civil commitment hearing and are often the
pivotal proofs on the question whether the individual is highly likely to offend again.
(pp. 10-17)
2. As N.J.S.A. 30:4-27.29 and -27.30 make clear, the Legislature intended that our courts
conduct SVPA civil commitment hearings expeditiously. The parties to an SVPA
commitment hearing cannot proceed under Rule 4:10-1, Rule 4:17-1, and Rule 4:18-1, let
alone use the other forms of discovery allowed under the civil rules, without delaying the
hearing for months or even years. Accordingly, P.D. is not entitled to discovery under
the civil discovery rules. The Court concurs with P.D. that Rule 4:74-7 does not govern
civil commitment proceedings under the SVPA. The limited discovery available under
Rule 4:74-7 is focused on the terms of the general civil commitment statute, not that of
the SVPA, and the Rule was not amended after the SVPA was enacted to apply to that
statute. (pp. 18-20)
3. Although a person facing an SVPA civil commitment hearing may not obtain
discovery pursuant to the civil discovery rules, the Court considers limited and
expeditious sharing of information by the State to be essential to the person’s meaningful
exercise of the “right to present evidence” and “right to cross-examine witnesses” in
defense of the State’s application for civil commitment, as guaranteed by N.J.S.A. 30:4-
27.31(c) and (d). The Court views the State’s pre-hearing discovery obligation to consist
of the exchange of two categories of information: (1) the production of documents in its
possession, custody or control relating to the history and treatment of the person whose
civil commitment is at issue; and (2) the service of expert reports that fully disclose the
basis for the expert’s opinion regarding the person’s mental abnormality or personality
disorder and the likelihood that the person will reoffend. (pp. 20-21)
4. The State represented that shortly after it initiates a proceeding for civil commitment
pursuant to the SVPA, it immediately produces all documents in its possession relating to
the person’s criminal history, incarceration, treatment, and the basis for civil
2
commitment. In combination with disclosures concerning the State’s experts, those
enumerated categories of documents enable a person facing an SVPA commitment
hearing to present evidence and counter the State’s proofs. Those documents go to the
heart of the State’s burden of proof by clear and convincing evidence. (pp. 21-22)
5. The State’s experts’ reports should fully disclose the substance and foundation of the
expert’s opinion in advance of the hearing, and, in combination with the expert’s CV,
should set forth the expert’s qualifications to render the opinion. The report should
contain a complete statement of the expert’s opinion regarding the need for civil
commitment, and the basis for that opinion. The expert should state any diagnosis
relevant to the opinion and explain the basis for each diagnosis. If the expert has utilized
a risk assessment instrument that has been deemed reliable and admissible in a decision
by this Court or the Appellate Division, the report need not generally establish the
reliability of that risk assessment instrument. However, the expert must identify any risk
assessment instrument used in the evaluation, address any relevant static and dynamic
factors, and summarize any findings with respect to the likelihood that the person will
reoffend. An individual subject to civil commitment who contends that the State’s expert
report is deficient may challenge that report under the net opinion rule or other relevant
grounds. (pp. 22-23)
6. In a given case, discovery other than the discovery described above must be sought in
a motion filed with the trial court on notice to the State, on a showing of exceptional
circumstances. The court, in its discretion, may enter an order granting or denying the
person’s application to take such additional discovery. (pp. 23-24)
7. The Court exercises its rulemaking authority to promulgate a rule limited to pre-
hearing discovery by the individual subject to civil commitment under the SVPA as
discussed above, effective thirty days after the date of this decision. (pp. 24-26)
The trial court’s decision is AFFIRMED, and the matter is REMANDED to
the trial court.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.
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SUPREME COURT OF NEW JERSEY
A-94 September Term 2018
083027
In the Matter of the Civil Commitment
of P.D.
On appeal from the Superior Court,
Appellate Division.
Argued Decided
January 7, 2020 August 11, 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.
1
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 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
2
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.
I.
A.
1.
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.
3
Pursuant to N.J.S.A. 30:4-27.28(c), the State submitted two clinical
certificates, each prepared by a psychiatrist who had 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 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.
2.
Following his temporary civil commitment, P.D. “knowingly and
voluntarily” waived his right under the SVPA to a court hearing within twenty
4
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 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
5
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 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
6
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.
The State advised P.D. that it did not intend to answer his
interrogatories.
B.
1.
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 SVPA, see N.J.S.A. 30:4-27.31, it did not
include a right to pre-hearing discovery. The trial court noted that counsel for
individuals subject to SVPA commitment routinely conduct effective cross-
examination of the State’s experts without the benefit of broad discovery.
7
The trial court stated that Rule 4:74-7(d) strictly limits the right to
discovery in civil commitment proceedings pursuant to N.J.S.A. 30:4-27.1
to -27.11, and that those proceedings, like civil commitment under the SVPA,
must be conducted on an expedited basis. It found no support for P.D.’s
contention that a person facing an SVPA commitment hearing may seek
discovery under the general civil discovery rule, Rule 4:10-1, or other rules
governing civil cases. Finally, the trial court addressed the particularly
onerous burden that would be imposed if the State were compelled to respond
to P.D.’s inquiries about SVPA commitment proceedings other than his own.
2.
P.D. moved for leave to appeal the trial court’s decision. The Appellate
Division denied his motion.
3.
P.D. filed a motion for leave to appeal before this Court. We granted
leave to appeal, 238 N.J. 503 (2019), and granted the application of the
American Civil Liberties Union of New Jersey (ACLU) to participate as
amicus curiae.
8
II.
A.
P.D. contends that persons subject to SVPA commitment proceedings
have the same right as other civil litigants to invoke the general civil discovery
rules. He asserts that Rule 4:74-7 applies only to general civil commitment
hearings under N.J.S.A. 30:4-27.12, not to SVPA commitment hearings, and
that Rules 4:10-1 and -2 thus govern SVPA commitment hearings. P.D. argues
that he is entitled to explore the bases for the State’s experts’ opinions by
serving interrogatories and requesting documents. P.D. contends that he has a
particularly pressing need for the discovery because he faces his initial civil
commitment hearing, not an annual review hearing, and he must understand
why the State seeks commitment in order to have a realistic chance of
defeating the State’s application.
B.
The State counters that no right to take discovery in accordance with the
civil discovery rules has been recognized in the thousands of initial and annual
review commitment hearings conducted pursuant to the SVPA over more than
two decades. At oral argument, counsel for the State explained that as soon as
a petition for civil commitment under the SVPA is filed, the State immediately
provides the subject of that petition and counsel all documents relating to the
9
person’s criminal history, the person’s incarceration, any treatment provided to
the person, and the basis for the State’s application for the person’s civil
commitment. The State also represents that promptly after an expert for the
State completes the expert report, the State discloses to the person and counsel
that report and the expert’s curriculum vitae (CV). The State argues that it
thus expeditiously affords all persons facing civil commitment hearings the
materials relevant to the issues to be determined in those hearings.
C.
Amicus curiae ACLU argues that the State’s interest in protecting the
public from sexually violent predators does not outweigh the due process
interests of a person facing civil commitment and contends that P.D. has a
constitutional right to full discovery under Rule 4:10-1. It notes that although
the Legislature did not prescribe a right to discovery when it enacted the
SVPA, it did not prohibit discovery. The ACLU reasons that because the
SVPA affords to persons subject to commitment the right to present evidence,
it must afford them the right to collect evidence through discovery.
III.
A.
The trial court’s decision denying the discovery sought by P.D. was
premised on its interpretation of the SVPA. We review that legal
10
determination de novo. In re Civil Commitment of D.Y., 218 N.J. 359, 373
(2014); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
B.
When it enacted the SVPA in 1998, the Legislature recognized that the
existing statutory scheme for civil commitment was inadequate to address the
commitment of sexually violent predators. D.Y., 218 N.J. at 380 (citing
N.J.S.A. 30:4-27.25(b)). It found that “[t]he nature of the mental condition
from which a sexually violent predator may suffer may not always lend itself
to characterization under the existing statutory standard, although civil
commitment may nonetheless be warranted due to the danger the person may
pose to others as a result of the mental condition.” N.J.S.A. 30:4-27.25(b).
The Legislature found it “necessary to modify the involuntary civil
commitment process in recognition of the need for commitment of those
sexually violent predators who pose a danger to others should they be returned
to society.” N.J.S.A. 30:4-27.25(c).
The Legislature prescribed a streamlined process for SVPA civil
commitment. Under the SVPA provision that the State invoked in this case,
the Attorney General may seek the civil commitment of an inmate “scheduled
for release upon expiration of a maximum term of incarceration by submission
11
to the court of two clinical certificates for a sexually violent predator, at least
one of which is prepared by a psychiatrist.” N.J.S.A. 30:4-27.28(c). “[T]he
court shall immediately review” the documents submitted “in order to
determine whether there is probable cause to believe that the person is a
sexually violent predator.” N.J.S.A. 30:4-27.28(f). If, as in this matter, the
court finds “probable cause to believe that the person is a sexually violent
predator in need of involuntary commitment,” it must set a date for a final
hearing and temporarily commit the person at issue to a “secure facility
designated for the custody, care and treatment of sexually violent predators
pending the final hearing.” N.J.S.A. 30:4-27.28(g).
When a court enters an order of temporary commitment under N.J.S.A.
30:4-27.28, it schedules “a court hearing with respect to the issue of
continuing need for involuntary commitment as a sexually violent predator
within 20 days from the date of the temporary commitment order.” N.J.S.A.
30:4-27.29(a). The SVPA requires the State to provide notice of that hearing
to the person subject to civil commitment, “the person’s guardian if any, the
person’s next-of-kin, the person’s attorney, the agency with jurisdiction having
custody of the person and any other individual specified by the court.”
N.J.S.A. 30:4-27.30(a). The witnesses at the hearing must include “[a]
psychiatrist on the person’s treatment team who has conducted a personal
12
examination of the person” no more than five days before the hearing; that
psychiatrist “shall testify at the hearing to the clinical basis for the need for
involuntary commitment as a sexually violent predator.” N.J.S.A. 30:4-
27.30(b). “Other members of the person’s treatment team and any other
witness with relevant information . . . shall also be permitted to testify at the
hearing.” Ibid.
A person committed under the SVPA “shall be afforded an annual court
review hearing of the need for involuntary commitment as a sexually violent
predator.” N.J.S.A. 30:4-27.35. The annual review hearing, like the initial
hearing, is conducted in accordance with N.J.S.A. 30:4-27.30. Ibid.
N.J.S.A. 30:4-27.31 confers on a person subject to involuntary
commitment as a sexually violent predator the following rights at the court
hearing:
a. The right to be represented by counsel or, if
indigent, by appointed counsel;
b. The right to be present at the court hearing unless
the court determines that because of the person’s
conduct at the court hearing the proceeding cannot
reasonably continue while the person is present;
c. The right to present evidence;
d. The right to cross-examine witnesses; and
e. The right to a hearing in camera.
[N.J.S.A. 30:4-27.31(a) to (e).]
13
At the hearing, the court must determine whether the person at issue is a
“sexually violent predator” for purposes of the SVPA. The Legislature defined
the term “sexually violent predator” to denote
a person who has been convicted, adjudicated
delinquent or found not guilty by reason of insanity for
commission of a sexually violent offense, or has been
charged with a sexually violent offense but found to be
incompetent to stand trial, and suffers from a mental
abnormality or personality disorder that makes the
person likely to engage in acts of sexual violence if not
confined in a secure facility for control, care and
treatment.
[N.J.S.A. 30:4-27.26.]
The Legislature defined the phrase “[l]ikely to engage in acts of sexual
violence” to mean that “the propensity of a person to commit acts of sexual
violence is of such a degree as to pose a threat to the health and safety of
others.” Ibid.
Addressing a due process challenge to the SVPA, we held that a person
subject to an SVPA civil commitment proceeding may be considered to “pose
a threat to the health and safety of others,” as that phrase appears in the SVPA,
“if he or she were found, by clear and convincing evidence, to have serious
difficulty in controlling his or her harmful behavior such that it is highly likely
that the individual will not control his or her sexually violent behavior and will
14
reoffend.” In re Commitment of W.Z., 173 N.J. 109, 130 (2002) (emphasis
added).
Thus construed, the SVPA imposes on the State the burden to prove
three elements by clear and convincing evidence:
(1) that the individual has been convicted of a sexually
violent offense; (2) that he suffers from a mental
abnormality or personality disorder; and (3) that as a
result of his psychiatric abnormality or disorder, “it is
highly likely that the individual will not control his or
her sexually violent behavior and will reoffend.”
[In re Civil Commitment of R.F., 217 N.J. 152, 173
(2014) (citations omitted) (quoting W.Z., 173 N.J. at
130).]
To meet its burden under the SVPA, the State typically presents the
testimony of experts who opine on the likelihood that the person subject to
civil commitment will reoffend. Those experts routinely rely on actuarial
assessment instruments, “developed to assess a sex offender’s risk of reoffense
by comparing him or her to the risk characteristics of groups of other sex
offenders monitored for recidivism.” W.Z., 173 N.J. at 133. Those assessment
instruments “mainly measure static factors,” which “are historical facts about
the offender which do not change.” In re Commitment of R.S., 339 N.J. Super.
507, 517 (App. Div. 2001), aff’d 173 N.J. 134, 137 (2002). In contrast,
dynamic factors are “elements which can be modified over time.” In re
15
Commitment of J.P., 339 N.J. Super. 443, 451 (App. Div. 2001). As the
Appellate Division commented in a decision regarding the Attorney General’s
sex-offender classification guidelines for tiering under Megan’s Law, N.J.S.A.
2C:7-1 to -23, the Registrant Risk Assessment Scale (RRAS), “[u]nlike the
immutable static factors, nature and seriousness of the offense, the dynamic
categories relate to the characteristics of the offender and community support
and are evidenced by current conditions as found at the time the registrant’s
risk to re-offend is assessed.” In re H.M., 343 N.J. Super. 219, 223 (App. Div.
2001).
Applying the reliability standard of Frye v. United States, 293 F. 1013,
1014 (D.C. Cir. 1923), we found certain actuarial risk assessment instruments
“admissible in evidence in a civil commitment proceeding under the SVPA
when such tools are used in the formation of the basis for a testifying expert’s
opinion concerning the future dangerousness of a sex offender.” In re
Commitment of R.S., 173 N.J. 134, 137 (2002); see also W.Z., 173 N.J. at 133
(observing that the Court’s holding in R.S. “requires that we reject W.Z.’s
contentions concerning the unreliability of those actuarial instruments”); In re
Civil Commitment of A.Y., 458 N.J. Super. 147, 172 (App. Div. 2019) (noting
the admissibility of actuarial risk assessment instruments under the Court’s
decisions in R.S. and W.Z); see also In re Registrant J.M., 167 N.J. 490, 499-
16
507 (2001) (rejecting challenge to weighting of static factors more heavily
than dynamic factors in RRAS under Megan’s Law).
The State’s expert testimony and the risk assessment instruments on
which the experts rely comprise the core of the State’s proofs in a typical
SVPA civil commitment hearing. See, e.g., In re Civil Commitment of J.M.B.,
395 N.J. Super. 69, 94 (App. Div. 2007) (describing State’s SVPA proofs to
include expert witnesses who “both testified that the documents they relied on
were commonly used by experts in the field of sex offender risk assessment”),
aff’d, 197 N.J. 563 (2009); In re Civil Commitment of D.L., 351 N.J. Super.
77, 90 (App. Div. 2002) (noting that the State’s SVPA case “generally
consist[s] of extensive psychological or psychiatric testimony, as well as
evidence of actuarial risk assessments”); J.P., 339 N.J. Super. at 451-55
(discussing the State’s use of expert testimony and risk assessment tools at
SVPA commitment hearing); In re Commitment of W.Z., 339 N.J. Super. 549,
559-60 (App. Div. 2001) (summarizing the State’s SVPA commitment case to
include the “results of several actuarial risk assessment instruments” “to get as
much information as possible” on the individual), aff’d 173 N.J. 109 (2002).
Thus, the testimony of experts and the risk assessment instruments on which
they rely are often the pivotal proofs on the question whether the individual is
highly likely to offend again.
17
C.
Against that backdrop, we consider whether the discovery available
under Rule 4:10-1, Rule 4:17-1, and Rule 4:18-1 is consonant with the
procedural framework that the Legislature prescribed in N.J.S.A. 30:4-27.29
and -27.30.
As N.J.S.A. 30:4-27.29 and -27.30 make clear, the Legislature intended
that our courts conduct SVPA civil commitment hearings expeditiously.
Although the person facing commitment may waive N.J.S.A. 30:4-27.29(a)’s
twenty-day deadline for a hearing date as P.D. did in this matter, the
Legislature clearly did not envision that the parties in SVPA civil commitment
cases would take months to prepare for the court hearing. Indeed, such a
protracted schedule would interfere with the annual review procedure set forth
in N.J.S.A. 30:4-27.35.
The civil discovery that P.D. seeks pursuant to Rule 4:10-1, Rule 4:17-1,
and Rule 4:18-1 would extend the pre-hearing period far beyond its intended
parameters. Absent a court order limiting discovery, Rule 4:10-1 authorizes a
civil litigant to
obtain discovery by one or more of the following
methods: Depositions upon oral examination or written
questions; written interrogatories; production of
documents or things; permission to enter upon land or
other property, for inspection and other purposes;
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physical and mental examinations; and requests for
admissions. Unless the court orders otherwise under R.
4:10-3, the frequency of use of these methods is not
limited.
Neither of the specific discovery devices that P.D. seeks to invoke can
be utilized within the time frame that the Legislature prescribed. Rule 4:17-4
allows a party sixty days to answer interrogatories; the exception to that rule,
uniform interrogatories in certain cases under Rule 4:17-1(b)(2), also allows
for response periods far in excess of the SVPA’s twenty-day pre-hearing
period. Requests for production of documents served pursuant to Rule 4:18-1
must be responded to within thirty-five days of service. In civil cases,
deadlines to respond to discovery are often extended, and a party’s inquiry
under one form of discovery may lead to months or years of additional
discovery. The parties to an SVPA commitment hearing cannot proceed under
Rule 4:10-1, Rule 4:17-1, and Rule 4:18-1, let alone use the other forms of
discovery allowed under the civil rules, without delaying the hearing for
months or even years.
In short, the civil rules that P.D. seeks to use, unmentioned in the SVPA,
are incompatible with the Legislature’s intent that SVPA civil commitment
hearings take place on an expedited schedule. See N.J.S.A. 30:4-27.29 to -
27.30. Accordingly, P.D. is not entitled to discovery pursuant to Rule 4:10-1,
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Rule 4:17-1, Rule 4:18-1, or the other discovery devices available under the
civil discovery rules.
D.
We concur with P.D. that Rule 4:74-7 does not govern civil commitment
proceedings under the SVPA. As the Appellate Division observed, “[Rule
4:74-7] predates the SVPA and by its terms it applies to civil commitments
generally, incorporating the definitions in N.J.S.A. 30:4-27.2.” In re
Commitment of G.D., 358 N.J. Super. 310, 316 (App. Div. 2003). The limited
discovery available under Rule 4:74-7 is focused on the terms of the general
civil commitment statute, not that of the SVPA, and the Rule was not amended
after the SVPA was enacted to apply to that statute.
IV.
A.
1.
Although a person facing an SVPA civil commitment hearing may not
obtain discovery pursuant to the civil discovery rules, the SVPA does not
relieve the State of any obligation to provide discovery in advance of the
hearing. To the contrary, we consider limited and expeditious sharing of
information by the State to be essential to the person’s meaningful exercise of
the “right to present evidence” and “right to cross-examine witnesses” in
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defense of the State’s application for civil commitment, as guaranteed by
N.J.S.A. 30:4-27.31(c) and (d). 1
We thus view the State’s pre-hearing discovery obligation to consist of
the exchange of two categories of information: (1) the production of
documents in its possession, custody or control relating to the history and
treatment of the person whose civil commitment is at issue; and (2) the service
of expert reports that fully disclose the basis for the expert’s opinion regarding
the person’s mental abnormality or personality disorder and the likelihood that
the person will reoffend. See N.J.S.A. 30:4-27.26. We address each in turn.
2.
The State represented at oral argument that shortly after it initiates a
proceeding for civil commitment pursuant to the SVPA, it immediately
produces (1) all documents in its possession relating to the person’s criminal
history; (2) all documents in its possession relating to the person’s
incarceration; (3) all documents in its possession relating to the person’s
treatment, if any; and (4) all documents in its possession regarding the basis
1
We base our holding on our construction of the SVPA, and do not reach the
due process claims raised by P.D. See D.Y., 218 N.J. at 379 (“[W]e strive to
avoid reaching constitutional questions unless required to do so.” (quoting
Comm. to Recall Menendez v. Wells, 204 N.J. 79, 95 (2010))); Randolph
Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) (“Courts should
not reach a constitutional question unless its resolution is imperative to the
disposition of litigation.”).
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for civil commitment. The State indicated that it does not withhold documents
within those categories on relevance grounds.
In combination with disclosures concerning the State’s experts, those
enumerated categories of documents enable a person facing an SVPA
commitment hearing to present evidence and counter the State’s proofs. Those
documents go to the heart of the State’s burden of proof by clear and
convincing evidence; they address the State’s assertion that the person has
been convicted of a sexually violent offense, the question of a mental
abnormality or personality disorder, and the prospect that the person will
recidivate. See N.J.S.A. 30:4-27.26; R.F., 217 N.J. at 173.
3.
The State’s experts’ reports should fully disclose the substance and
foundation of the expert’s opinion in advance of the hearing. The report, in
combination with the expert’s CV, should set forth the expert’s qualifications
to render the opinion. The report should contain a complete statement of the
expert’s opinion regarding the need for civil commitment of the person in
question, and the basis for that opinion. The expert should state any diagnosis
relevant to the opinion and explain the basis for each diagnosis. The expert
should identify any risk assessment instrument used in the evaluation of the
person involved. If the expert has utilized a risk assessment instrument that
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has been deemed reliable and admissible in a decision by this Court or the
Appellate Division, the report need not generally establish the reliability of
that risk assessment instrument. However, the expert must identify any risk
assessment instrument used in the particular case, address any relevant static
and dynamic factors, and summarize any findings with respect to the
likelihood that the person will reoffend. See generally R.S., 173 N.J. at 137
(noting that an expert may rely on “actuarial as well as clinical information
when formulating an opinion concerning future dangerousness”).
An individual subject to civil commitment who contends that the State’s
expert report is deficient may challenge that report under the net opinion rule
or other relevant grounds. The net opinion rule “mandates that experts ‘be
able to identify the factual bases for their conclusions, explain their
methodology, and demonstrate that both the factual bases and the methodology
are reliable.’” Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Landrigan
v. Celotex Corp., 127 N.J. 404, 417 (1992)).
4.
In a given case, the person subject to civil commitment may seek
discovery other than the discovery described above in order to exercise the
right under N.J.S.A. 30:4-27.31 to present evidence and cross-examine
witnesses. Such additional discovery must be sought in a motion filed with the
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trial court on notice to the State, on a showing of exceptional circumstances.
The court, in its discretion, may enter an order granting or denying the
person’s application to take such additional discovery.
B.
As noted, no current court rule addresses the discovery that the State
should provide to a person facing civil commitment under the SVPA. We
exercise our rulemaking authority to promulgate a rule limited to pre-hearing
discovery by the individual subject to civil commitment under the SVPA.
The following rule shall be effective for SVPA proceedings thirty days
after the date of this decision:
Discovery by a Person Subject to Involuntary
Commitment Pursuant to the Sexually Violent Predator
Act
(a) Any rule, regulation or policy of
confidentiality notwithstanding, a person
subject to involuntary commitment pursuant
to the New Jersey Sexually Violent Predator
Act, N.J.S.A. 30:4-27.24 to -27.38, and the
person’s counsel, shall have the right to
inspect and copy the following documents, no
later than ten days before the court hearing
with respect to the issue of continuing need for
involuntary commitment as a sexually violent
predator:
1. all documents in the possession,
custody or control of the State relating
to the person’s criminal history;
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2. all documents in the possession,
custody or control of the State relating
to the person’s incarceration;
3. all documents in the possession,
custody or control of the State relating
to the person’s treatment, if any;
4. all documents in the possession,
custody or control of the State relating
to the basis for the State’s application
for the person’s civil commitment
pursuant to N.J.S.A. 30:4-27.29
to -27.32;
5. if the person is subject to an annual
review hearing pursuant to N.J.S.A. 30:4-
27.35, all documents in the possession,
custody or control of the State relating to
the person’s treatment and conduct while
committed to a facility designated for the
custody, care and treatment of sexually
violent predators;
6. names and addresses of each person
whom the State expects to call at the
civil commitment court hearing as an
expert witness, the expert’s
qualifications, and a copy of the
expert’s report. In the expert’s report,
the expert shall state the opinion,
explain the basis for that opinion,
identify any diagnosis relevant to the
opinion and the basis for that diagnosis,
identify any risk assessment instrument
that the expert has used in the
evaluation of the person, explain the
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manner in which the risk assessment
instrument was used in the particular
case, address any relevant static and
dynamic factors, and summarize any
findings with respect to the likelihood
that the person will engage in acts of
sexual violence if not confined to a
secure facility for control, care and
treatment.
(b) If the person whom the State seeks to civilly
commit pursuant to the SVPA seeks discovery
in addition to the discovery set forth above,
the person must proceed by motion on notice
to the State, which shall be granted only on a
showing of exceptional circumstances
V.
The trial court’s decision denying P.D.’s application for discovery
pursuant to Rule 4:10-1 is affirmed, and the matter is remanded to the trial
court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’s opinion.
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