STATE v. KLEMMER 237 N.J. Super. 32 (1989) 566 A.2d 836 . Superior Court of New Jersey, Law Division Burlington County. Decided February 16, 1989.
If no proper rules, no ID
Attorney(s) appearing for the Case
HAINES, A.J.S.C.
This opinion concludes that the Intoxicated Driver Resource Centers ("IDRCs") are operating without any valid rules of procedure, and therefore, deny due process to persons who are sentenced to them.
Keith Klemmer was charged with drunk driving in violation of N.J.S.A.39:4-50. On advice of counsel, he pled guilty before the Chesterfield Township Municipal Court. A mandatory minimum first offender sentence was imposed. The sentence included the statutory requirement that he spend 12 hours, over two days, at an Intoxicated Driver Resource Center and fulfill the conditions of any treatment program designed for him by the center.
Klemmer satisfied the 12-hour requirement and was then referred to the Mercer County Council on Alcoholism for further evaluation and direction as to participation in additional programs. Center personnel advised him that the referral was dictated by his background, age and involvement in construction work. At Mercer, after a brief exchange of questions, he was told that further counselling was required. He expressed his understanding that he was entitled to a further evaluation
[237 N.J. Super. 34]
Klemmer executed a written "contract" with the council. As to weekly AA meetings, it provided that "more may be required"; it also stated: "If additional assignments or treatment are called for, they must be completed for the client to be successfully released from the program." The agreement concluded: "For successful release from the program, all of the above criteria must be met. In addition, there must be a significant change in the client's attitude and behavior with regard to the use of alcohol and other drugs." Klemmer, after consulting an attorney, refused to comply with these program requirements.
As a result the IDRC forwarded a "noncompliance report" to Klemmer, the Division of Motor Vehicles and the Chesterfield Township Municipal Court. The Division, without further notice, in disregard of N.J.S.A. 39:5-30, N.J.S.A. 52:14B-11 and basic principles of due process, suspended his driver's license until he satisfied Bureau of Alcohol Countermeasures and IDRC requirements.
Klemmer, through counsel, applied here for the restoration of his license and a hearing with respect to the noncompliance report. This court, sitting as the Municipal Court of Chesterfield Township, issued an order reinstating the license and providing for the necessary hearing. It would have been improper for the municipal court judge, whose order subjected Klemmer to the IDRC proceedings, to consider the charge that his order had been violated. The non-compliance report, in effect, charged Klemmer with a contempt; if convicted, he would be imprisoned for two days. N.J.S.A. 39:4-50(b) provides that "failure to satisfy ... [IDRC] requirements shall result in a mandatory two-day term of imprisonment in a county jail" as well as suspension of driving privileges.
[237 N.J. Super. 35]
Questions were raised at the contempt hearing concerning the constitutionality of the IDRC statute and procedures. Since these claims challenged the validity of the original municipal court sentence, counsel for Klemmer, at the court's suggestion, filed a notice of appeal from that sentence. The State did not object to this procedure.1
Notice of the constitutional challenges was given to the Attorney General who elected not to appear. He relied upon the county prosecutor for the defense of Klemmer's claims.
A. The Mootness Question.
Klemmer, his expert witness and IDRC personnel testified in the contempt — post-conviction proceedings. Briefs and oral argument were considered. Some weeks after the completion of hearings and the draft of an opinion, the court, concerned that counsel had not fully appreciated the potential consequences of a failure to publish IDRC rules, offered counsel an opportunity to submit further briefs on that issue. Shortly thereafter the Bureau of Alcohol Countermeasures sent the following letter, dated January 17, 1989, to Klemmer:
A copy of this letter was sent to the court by the prosecutor with a covering letter which stated in part:
The statement that Klemmer had been offered a second opinion is contrary to the record. The initiation of the letter decision is not authorized by any procedural rule governing IDRCs, a circumstance of no moment in an ordinary setting. No notice of any reconsideration of the non-compliance ruling was given to the court or, apparently, to Klemmer. The exonerating conclusion was reached after this court offered counsel the opportunity to provide further briefs addressing the publication issue. In fact, the rules were not published and, as this opinion later holds, that failure is fatal to the State's position.
These circumstances are troublesome. The State now seeks a dismissal of the proceedings on the ground that they are moot. Its 11th-hour maneuver appears to be designed to prevent a decision on the merits, although the prosecutor represents the bureau's action as reflecting a genuine concern for the fair treatment of Klemmer. However, Klemmer, notwithstanding the volunteered generosity of the State, presses for a decision on the central issues. That decision, under all the circumstances of this case, is one that he is entitled to receive.
In the first place, granting the motion to moot the IDRC issues in this case would ignore the State's obligation of fairness. In criminal and quasi-criminal cases the State, acting through the prosecutor, must see that justice is done. State v. Grillo, 11 N.J. 173 , 184 (1952); RPC 3.8(a). In the present case, the State had two obligations: (1) to provide Klemmer with any relief to which he was entitled, and (2) to concede the unenforceability of its IDRC rules when that became apparent. Its first obligation to Klemmer was satisfied, though only in part, by its last minute letter. Its duty, however, was much
[237 N.J. Super. 37]
The Bureau of Alcohol Countermeasures does not control this controversy. Klemmer has attacked the validity of the sentence imposed upon him by a municipal court in the context of a judicial contempt proceeding brought by the State. That proceeding may not be dismissed without the consent of the court. R. 7:1 and R. 3:25-1. This court does not consent.
The bureau had no valid rules of procedure in force. Its exonerating action was taken without authority and was therefore a nullity. Klemmer's IDRC sentence was illegal. The IDRCs were operating without rules, and therefore, without due process. Klemmer served part of his sentence. He has the right to have that sentence corrected, the illegality erased. The rule, in a parole revocation setting, is set forth in Bd. of Trustees of Youth Correct Cent. v. Davis, 147 N.J.Super. 540 (1977):
[237 N.J. Super. 38]
The Prosecutor argues that Klemmer will suffer no future adverse effects from the unlawful sentence now that his non-compliance charge has been withdrawn. The argument relies upon Bd. of Trustees in which the court said:
Klemmer, however, like Davis, may be subjected to some future proceeding in which alcoholism plays a role. If so, his experience at the IDRC to which he was sentenced, especially the Mercer Council's requirement of further counselling and AA attendance, may provide adverse inferences. The "mootness" letter dismissing the non-compliance charge against Klemmer refers to him as a "borderline" case. He objects to that conclusion, which was reached without notice, supporting reasons or any opportunity for confrontation. He is entitled to have the IDRC record, including the "borderline" conclusion, expunged.
The validity of IDRC procedures is a matter of considerable public interest. As many as 25,000 convicted DWI offenders are sent to the centers annually. The courts utilize them every day. As our Supreme Court said in United Hunters Assn. of N.J., Inc. v. Adams, 36 N.J. 288 (1962): "The controversy is not moot, since the public problem persists." At 293. Furthermore, "a court may decide an issue even though the litigation has become moot, ... in the public interest." Busik v. Levine,
[237 N.J. Super. 39]
For all of these reasons this court concludes that the issues here are not moot and must be decided.
B. The Statute.
N.J.S.A. 39:4-50 provides that a person having a ten percent blood alcohol concentration while operating a motor vehicle shall be subject:
It also provides:
C. Rules and Regulations.
The New Jersey Department of Health deals with drunk driving responsibilities through its Division of Alcoholism. The Bureau of Alcohol Countermeasures, previously within the Department of Motor Vehicles, was transferred from that department to the Department of Health, pursuant to the requirements of N.J.S.A. 52:14D. The Intoxicated Driving Program Unit is the administrative unit of the IDRCs serviced by the Bureau of Alcohol Countermeasures.
N.J.S.A. 39:4-50 requires "the Director of the Division of Motor Vehicles ... [to] adopt rules and regulations pursuant to the `Administrative Procedure Act', P.L. 1968, c. 410 (C. 52:14B-1 et seq.), in order to effectuate the purposes of this subsection." The transfer of responsibilities from the Division
[237 N.J. Super. 41]
Rules covering IDRC procedures first appeared in a booklet entitled "Intoxicated Driver Resource Center Procedures Manual," dated October 1984. This manual was replaced by the Division of Alcoholism with a booklet entitled "Intoxicated Driver Resource Center Policies (1987)." The rules contained in these booklets not only have never been published in the New Jersey Register or the New Jersey Administrative Code but have been treated as confidential.
The 1987 booklet contains an "Introduction" which provides in part:
The booklet consists of 41 pages and sets forth extensive administrative rules which, among other things, cover the scheduling of "clients," evaluations, criteria and procedures for referrals, treatment programs, second opinions, appeals and non-compliance procedures. The booklet was not made available to Klemmer. A copy marked "confidential" was obtained for the purpose of this litigation through the prosecutor.
(1) The I.D.R.C. Procedures.
Convicted DWI offenders are given two notices setting forth the consequences of their conviction. One, signed by Klemmer in this case, contains I.D.R.C. information. It states:
[237 N.J. Super. 42]
After conviction, Klemmer reported to an IDRC which operated under the rules and procedures set forth in the 1987 booklet or "policy manual." Particular rules or policies are illuminating:
IDRCs are expensive. N.J.S.A. 39:4-50(b) requires a convicted DWI defendant to pay a fee of $80 "to the Alcohol Education, Rehabilitation and Enforcement Fund ... to support the Intoxicated Driving Program's Unit." A first offender attending an IDRC is assessed a per diem fee of $50, a second offender, $75. In an outpatient case, like Klemmer's, it is usual to require 16 once-a-week group experiences at a cost of $35 a session, or a total of $560. (Klemmer was told to participate in
[237 N.J. Super. 43]
(2) The Administrative Procedure Act.
The Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., provides for the adoption of rules by state agencies. A "state agency" is defined in N.J.S.A. 52:14B-2(a) as:
The Department of Health and its divisions, agencies and departments are therefore subject to the act.
N.J.S.A. 52:14B-4(d) provides:
A "rule" is defined in N.J.S.A. 52:14B-2(e) to mean "each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." The rules contained in the IDRC policy manual clearly fall within this definition and were required to comply with the Administrative Procedure Act, as N.J.S.A.39:4-50, the statute creating the IDRCs, expressly provides.
This conclusion is reinforced by the Appellate Division's opinion in Bd. of Ed. of City of Plainfield v. Cooperman, 209 N.J.Super. 174 (1986), aff'd but mvd. 105 N.J. 587 (1987), in which the court said:
See Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313 , 331 (1984), in which the Supreme Court set forth an analysis of rule making requirements.
[237 N.J. Super. 44]
N.J.S.A. 52:14B-7 requires publication of the New Jersey Register, a monthly bulletin, which is to set forth "(1) the text of all rules filed during the preceding month, and (2) such notices as shall have been submitted pursuant to this Act." Under certain circumstances, not applicable here, a publication of the rule may be omitted from the register, but an abbreviated notice is still required. The Director of the Office of Administrative Law is obliged to "compile, index, and publish a publication to be known as the `New Jersey Administrative Code' containing all effective rules adopted by each Agency." The IDRC rules do not appear in the New Jersey Administrative Code.
Not only does N.J.S.A. 52:14B-4(d) deny the validity of any rule which has not been adopted in substantial compliance with the Administrative Procedure Act, but N.J.S.A. 52:14B-5(b) also provides that no rule "shall be effective unless it has been deemed to be approved by the Legislature...."
N.J.S.A. 52:14B-4(d) states:
This limitation is not applicable when notice of the proposed adoption of a rule has not been given and the rule has never been published. See National Assn. of Metal Finishers v. Environmental Protection Agency,719 F.2d 624 , 638 (3 Cir.1983), cited in Bergen Pines Hosp. v. Dept. of Human Serv., 96 N.J. 456 , 475 (1984) (failure to comment after adequate notice and opportunity to comment). The limiting language of the
[237 N.J. Super. 45]
When an agency has failed to comply with the rule-making requirements of the Administrative Procedure Act, its rules must be set aside. Bd. of Ed. of City of Plainfield, supra, 209 N.J. Super. at 207-210.
Klemmer's challenge in this appeal is two pronged: he claims that (1) he was not guilty of noncompliance, and (2) the original sentence of the municipal court requiring him to participate in IDRC procedures was illegal. Both claims must be sustained. Since no effective IDRC rules were in place at the time of his conviction, he cannot be convicted of failure to abide by them and the sentence subjecting him to them violated due process. In Town Tobacconist v. Kimmelman, 94 N.J. 85 (1983), our Supreme Court held:
Here, the IDRC rules were, and are, nonexistent legally and in fact unavailable to those persons required to abide by them. They are therefore more offensive to constitutions than enactments which are only vague.
D. The Constitutional Claims.
Klemmer argues that the statute, N.J.S.A. 39:4-50, insofar as it relates to IDRCs, is unconstitutional. The argument rests on the contention that the statute delegates IDRC authority to a state agency without sufficient standards and safeguards. In addition, he claims that the IDRC rules themselves, regardless
[237 N.J. Super. 46]
These are substantial arguments. Courts, however, are to decide constitutional questions only when the decisions are necessary for the disposition of litigation. When a case can be disposed of on other grounds, constitutional questions should not be addressed. Ahto v. Weaver, 39 N.J. 418 (1963). This rule has been repeated in case upon case. Many are collected in 4 N.J. Digest, Constitutional Law, § 46. Klemmer's case has been disposed of on the basis of the publication — due process issue. No other constitutional claims need be considered.
Conclusion.
Klemmer's original sentence, insofar as it refers to IDRC requirements, is set aside. He is not guilty of any failure to comply with IDRC rules.
