RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0303-16T2 APPROVED FOR PUBLICATION
STATE OF NEW JERSEY June 19, 2017 IN THE INTEREST OF M.P. APPELLATE DIVISION _________________________________________
Argued May 9, 2017 – Decided June 19, 2017
Before Judges Messano, Espinosa and Grall.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-1625-16.
Patrick C. O'Hara, Jr., argued the cause for appellant M.P. (Del Vacchio O'Hara, P.C., attorneys; Mr. O'Hara, on the brief).
Christopher L.C. Kuberiet, First Assistant Prosecutor, argued the cause for respondent State of New Jersey (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Kuberiet, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
The State of New Jersey charged juvenile M.P. with conduct
which, if committed by an adult, would constitute second-degree
aggravated assault, N.J.S.A. 2C:12-1(b), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).1 M.P.
appeared with counsel before a Family Part judge in Middlesex
County for a preliminary hearing and subsequent detention
hearing.
Several days later, a probation officer requested the
prosecutor provide a copy of the police report because the
matter was being transferred to another vicinage. Apparently,
without notice to M.P.'s counsel or any further notice to the
prosecutor, the Presiding Judge of the Family Part (PJ) filed an
order transferring the matter to Somerset County.
The State moved to vacate the order. The prosecutor's
certification asserted that court staff provided only "a cryptic
reference to employee conflict." The prosecutor noted there had
been no contact with the victim of the alleged assault before
the transfer, in violation of the Crime Victim's Bill of Rights,
N.J.S.A. 52:4B-34 to -38. The prosecutor also referenced prior
juvenile matters involving M.P. for which venue was not
1 The complaint fails to state which specific subsection of N.J.S.A. 2C:12-1(b) the juvenile allegedly violated. The language of the complaint suggests N.J.S.A. 2C:12-1(b)(1) (causing or attempting to cause serious bodily injury (SBI)). This is consistent with the State's representations at oral argument that it will seek waiver of the Family Part's jurisdiction to pursue prosecution in the Criminal Division. See N.J.S.A. 2A:4A-26.1(c)(2)(g) (permitting waiver for second- degree aggravated assaults).
2 A-0303-16T2 transferred, and stated, on "information and belief," M.P.
objected to the transfer.
The parties appeared before the PJ for oral argument on the
State's motion. The prosecutor argued the State received no
explanation for the transfer of venue, which was not authorized
by statute or Court Rule. He stated the sole authority for the
transfer was N.J. Administrative Office of the Courts, Judiciary
Employee Policy #5-15, "Reporting Involvement in Litigation,"
(effective June 1, 2016) (the Policy). He further contended the
Policy permitted only the Assignment Judge (AJ) to transfer
venue. The prosecutor cited extensively to two of our
unpublished opinions and argued the transfer created hardships
for law enforcement and the alleged victim.
Defense counsel, who had represented M.P. since 2012, also
noted her objection to the transfer of venue. Counsel explained
that the juvenile's mother became "frantic" upon hearing of the
transfer, noting she and her son lived in Middlesex County, she
had a two-week old child and she could not "go back and forth to
Somerset County." Counsel further stated that the mother's
child support matter was initially transferred to Somerset
County, but that order was revoked after M.P.'s mother objected.
Defense counsel requested the judge hold a hearing to determine
3 A-0303-16T2 "if there is some way we can shield the [court] person from any
involvement with [M.P.'s] case."
The judge stated "that any lack of . . . communication"
regarding the transfer order was "not a matter of design." She
cited Rule 1:33-6(d) as providing authority for a PJ to enter
the transfer order. The judge explained that she followed the
Policy after receiving the confidential report of an employee,
and noted the Policy "insure[s] the continued integrity of the
judiciary in avoiding any actual [or] potential . . . appearance
of partiality or conflict of interest." The judge reserved
decision and subsequently filed the July 29, 2016 order denying
the State's motion.
In a written statement of reasons accompanying the order,
the judge explained a judiciary employee in the vicinage's Trial
Court Services Division submitted a confidential "Personal or
Family Member Involvement in Litigation form" to the Trial Court
Administrator (TCA). Citing various provisions of the Policy,
which we discuss in greater detail below, the judge stated she
and the TCA determined a transfer of venue was necessary "to
avoid any appearance of impropriety."
The judge explained the judiciary employee had access to
the Family Automated Case Tracking System (FACTS), which
permitted him or her to view information, including information
4 A-0303-16T2 that was confidential pursuant to N.J.S.A. 2A:4A-60. The judge
explained:
The Judiciary employee's function is to assist court users by providing information and assistance with court processes, handling court user complaints and inquiries, and providing information from court files, as appropriate. In that regard, consideration of preventative measures to ensure insulation or isolation of this employee would substantially impact the employee's functionality. Specifically, the employee's need to regularly access FACTS to perform his/her job prohibits restriction of FACTS access as a means to insulate the individual. Additionally, consideration of relocating the employee to an area removed from the Middlesex Family Courthouse, wherein a substantial segment of the public seeks access to the employee's services, would significantly hinder the access to and delivery of services by the Judiciary to the public.
The judge distinguished one of the unpublished decisions cited
by the prosecutor, noting it was a criminal case and
"distinguishable from a juvenile delinquency case in that it
does not implicate statutory confidentiality restrictions."
Lastly, the judge explained
procedural safeguards ordinarily attendant to adversarial proceedings are not employed in the area of administrative transfers as it is the Court that is vested with the authority and responsibility to maintain a high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases.
5 A-0303-16T2 The judge concluded transferring venue in this matter was
consistent with the Policy.
We granted M.P.'s motion for leave to appeal, which the
State supported. In the interim, on September 5, 2016, M.P. was
charged in another complaint with conduct which, if committed by
an adult, would constitute fourth-degree riot, N.J.S.A. 2C:33-
1(a)(1), and the disorderly persons offense of simple assault,
N.J.S.A. 2C:12-1(a). Without notice to the State or defense
counsel, the PJ entered an order on September 22 transferring
venue for the second complaint to Somerset County. No further
hearing occurred prior to entry of the order, and no statement
of reasons accompanied it.
We granted M.P.'s motion to expand the record to include
the September 22, 2016 order. The State did not object.
Counsel advised us at oral argument that M.P. has now been
charged with additional offense(s) as an adult, since he has
turned eighteen. As of the date of the argument, venue in that
matter had not been transferred. The prosecutor also indicated
the State continues to seek waiver of the initial juvenile
complaint to the Law Division.
M.P. argues the judge mistakenly exercised her discretion
by transferring venue over his objection. He contends that
pursuant to the Policy, only the AJ can order a transfer of
6 A-0303-16T2 venue, and, in this case, there was no indication the AJ had
delegated that responsibility to the PJ. He further argues the
PJ failed to consider his objection to the transfer, or N.J.S.A.
2A:4A-27, which provides, "[a]ny juvenile [fourteen] years of
age or older charged with delinquency may elect to have the case
transferred to the appropriate court having jurisdiction." M.P.
urges us to summarily reverse the orders under review. The
State agrees with M.P.'s position and reiterates the arguments
it raised in the Family Part.
We now reverse and remand the matter for further
proceedings consistent with this opinion.
I.
We begin by recognizing our Court Rules express a strong
presumption that venue shall lie in the county of a juvenile
defendant's domicile. Rule 5:19-1(a)(1) provides:
Juvenile delinquency complaints are filed in the county where the incident giving rise to the complaint allegedly occurred. However, when the juvenile charged is domiciled in a county other than the county of the alleged occurrence, venue shall be laid in the county of the juvenile's domicile unless the court finds good cause for venue to be retained in the county where the incident allegedly occurred.
[(Emphasis added).]
The Rule also provides that, "[i]f there are multiple
defendants, juvenile or adult," the Family Part must
7 A-0303-16T2 "immediately notify the county prosecutor and any attorney of
record of an intent to transfer the juvenile matter to the
county of domicile." R. 5:19-1(a)(2) (emphasis added). "Any
objection to the transfer of venue . . . shall be made . . .
within five days of such notice." Ibid.
When the Rule was last amended in 2006, the Supreme Court
Family Practice Committee explained that under the pre-amendment
Rule, venue in multiple defendant cases was laid in the county
where the incident occurred. The Supreme Court Family Practice
Committee, Family Practice Committee 2004-2007 Final Report 138
(Jan. 12, 2007)
http://www.njcourts.gov/courts/assets/supreme/reports/2007/
family 2007.pdf (The Report). This raised concerns "because
the information most useful to the Family Part judge assigned to
hear the juvenile delinquency case was uniquely available in the
juvenile's county of domicile." Ibid. (emphasis added).
Rule 5:19-1(b) provides:
Except when venue has been established by a court pursuant to an objection raised in paragraph (a)(2), a motion for change of venue may be made at any time. Such motion shall be made to the Family [PJ] or designee in the county where the matter is currently venued on notice to the other party. Venue shall be retained unless the court
8 A-0303-16T2 determines that good cause exists to change venue.2
The Committee succinctly summarized the Rule as amended:
The amended rule supports a presumption in favor of venue in the county of the child's domicile; requires Family Part case management in the county where the complaint was originally filed to notify the State, and any attorney of record, of the existence of multiple defendants; permits the raising of an objection within five days of such notice of multiple defendants in the county where the complaint was originally filed and requires good cause to retain venue there; and for any other reason, a motion to change venue may be brought at any time, which also requires a finding of good cause to change venue.
[The Report, supra, at 138 (emphasis added).]
In this case, the juvenile complaints were filed in
Middlesex County, which is M.P.'s domicile and where the
offenses allegedly occurred. No one sought a change of venue.
The judge acted sua sponte, entering the order transferring
venue without notice to the parties. The hearing on the State's
motion was the first opportunity either party had to object.
2 In criminal cases, subject to certain exceptions, venue presumptively lies in the county where the offense was committed. R. 3:14-1. Our Court Rules provide for a different procedure in adult criminal cases, in that only a defendant may move to transfer venue. R. 3:14-2. Such motions shall be made to the judge assigned to try the case or the AJ, "on notice to the other party or parties on such proofs as the court directs and shall be granted if the court finds that a fair and impartial trial cannot otherwise be had." Ibid.
9 A-0303-16T2 Importantly, both M.P. and the State were placed in the
unenviable position of having to voice their objections with
virtually no information regarding the identity of the judiciary
employee, what his/her job functions entailed and what
involvement the employee or his/her family member had with the
litigation.
Some of this information, although not all, was supplied
for the first time in the judge's written opinion denying the
State's motion. The judge relied upon the Policy. She
correctly noted, and the parties concede, policies adopted by
the Administrative Office of the Courts have the force of law.
Schochet v. Schochet, 435 N.J. Super. 542, 545 n.3 (App. Div.
2014). The Policy expressly states its purpose:
The Judiciary and those within the scope of this policy have an obligation to maintain a high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases. Even the appearance of a potential conflict of interest undermines the core values of the New Jersey Judiciary and hampers its mission. Accordingly, those covered by this policy must report any involvement concerning themselves, and any immediate family member's involvement known to the individual, in any litigation matter covered in this policy so that, if deemed necessary, the appropriate action may be taken to avoid or minimize any such appearance.
[Policy #5-15, supra, at 1 (emphasis added).]
10 A-0303-16T2 The Policy applies to all judiciary employees and requires,
among other things, that they "immediately report . . . [a]ny
personal involvement," or "[a]ny immediate family member's
involvement known to the employee," in any criminal, quasi-
criminal or non-criminal matter pending in any New Jersey state
or municipal court. Id. at 1-2.3 It defines immediate family
members. Id. at 3.
The affected judiciary employee must submit a confidential
report to his or her Senior Manager, in this case, the TCA. Id.
at 2. The Policy then provides:
The Senior Manager, in consultation . . . with the Assignment Judge . . . shall take appropriate action to avoid any appearance of impropriety. Appropriate action includes, but is not limited to, changing the venue of the matter, if permitted,[] or otherwise insulating the individual from the matter. Confidentiality will be maintained to the extent practicable under the circumstances.
[Id. at 3 (footnote omitted) (emphasis added).]
3 In the Acting Administrative Director's cover memorandum issuing the Policy, he noted this reporting requirement expanded prior policies, which limited reporting requirements of immediate family members' involvement in litigation to matters pending in the vicinage where the employee worked. Memorandum from Glenn A. Grant, J.A.D., Acting Admin. Dir. of the Courts (May 24, 2016).
11 A-0303-16T2 The footnote we omitted provides: "There may be restrictions on
involuntary change of venue which make such action inappropriate
(e.g., R. 3:14-2)."
No published case has addressed the interplay between the
Policy and our Court Rules governing venue in juvenile
delinquency matters. Our need to repeatedly address the
propriety of a court's sua sponte transfer of venue pursuant to
the Policy in criminal appeals, as reflected in the two recent
unpublished cases cited by the prosecutor, persuades us it is
necessary to provide some guidance to trial courts.
Specifically in the context of juvenile delinquency proceedings
like these, Family Part judges face the very difficult task of
balancing the reasonable expectation of a juvenile defendant and
his family expressed in our Court Rules — that venue will
presumptively lie in the county of the juvenile's domicile —
with the laudable goals of the Policy.
II.
We briefly address the argument that the PJ lacked
authority to enter the order. Rule 1:33-6(b) provides, "[i]n
addition to judicial duties, the Presiding Judge of each
functional unit within the vicinage shall be responsible for the
expeditious processing to disposition of all matters filed
within that unit." Moreover, "[t]he Presiding Judge shall
12 A-0303-16T2 perform such additional administrative duties as shall be
assigned by the Assignment Judge and shall be responsible for
the implementation and enforcement within the court of all
administrative rules, policies and directives of the Supreme
Court, the Chief Justice, the Administrative Director and the
Assignment Judge." R. 1:33-6(d) (emphasis added). In short, as
the judge here properly noted, Rule 1:33-6 permitted her to
enter the order transferring venue of M.P.'s juvenile complaints
to Somerset County.
We find further support for this conclusion in the language
of Rule 5:19-1(b), which requires any motion for a change of
venue to be heard by the PJ or her designee.
We disagree with the State's assertion that the Policy
requires the AJ to enter any order transferring venue. The
Policy authorizes the senior manager to consult with the AJ and
take appropriate action, presumably action short of transferring
venue, since it is axiomatic that only a judge may execute an
order transferring venue. However, the policy does not require
the AJ to enter every order transferring venue from the
vicinage.4
4 Additionally, even though the record does not reveal it happened here, Rule 1:33-6(a) allows the AJ to "delegate to the Presiding Judge of each functional unit within the vicinage, (continued)
13 A-0303-16T2 III.
Because precedent regarding venue in juvenile delinquency
matters is scant, we review some well-established principles
from criminal cases, fully recognizing that additional concerns
can arise in those prosecutions because a transfer of venue may
implicate "the constitutional significance of an impartial
jury." State v. Nelson, 173 N.J. 417, 475 (2002) (citing State
v. Williams, 93 N.J. 39, 61 (1983)). Although juvenile
defendants are accorded many of the same rights as criminal
defendants, see State ex rel. P.M.P., 200 N.J. 166, 174 (2009)
(citing N.J.S.A. 2A:4A-40), the right to a jury trial is not one
of them. Ibid.; see also State ex rel. A.C., 426 N.J. Super.
81, 93 (Ch. Div. 2011), aff'd o.b., 424 N.J. Super. 252 (App.
Div. 2012).
It is well-settled that "[v]enue is not a matter of
jurisdiction, nor is it of constitutional dimension." State v.
Zicarelli, 122 N.J. Super. 225, 233-34 (App. Div.) (citing State
v. DiPaolo, 34 N.J. 279, cert. denied, 368 U.S. 880, 82 S. Ct.
130, 7 L. Ed. 2d 80 (1961)), certif. denied, 63 N.J. 252, cert.
denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973).
(continued) judicial duties and responsibilities allocated to the Assignment Judge by these rules."
14 A-0303-16T2 Venue has generally been regarded as "a mere matter of practice
and procedure." State v. Greco, 29 N.J. 94, 104 (1959) (quoting
State v. O'Shea, 28 N.J. Super. 374, 379 (App. Div. 1953),
aff’d, 16 N.J. 1 (1954)). However, "[t]his is not to belittle
the venue provisions. They embody a significant policy
decision, and an accused is entitled to insist upon them."
DiPaolo, supra, 34 N.J. at 288.
Some of the policy reasons for presumptively laying venue
in the county of the juvenile's domicile find voice in our Court
Rules and in the Code of Juvenile Justice (the Code), N.J.S.A.
2A:4A-20 to -48. For example, Rule 5:20-4, provides that
"parents, guardians or other person having custody, control and
supervision over the juvenile shall be necessary parties to
every proceeding in all juvenile delinquency actions." "Th[e]
fundamental right of a party —— to be present during trial —— is
equally applicable to a parent in a juvenile delinquency
proceeding as a result of the adoption of Rule 5:20-4 by the New
Jersey Supreme Court." State ex rel. V.M., 363 N.J. Super. 529,
535 (App. Div. 2003); see N.J.S.A. 2A:4A-38(b) and (c)
(requiring notice to parents and their attendance at juvenile
detention hearings).
Some of the expressed purposes of the Code include the
preservation of family unity and "fostering interaction and
15 A-0303-16T2 dialogue between the offender, victim, and community." N.J.S.A.
2A:4A-21(a) and (f). Prior to making a disposition in a
delinquency matter, Family Part judges may order evaluations and
consider sources of information rooted in the county of
domicile, for example, county probation, "the county youth
services commission, school personnel, clergy, law enforcement
authorities, family members and other interested and
knowledgeable parties." N.J.S.A. 2A:4A-42(b). Any
predisposition report may include input from the victim.
N.J.S.A. 2A:4A-42(c)(1).
Indeed, as the prosecutor argued in this case, the Crime
Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, applies to
juvenile delinquency cases. See N.J.S.A. 52:4B-37 (defining
"victim" as "a person who suffers personal, physical or
psychological injury or death or incurs loss of or injury to
personal or real property as a result of . . . an act of
delinquency that would constitute a crime if committed by an
adult, committed against that person"). Victims and witnesses
are given the right "[t]o have inconveniences associated with
participation in the criminal justice process minimized to the
fullest extent possible," and "to be present at any judicial
proceeding." N.J.S.A. 52:4B-36(d) and (p). See also State v.
Timmendequas, 161 N.J. 515, 556 (1999) (recognizing that
16 A-0303-16T2 victims' concerns should be taken into account in deciding
whether venue should be transferred), cert. denied, 534 U.S.
858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
These considerations must be balanced against the
overriding goal of the Policy — "to maintain [the Judiciary's]
high degree of integrity and to avoid any actual, potential or
appearance of partiality or conflict of interest in the
adjudication or handling of all cases." Policy #5-15, supra, at
1. These concerns find expression in our Court Rules and in a
legion of decisions by our Court, too numerous to mention. See,
e.g., R. 1:17-1 to -3, and -5 (limiting involvement of judges
and "non-judge employees" in political activity, other
employment and appointed positions); In re DiLeo, 216 N.J. 449,
471-72 (2014) (discussing public perception of integrity and
impartiality as essential to conduct of a judge); In re
Randolph, 101 N.J. 425, 441-42 (discussing the impact a
judiciary employee's involvement in public and private civic
organizations has upon the public's perception of the
judiciary's impartiality), cert. denied, 476 U.S. 1163, 106 S.
Ct. 2289, 90 L. Ed. 2d 730 (1986).
We have no doubt that the court alone is vested with the
ultimate decision-making authority regarding any change in
venue, and that the court's authority may be exercised even in
17 A-0303-16T2 the face of a juvenile defendant's or the State's objection.
However, that authority must be exercised in service to the
Policy's goal, and any action promoting that goal must be
"necessary" and "appropriate" under the circumstances. Policy
#5-15, supra, at 1. The Policy anticipates that its goals may
be served by something less drastic than a transfer of venue.
Specifically, "insulating the [court employee] from the matter."
Id. at 3.
In this case, the judge stated the unidentified employee's
access to FACTS was a significant reason to transfer venue.
The system is a statewide system, and those employees with
access to Family Part case types in one vicinage may view those
case types in other vicinages. In other words, even after the
transfer of venue, the affected employee may still be able to
follow the proceedings occurring in another vicinage. The judge
also based her decision on the employee's physical location and
job duties, which entailed significant interaction with the
public, and the impracticality of "relocating" the employee.
However, the PJ did not identify the judiciary employee at
issue, nor did she explain the relationship he or she had to the
litigation. Confidentiality is important, and in some
situations, for example, concern for an employee's safety, it
may be paramount. However, the Policy recognizes
18 A-0303-16T2 "[c]onfidentiality will be maintained to the extent practicable
under the circumstances." Policy #5-15, supra, at 3 (emphasis
added). Particularly since the nature and extent of the
employee's involvement with this case was never discussed, it is
impossible to assess whether some remedy, short of transferring
venue, would have adequately served the Policy's goals.
Lastly, the judge determined the "procedural safeguards
ordinarily attendant to adversarial proceedings are not employed
in the area of administrative transfers." To some extent, we
disagree. As our earlier discussion demonstrates, the
presumption that venue in delinquency cases shall be laid in the
county of the juvenile's domicile is not a trivial matter.
Therefore, we believe Rule 5:19-1 provides the basic framework
courts should follow whenever they decide sua sponte that
particular circumstances establish good cause to transfer venue
under the Policy. The court should provide the parties with
five-days' notice of its intention and an opportunity to be
heard. If there is an objection, the judge should conduct a
hearing, explaining, to the extent "practicable," the judiciary
employee's, or his or her family member's, involvement in the
matter, and the job functions of that employee that create
particularized reasons why a remedy short of transfer is
impracticable.
19 A-0303-16T2 In this case, M.P. and the State were not provided with any
notice of the transfer. We do not view the hearing held on the
State's motion as adequate under the procedure we have now
devised. Nor do we conclude that the judge gave adequate weight
to the presumption that venue remain in the county of the
juvenile's domicile, or to the concerns raised by the State
regarding the rights of the victim of the alleged assault. We
are therefore constrained to reverse the two orders transferring
venue of M.P.'s juvenile delinquency complaints to Somerset
County, and we remand so the judge may conduct further
Reversed and remanded. We do not retain jurisdiction.
20 A-0303-16T2