RICHARD J. SPILLANE VS. NJ STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0880-15T2
RICHARD J. SPILLANE,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_________________________
Argued May 15, 2019 – Decided July 16, 2019
Before Judges Accurso and Moynihan.
On appeal from the New Jersey State Parole Board.
Miriam L. Acevedo argued the cause for appellant
(Hughes & Associates, attorneys; Miriam L. Acevedo,
on the brief; Richard J. Spillane, on the pro se briefs).
Suzanne Marie Davies, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Lisa A. Puglisi, Assistant
Attorney General, of counsel; Gregory R. Bueno, on the
brief).
PER CURIAM
Appellant Richard J. Spillane first became eligible for parole after serving
over twenty-seven years of a life sentence, imposed in October 1986, with thirty
years of mandatory parole ineligibility for two counts of murder. He appeals
from the New Jersey State Parole Board's final decision denying his parole
request and setting a 240-month future parole ineligibility term (FET). Although
he sets forth nine points of alleged error in his initial pro se brief, 1 and added
additional contentions of error in his self-authored reply brief, we need not
consider those arguments because the Board's failure to follow the procedures
we mandated in Thompson v. New Jersey State Parole Board, 210 N.J. Super.
107 (App. Div. 1986), constrains us to reverse and remand this matter to the
Board.
1
Appellant contends: (1) the panel should have adjourned the hearing upon
realizing he was experiencing mental health problems and should not have
resumed until appellant was assigned a representative; (2) the panel refused to
consider his mental illness at the time of the murders as a mitigating factor; (3)
the prosecutor misrepresented evidence in a letter to the Board, thereby
prejudicing the Board against appellant; (4) the panel overlooked letters of
support; (5) the panel failed to read his written submissions, thereby violating
appellant's constitutional rights; (6) the panel took inaccurate and incomplete
notes, which prejudiced appellant; (7) this court should not consider the panel's
confidential addendum; (8) the Board failed to explore paroling him to a
program specializing in mental illness; and (9) the Board failed to show by a
preponderance of the evidence the substantial likelihood he will commit a crime
if released.
A-0880-15T2
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Appellant's appointed counsel, pursuant to our January 31, 2018 order,
reviewed an "in-depth psychological evaluation" authored by Richard
Mucowski, Ph.D., at the Board's request and, in a supplemental brief argued:
I. THE PAROLE BOARD'S DECISION SHOULD BE
REVERSED BECAUSE IT RELIED UPON
CONFIDENTIAL MATERIALS, INCLUDING A
PSYCHOLOGICAL EVALUATION THAT SHOULD
HAVE BEEN DISCLOSED TO APPELLANT WHICH
VIOLATED [APPELLANT'S] RIGHT TO DUE
PROCESS, EQUAL PROTECTION AND RESULTED
IN FUNDAMENTAL UNFAIRNESS.
II. REVIEW OF THE CONFIDENTIAL MATERIAL
PROVIDED SHOWS THE PAROLE BOARD'S
NEGATIVE FINDINGS ARE UNSUPPORTED BY
SUBSTANTIAL EVIDENCE.
In Thompson, 210 N.J. Super. at 116, we addressed the contention that
inmates should be entitled to view confidential material considered by the Board
in making its parole determinations. We held "New Jersey prisoners have a
protected liberty interest, rooted in the language of our parole statute, in parole
release, and a resulting constitutional right to due process of law." Id. at 120.
Thus, "[a]lthough parole is not a constitutional right, the prisoner's liberty
interest is sufficient to invoke certain procedural protections among which is a
limited right to disclosure of prison records in parole proceedings." Id. at 121
(citation omitted).
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The regulation in effect at the time we decided Thompson required
disclosure to inmates or parolees
of adverse material considered at a hearing, provided
such material is not classified as confidential by the
Department [of Corrections] and provided disclosure
would not threaten the life or physical safety of any
person, interfere with law enforcement proceedings or
result in the disclosure of professional diagnostic
evaluations which would adversely affect the inmate's
rehabilitation or the future delivery of rehabilitative
services. If disclosure is withheld, the reason for
nondisclosure shall be noted in the Board's files, and
such information shall be identified as confidential.
[Id. at 118 (quoting N.J.A.C. 10A:71-2.1(c)).2]
In analyzing the "flexible and dynamic concept" of due process as it
relates to the legal process afforded to potential parolees, we took into account
"[t]he safe operation of a prison" and the need to avoid threats to institutional
security, including the "[d]isclosure of therapeutic matters . . . if it would
interfere with prisoner rehabilitation and relationships with therapists." Id. at
123. We also considered that "prisoners are entitled not only to reasonable
standards implementing a confidentiality exception which is no broader than its
lawful purpose requires, but also to good faith determinations, made pursuant to
those standards, whether file materials are to be withheld." Id. at 123-24.
2
N.J.A.C. 10A:71-2.1 was recodified to N.J.A.C. 10A:71-2.2.
A-0880-15T2
4
Although we decided N.J.A.C. 10A:71-2.1(c) was facially valid, id. at
124, we formulated a procedure to "sufficiently protect the prisoner's due
process rights with the least intrusion on the [Department's] legitimate concern
for confidentiality," id. at 125-26. Any document removed from a prisoner's
parole file must be "identified as confidential and the reason for nondisclosure
. . . noted in the Board's file." Id. at 126. We required the Board, "after making
a parole decision adverse to the prisoner, to state in its decision whether any
document marked confidential played any substantial role in producing the
adverse decision and, if so, to record in its file which of them did so." Ibid.
If the Board states that confidential materials played a
substantial role in producing the adverse decision in a
case appealed to this court, we will undertake to review
the materials and determine the propriety of the
decision to withhold them. If we conclude that
nondisclosure was improper, the remedy might be a
remand for reconsideration without the withheld
materials, a remand for reconsideration after disclosure
to the prisoner of the withheld materials, or, perhaps,
an exercise of our original jurisdiction. The remedy
will fit the needs of the individual case.
[Ibid.]
N.J.A.C. 10A:71-2.1 has been amended several times since we decided
Thompson. Language that confidential material should be disclosed provided
"disclosure would not threaten the life or physical safety of any person, interfere
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5
with law enforcement proceedings or result in the disclosure of professional
diagnostic evaluations which would adversely affect the inmate's rehabilitation
or the future delivery of rehabilitative services" was removed. 20 N.J.R. 2129(a)
(Sept. 6, 1988). The regulation was amended again after passage of the Open
Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13,3 and recodified as
N.J.A.C. 10A:71-2.2, on February 6, 2012, 43 N.J.R. 2144(b) (Aug. 15, 2011);
44 N.J.R. 270(a) (Feb. 6, 2012), but the language of the regulation since March
20, 1989, 21 N.J.R. 767(a) (Mar. 20, 1989), continues to read:
Inmates or parolees shall be afforded disclosure of
adverse material or information considered at a hearing,
provided such material is not classified as confidential
by the Board or the Department. If disclosure is
withheld, the reasons for nondisclosure shall be noted
in the Board's files, and such material or information
shall be identified as confidential.
[N.J.A.C. 10A:71-2.2(c).]
We disagree with appellant's argument that the regulatory amendments
eliminated Thompson's requirement that confidential records be withheld only
if release could pose a risk of harm to the inmate or others. Although language
regarding threatening the life or physical safety of any person, interfering with
3
The OPRA-related amendment did not render, as the Board argues, the
provisions of N.J.A.C. 10A:71-2.2(c) applicable only to public disclosures. By
its terms, it clearly relates to disclosure to inmates and parolees, not the public.
A-0880-15T2
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law enforcement, or disclosing diagnostic evaluations was deleted, 20 N.J.R.
2129(a) (Sept. 6, 1988); 21 N.J.R. 767(a) (Mar. 20, 1989), Thompson never
required the release of confidential documents absent a showing of harm. While
our analysis of the propriety of the Board's decision to withhold confidential
documents that played a substantial role in an adverse parole decision
considered whether disclosure would cause harm, Thompson, 210 N.J. Super. at
122, 123, we did not require the Board to make such a showing in order to
withhold confidential documents from an inmate, id. at 126. We are also
unpersuaded by appellant's argument that the "regulations now prescribe a
blanket rule prohibiting disclosure to the inmate" of all psychological files. The
same procedures, N.J.A.C. 10A:71-2.2(c), are equally applicable to the current
regulatory scheme as they were to that in effect when we announced them in
Thompson.
The Board did not follow those procedures in withholding Dr. Mucowski's
report from appellant. Although it identified the report as confidential, the
Board failed to note the reasons for nondisclosure in its decision denying
appellant parole. The Board's counsel advanced in its merits brief, "it is clear
that [the] rationale behind non-disclosure of the information was its nature as
professionally prepared evaluative mental health records"; but that argument
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neither complies with Thompson's procedures nor informs us of the threat or
harm sought to be avoided. And, because the document we must perpend is a
psychological evaluation, the proffered reason does not elucidate why the
"[d]isclosure of therapeutic matters . . . would interfere with prisoner
rehabilitation and relationships with therapists," Thompson, 210 N.J. Super. at
123.
Further, although the Board acknowledged in a confidential addendum to
its notice of decision that Dr. Mucowski's psychological report "was relied upon
by the Board panel when they rendered their decision," we were not explicitly
told if the report played "a substantial role" in producing the Board's adverse
decision, id. at 126, 127. It appears from the addendum, however, that the report
did play such a role considering the numerous and detailed portions of the report
referenced therein that were also echoed in the Board's final decision. The three-
member Board panel that considered appellant's parole noted "[a] document
classified as confidential did play a significant role in" its decision but d id not
identify that document.
The Board has not proffered any reason to justify withholding the report.
It does not contend Dr. Mucowski is appellant's treating doctor. It does not state
what, if any, interference disclosure of the report would have on appellant's
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rehabilitation or relationship with his therapist. In short, the Board did not relate
its nondisclosure to a reason related to "[t]he safe operation of a prison," id. at
123.
We, therefore, remand this matter to the Board. We note, in compliance
with our January 31, 2018 order, appellant has not been privy to the report
although it was supplied to his appellate counsel. If the Board wishes to
withhold its report, it must fully comply with Thompson's requirements. If it
wishes to now disclose the report, reconsideration shall take place after appellant
and counsel, if any, have the opportunity to review same and prepare to meet
that evidence.
We also note the Board concurred with the three-member Board panel's
reasons – as set forth in the panel's notice of decision – for setting a 240-month
FET. While the Board complied with N.J.A.C. 10A:71-3.21(e)(1) by setting
forth the reasons for establishing the FET more than seventeen years beyond the
maximum extended period, N.J.A.C. 10A:71-3.21(a)(1); N.J.A.C. 10A:71-
3.21(c),4 the Board should also tether that lengthy period to the time needed for
4
A standard FET of twenty-seven months applies when the Board denies parole
to an inmate serving a sentence for murder. N.J.A.C. 10A:71-3.21(a)(1). The
standard FET can be increased or decreased by nine months, that is, within a
range of eighteen to thirty-six months, "when, in the opinion of the Board panel,
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appellant to progress in his rehabilitation. In other words, the Board needs to
justify the extraordinarily long FET by linking it to the future steps it requires
appellant to take before he is again eligible for parole. 5 That statement of
reasons would allow us to analyze the propriety of the FET. While we defer to
the Board's "individualized discretionary appraisals," Trantino v. N.J. State
Parole Bd., 166 N.J. 113, 201 (2001) (quoting Beckworth v. N.J. State Parole
Bd., 62 N.J. 348, 359 (1973)), we must "engage in a 'careful and principled
consideration of the agency record and findings.' While our scope of review is
limited, we cannot be relegated to a mere rubber-stamp of agency action,"
Williams v. Dep't. of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (citation
omitted) (quoting Mayflower Sec. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
We note our January 31, 2018 order instructed appellant's appointed
counsel to brief the issues of due process, equal protection and fundamental
the severity of the crime for which the inmate was denied parole and the prior
criminal record or other characteristics of the inmate warrant such adjustment."
N.J.A.C. 10A:71-3.21(c). But in setting an FET, the Board is not limited in all
cases to that eighteen to thirty-six months range. A panel may establish an FET
outside the range if the standard FET "is clearly inappropriate due to the inmate's
lack of satisfactory progress in reducing the likelihood of future criminal
behavior." N.J.A.C. 10A:71-3.21(d).
5
We recognize the FET was not set 240 months in the future; the Board,
considering all credits to which appellant is entitled, projected a parole
eligibility date in May 2026.
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unfairness. In light of our decision, however, we need not address these
constitutional issues. United States v. Scurry, 193 N.J. 492, 500 n.4 (2008)
("[W]e do not address constitutional questions when a narrower, non-
constitutional result is available."); see also BBB Value Servs. v. Treasurer,
State of N.J., 451 N.J. Super. 483, 497-98 (App. Div. 2017).
Reversed and remanded. We do not retain jurisdiction.
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