Michael Dotro v. New Jersey Department of Corrections ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0247-23
MICHAEL DOTRO,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Defendant-Respondent.
__________________________
Submitted October 7, 2024 – Decided November 1, 2024
Before Judges Sabatino and Jacobs.
On appeal from the New Jersey Department of
Corrections.
Michael Dotro, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Eric Intriago, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Michael Dotro is incarcerated at East Jersey State Prison, administered by
the New Jersey Department of Corrections. In 2017, Dotro pleaded guilty to
attempted murder and aggravated arson, receiving a sentence of twenty years
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals from a
final administrative decision issued by the Department denying him credits
toward remission of his sentence pursuant to N.J.S.A. 30.4-123.100 (2020),
titled the Public Health Emergency Credits Act ("PHECA" or "Act"). For
reasons that follow, we affirm the Department's final decision.
I.
In response to increased viral transmissions among incarcerated persons
and corrections personnel during the COVID-19 pandemic, the Legislature
passed the PHECA. The PHECA, whose provisions are moribund in the absence
of the declaration in 2020 of a public health emergency, authorized the
Department to shorten sentences through issuance of jail-time credits by up to
eight months for those incarcerated persons meeting enumerated criteria. Most
notably within the Act's framework, the inmate's scheduled release date was
required to be within one year or 365 days of a public health emergency, as
declared by the Governor. The PHECA further required the Commissioner to
act "in accordance with this section . . . ," effectively denying the Commissioner
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discretion in awarding credits to ineligible incarcerated persons.
Dotro applied for credits under the PHECA in July 2023. The Department
informed Dotro his claim was denied, noting that he was scheduled for release
on July 12, 2034 and thus facially ineligible for any credits toward remission of
his sentence. After receiving the denial, Dotro filed an inquiry with the
Department asking why he and similarly situated incarcerated persons were
excluded from receiving PHEC, and if there were administrative remedies
available "to correct this inequality." The Department responded that credits
were provided to incarcerated persons who were within 365 days of release
beginning March 7, 2022 and that Governor Murphy terminated the program at
the close of that 365-day period, effective March 7, 2023. Thereafter, Dotro
filed a grievance with the Department requesting more information. He received
a response in August 2023, stating he had already been provided a response to
his inquiry. Dotro appealed to the Department and on the same day received a
final agency decision that he was not eligible for relief and that the matter was
considered closed.
Dotro filed a timely appeal of the agency's decision, raising a single point.
POINT I
THE COMMISSIONER OF THE NEW JERSEY
DEPARTMENT OF CORRECTIONS HAD THE
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ABILITY TO REMEDY THE
UNCONSTITUTIONAL SANCTIONS WITHIN THE
COVID-19 LEGISLATION, AND THE ADDITION
TO THE NEW JERSEY ADMINISTRATIVE CODE,
BUT FAILED TO DO SO.
In furtherance of this stated argument, Dotro contends the PHECA,
referenced in his argument on appeal as "the COVID-19 legislation," violated
his equal protection and due process rights under the New Jersey Constitution.
This contention is mirrored in his arguments regarding provisions of the New
Jersey Administrative Procedure Act (NJAPA), N.J.S.A. 52:14B-1 to -15, which
governs state agencies' promulgation of administrative rules and regulations. To
remedy these purported constitutional violations, Dotro claims the Department
should have provided a remedy by granting him "special credits" pursuant to
N.J.S.A. 30:4-92a, which unlike the PHECA, allows the Commissioner
discretion to award credits for other unrelated purposes, such as education and
achievements in workforce training.
II.
We turn first to the question of statutory interpretation and examine
Dotro's eligibility under the PHECA as statutorily enacted. Legal questions of
statutory interpretation are reviewed de novo. Bowser v. Bd. of Trs., Police &
Firemen's Ret. Sys., 455 N.J. Super. 165, 170-71 (App. Div. 2018). "When a
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court construes a statute, its 'paramount goal' is to discern the Legislature's
intent." In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 18 (2020) (quoting
DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Appellate courts "look first to
the statute's actual language and ascribe to its words their ordinary meaning."
Ibid. (quoting Kean Fed'n of Tchrs. v. Morell, 233 N.J. 566, 583 (2018)). "[T]he
best indicator of [the Legislature's] intent is the statutory language, thus it is the
first place we look." Ibid. (quoting Richardson v. Bd. of Trs., Police &
Firemen's Ret. Sys., 192 N.J. 189, 195 (2007) (internal quotation marks
omitted)). "If the plain language leads to a clear and unambiguous result, then
our interpretive process is over." Ibid.The review of an appeal from an administrative agency's final
determination is limited. Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997).
Appellate courts are required to defer to an agency's expertise or superior
knowledge of its subject area except "'in those rare circumstances in which an
agency action is clearly inconsistent with its statutory mission or with State
policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8,
27 (1994)).
A final determination of an administrative agency will not be overturned
unless it is arbitrary, capricious, or unreasonable, or lacks fair support in the
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record. In re State & Sch. Emps.' Health Benefits Comm'ns' Implementation of
In re Yucht, 233 N.J. 267, 279 (2018); In re Herrmann, 192 N.J. 19, 27-28
(2007). Determining if a final agency decision is arbitrary, capricious, or
unreasonable depends on:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Herrmann, 192 N.J. 19 at 28 (quoting Mazza v.
Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22,
25 (1995)).]
The party challenging the administrative action bears the burden of making that
showing. Lavezzi v. State, 219 N.J. 163, 171 (2014); see also Barone v. Dep't
of Hum. Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276,
285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
To begin, we note that seven months before enactment of the PHECA,
Governor Murphy declared a public health emergency on March 9, 2020 relating
to the COVID-19 pandemic, pursuant to Exec. Order No. 103 (Mar. 9, 2020), 52
N.J.R. 549(a) (Apr. 6, 2020). The Governor then terminated the public health
emergency on June 4, 2021, pursuant to Exec. Order No. 244 (June 4, 2020), 53
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N.J.R. 1131(a) (July 6, 2021). A public health emergency was reinstated on
January 11, 2022, pursuant to Exec. Order No. 280 (Jan. 11, 2022), 54 N.J.R.
203(a) (Feb. 7, 2022) and terminated again on March 7, 2022, pursuant to Exec.
Order No. 292 (Mar. 7, 2022), 54 N.J.R. 511(a) (Apr. 4, 2022). We are
concerned with the second declared public health emergency because that is the
period that pertains to Dotro's application for credits.
The pertinent text from the statute provides that whenever the Governor
declares a public health emergency pursuant to the Emergency Health Powers
Act, N.J.S.A. 26:13-1 to -36, the Commissioner of Corrections "shall award
inmates public health emergency credits in accordance with this section if the
public health emergency: (1) arises as a result of a communicable or infectious
disease; and (2) results in substantial modifications to department-wide
correctional facility operations." N.J.S.A. 30:4-123.100(a). Subsection (b)
provides that "public health emergency credits shall be awarded to any inmate
in the custody of the Commissioner of Corrections who: (1) is serving a sentence
. . . and (2) is scheduled to be released from the custody of the Commissioner of
Corrections within 365 days." (emphasis added).
Because the second public health emergency was in effect between
January 11, 2022 and March 7, 2022, under terms of the Act, an eligible
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incarcerated person must have a scheduled release date within 365 days from
the end of the public health emergency, or between January 11, 2022 and March
7, 2023. Dotro's scheduled release is July 12, 2034, more than a decade after
the maximum release date for which a given applicant would be eligible for the
program. As a consequence, Dotro was properly excluded from consideration
for receipt of public health emergency credits.
Certain inmates' preclusion from relief is reflected in the legislative
history, which confirms the intended beneficiaries of the credits were limited to
"certain inmates [] who are approaching the end of their sentences to reduce the
risk of harm to inmates, juveniles, and facility staff, while protecting the public
safety." Assemb. Budget Comm. Statement to S. 2519 (Sept. 22, 2020); S. L. &
Pub. Safety Comm. Statement to S. 2519 (Aug. 21, 2020).
Alternatively, Dotro argues the Department had authority to award him
PHEC pursuant to its authority under N.J.S.A. 30:4-92a, titled "Special credits."
The statute states in pertinent part: "[T]he [C]ommissioner also may award
special credits to provide further remission from time of sentence for
achievements in education and workforce training." (emphasis added). "May"
is generally construed as a permissive term, suggesting that an actor has
discretion to take or decline to take a given action. Aponte-Correa v. Allstate
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Ins. Co., 162 N.J. 318, 325 (2000) ("Under the 'plain meaning' rule of statutory
construction, the word 'may' ordinarily is permissive and the word 'shall'
generally is mandatory.")
Thus, the statutory construction of N.J.S.A. 30:4-92a relative to award
of "special" credits uses the word "may" to delineate the Commissioner's
authority to grant or deny special credits to incarcerated persons for the specific
purpose of education or workforce training. It is clear the Commissioner held
no explicit or discretionary authority to award PHEC to Dotro pursuant to
N.J.S.A. 30:4-92a, as the statute is specific to achievements in education and
workforce training. Dotro's reliance on this statute is misplaced, as there is
nothing in the record to reflect his eligibility for achievements in either
education or workforce training.
New Jersey Administrative Procedure Act and Constitutional Claims
The NJAPA sets forth rule-making requirements to which agencies shall
conform when promulgating administrative rules or regulations. See N.J.S.A.
52:14B-3 (setting forth mandatory rules for information to be made available for
public viewing). The Supreme Court has provided guidance on when an agency
action, even when informal, should be considered de facto rule making. See
Metromedia, Inc. v. Director, Div. of Tax'n, 97 N.J. 313, 331 (1984). The court
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in Metromedia enumerated six factors to be weighed when determining whether
the NJAPA rulemaking process should apply: "public notice of the anticipated
action, broad participation of interested persons, presentation of views of the
public, the receipt of general relevant information, the admission of evidence . .
. , and the opportunity for continuing comment . . . before a final determination."
Ibid.Relying on Metromedia, Dotro argues that application of the PHECA rules
to him was in violation of the NJAPA. Specifically, he claims the Department
violated his rights to equal protection and due process by infringing on standards
that are "to be applied generally and uniformly to all similarly situated persons."
Besler & Co. v. Bradley, 361 N.J. Super. 168, 171 (2003). However, Dotro
misinterprets the application of Metromedia and NJAPA to his circumstances.
The court in Metromedia provided a rubric to help determine whether an
agency's new rule or process is de facto rulemaking, in which case the new rule
or process shall conform with NJAPA. Here, as a threshold matter, the
Department had not set forth a new rule or procedure on its own. The
Department simply complied with the PHECA without promulgating its own
rules or regulations.
Regarding constitutional claims, the Fourteenth Amendment to the United
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States Constitution guarantees that no state may "deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws." U.S. Const., amend. XIV, § 1.
Our state Constitution is construed to contain "expansive language" that
guarantees those same fundamental rights. Caviglia v. Royal Tours of Am., 178
N.J. 460, 471-72 (2004) (referencing N.J. Const., art. I, ¶ 1). Analyses
conducted under equal protection and due process "overlap" to some degree and
"proceed[] along parallel lines," Greenberg v. Kimmelman, 99 N.J. 552, 569
(1985).
We evaluate these rights under the New Jersey Constitution by conducting
a balancing test that weighs "the nature of the affected right, the extent to which
the governmental restriction intrudes upon it, and the public need for the
restriction." Id. at 567. Additionally, the analysis requires that the "means
selected by the Legislature 'bear a real and substantial relationship to a
permissible legislative purpose.'" Caviglia, 178 N.J. at 473 (quoting Taxpayers
Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 44 (1976)). A
fundamental right or suspect classification is subject to strict scrutiny but other
rights or classes "need be only rationally related to a legitimate state interest."
Right to Choose v. Byrne, 91 N.J. 287, 305 (1982).
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Dotro argues the PHECA is fundamentally unconstitutional because: (1)
it creates discriminatory animus between persons who are similarly situated,
thereby establishing a suspect classification that should be subject to strict
scrutiny; and (2) the Department violated his due process rights guaranteed by
the New Jersey Constitution by dismissing his property and liberty entitlement
to public health emergency credits, after having "sufficiently qualif[ied] for the
requirements set forth within the [PHECA]."
The Department argues Dotro's claims should be subject to the first-filed
rule, suggesting this court should dismiss Dotro's constitutional argument in
deference to the federal courts who have already reviewed and dismissed the
constitutional arguments as meritless. Indeed, we recognize that "[t]he general
rule is to defer to the court which first acquires jurisdiction, absent the existence
of special equities." Exxon Rsch. v. Eng'g Co. v. Indus. Risk Insurers, 341 N.J.
Super. 489, 505 (App. Div. 2001). Nonetheless, for the sake of completeness,
we reviewed the constitutional claims under the lens of the New Jersey State
Constitution, which is construed to be coextensive with the U.S. Constitution in
this regard. Caviglia, 178 N.J. at 471-72 (2004) (referencing N.J. Const., art. I,
¶ 1).
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From our review of the legislative history, it is plain that enactment of the
PHECA was rationally related to a legitimate state interest. The Senate
Commerce Committee intended the Act to "expedite the release of certain
inmates [] who are approaching the end of their sentences to reduce the risk of
harm to inmates [] and facility staff, while protecting the public safety." A.
Budget Comm. Statement to S. 2519 1 (Sept. 22, 2020). In advancing that
interest, the PHECA distinguishes among incarcerated persons based on the
length of their sentence, excluding some based on the nature or severity of the
offense for which they were convicted. Delineating this period to be within one
year of release rationally balances concerns for public safety, on the one ha nd,
with concerns for public health on the other. In this context, we have recognized
that "[i]t is entirely appropriate for the Legislature to determine that convicted
killers should serve thirty years of imprisonment without a reduction . . . , while
allowing other inmates convicted of less serious offenses to reduce their
sentences." Merola v. Dep't of Corrs., 285 N.J. Super. 501, 514-15 (App. Div.
1995). Enactment of the PHECA bore a rational relationship to a permissible
legislative purpose of securing the health of incarcerated persons and prison
personnel during a public health emergency.
In applying the terms of the PHECA to Dotro and finding him ineligible
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for release, we are satisfied the Department acted reasonably and consistent with
the terms of the Act. The Department’s actions were neither arbitrary,
capricious, unreasonable, nor unconstitutional.
To the extent we have not otherwise addressed appellant's arguments, it is
because they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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