In the Matter of the Civil Commitment of D.Y. Svp 491-08

SYLLABUS
(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
In the Matter of Civil Commitment of D.Y. (A-42-12) (071464)
Argued November 19, 2013 – Reargued May 5, 2014 – Decided July 24, 2014
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers whether a competent individual who is subject to involuntary civil
commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 3-:4-27.24 to -27.38, may represent
himself or herself at a commitment hearing.
In 1987 and 1994, D.Y. pled guilty to repeated sexual assaults against his nephew and another boy, both of
whom were twelve years old when the abuse began. As a result, D.Y. was convicted of offenses in state and federal
court. On May 27, 2008, after serving his sentences, the State filed a petition for D.Y.’s involuntary civil
commitment. At the initial hearing, although counsel had been appointed to represent him, D.Y. stated that he
wanted to represent himself. The court ordered the State to conduct a psychiatric evaluation to assess D.Y.’s
competence and scheduled a final commitment hearing for June 8, 2009. D.Y. refused to attend the hearing. The
trial court judge proceeded in D.Y’s absence, concluded that he had a high likelihood of reoffending, entered an
order of commitment, and scheduled a final hearing for June 1, 2010. D.Y. filed a motion for reconsideration,
arguing that too much time had lapsed between his temporary and final orders of commitment. The trial court
denied the motion.
D.Y. appealed the court’s final order of commitment. In addition to challenging the timeliness of his final
commitment hearing, D.Y. argued that he had a right to self-representation under the Sixth and Fourteenth
Amendments of the United States Constitution. An Appellate Division panel affirmed the trial court’s denial of
D.Y.’s application, concluding that neither of the federal constitutional principles D.Y. invoked affords a right to
self-representation in an SVPA civil commitment proceeding. In the Matter of Civil Commitment of D.Y., 426 N.J.
Super. 436 (App. Div. 2012).
This Court granted certification, limited to whether there is a constitutional right to self-representation at a
commitment hearing under the SVPA. 426 N.J. 436 (2013). After oral argument, the Court ordered supplemental
briefing on: (1) the proper standard by which to analyze the right of self-representation under the Fourteenth
Amendment in a proceeding involving the SVPA; and (2) whether D.Y.’s claim presents an issue of substantive due
process or a concern under Article 1, Paragraph 1 of the New Jersey Constitution. The Court granted the motion of
the American Civil Liberties Union of New Jersey Foundation (ACLU-NJ) and Disability Rights New Jersey, Inc.
(DRNJ) to appear as amici curiae.
HELD: The plain language of N.J.S.A. 30:4-27.29(c) and -27.31(a) requires that there be one of two alternative forms
of representation at SVPA commitment hearings: (1) full representation by counsel, or (2) self-representation by an
individual who is competent to conduct his or her case, with standby counsel present throughout the hearing to assist if
needed. Standby counsel may advise the committee, assist the court in expediting the proceedings, and assume an
active role if his or her client proves unwilling or unable to participate cooperatively in the hearing.
1. This appeal presents an issue of law. Therefore, the relevant standard of review is de novo. De novo
review requires the Court to consider the trial court’s rejection of D.Y.’s application to represent himself at his
SVPA hearing based on constitutional and statutory principles, with no special deference. (pp. 14-15)
2. The practice of pro se, or self, representation by civil litigants finds its genesis in the English common law.
This tradition followed English settlers to North America. West New Jersey and East New Jersey, which would
later comprise the colony, and then the State, of New Jersey, permitted parties in both civil and criminal cases to
appear in court unrepresented. As they did in our State’s colonial past, litigants frequently represent themselves in
New Jersey today. (pp. 15-18)
1
3. A litigant’s decision to proceed pro se may undermine his or her position in the case. An unrepresented
litigant who cannot or will not cooperate with the court can disrupt the proceedings, or derail them entirely. (p. 20)
4. The use of standby counsel has developed in the setting of criminal cases in which defendants exercise their
Sixth Amendment right to represent themselves. The involvement of standby counsel need not undermine the
litigant’s autonomy in directing his or her case and can serve to protect the integrity of the proceeding. (pp. 20-22)
5. Where a case may be decided on either statutory or constitutional grounds, the Court will inquire first into
the statutory question and decline to reach the constitutional question, unless required to do so. Notwithstanding the
constitutional analysis undertaken by the parties, the amici, and the courts that have considered D.Y.’s assertion of a
right of self-representation, this case may be decided as a question of statutory interpretation. In light of New
Jersey’s historical recognition of a competent litigant’s election to represent himself or herself in civil proceedings,
the Court considers whether the two provisions of the SVPA that address representation in involuntary commitment
hearings, N.J.S.A. 30:4-27.29(c) and -27.31(a), bar a competent individual from appearing pro se at an SVPA civil
commitment hearing with the assistance of standby counsel. (pp. 23-24)
6. To assess whether someone is a sexually violent predator subject to civil commitment, the State must
establish that the individual has been convicted of a sexually violent offense, suffers from a mental abnormality or
personality disorder, and that as a result of the psychiatric abnormality or disorder, it is highly likely that the
individual will not control his or her sexually violent behavior and will reoffend. (pp. 25-27)
7. The SVPA identifies five rights afforded to a person subject to civil commitment as a sexually violent
predator. N.J.S.A. 30:4-27.31. In addition to the right to counsel included therein, a corresponding provision,
N.J.S.A. 30:4-27.29(c), states that a person subject to involuntary commitment shall have counsel present at the
hearing and shall not be permitted to appear at the hearing without counsel. The Legislature did not, however, bar
an individual facing SVPA commitment from representing himself or herself, or state that an individual may
participate in the proceedings only through counsel. Therefore, in future SVPA hearings, including D.Y.’s hearing
on remand, competent SVPA committees may appear on their own behalf, with retained or appointed standby
counsel present to assist them if necessary. (pp. 27-30)
8. In this context, any decision by a committee to waive the right to full representation by counsel should be
clearly stated to the trial court, and the court should ensure that the committee’s waiver of representation by counsel
is knowing, intelligent and voluntary. In State v. Crisafi, this Court prescribed the inquiry that trial courts should
make when criminal defendants invoke their right to self-representation. 128 N.J. 499, 511-12 (1992). The trial
court should conduct a similar inquiry to ensure that the committee is aware of his or her statutory right to be fully
represented by counsel, and that he or she understands the importance of representation by an attorney in such a
complex case. (p. 31)
9. The role of standby counsel will be shaped by the issues confronting the court. A competent individual,
who represents himself or herself at an SVPA hearing in compliance with the rules of court, cannot be compelled to
accept the advice of his or her standby counsel. Standby counsel serves as a resource, guiding the committee
through each stage of the hearing and minimizing disruption and delay. A committee appearing pro se should not be
permitted to obstruct the proceedings. Proceeding unrepresented does not authorize the committee to undermine the
judge’s ability to make the important determination required by the SVPA. When a competent individual chooses
the alternative of self-representation, standby counsel will be available to provide advice and guidance, and will
assist the trial court in conducting an SVPA commitment hearing that is thorough and fair. (pp. 31-34)
The judgment of the Appellate Division is REVERSED. The case is REMANDED to the trial court for a
new commitment hearing.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and FERNANDEZ-VINA; and
JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-42 September Term 2012
071464
IN THE MATTER OF THE
CIVIL COMMITMENT OF
D.Y. SVP 491-08
Argued November 19, 2013
Reargued May 5, 2014 – Decided July 24, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 426 N.J. Super. 436 (2012).
Lewis P. Sengstacke, Assistant Deputy Public
Defender, argued the cause for appellant
D.Y. (Joseph E. Krakora, Public Defender,
attorney).
Robert T. Lougy, Assistant Attorney General,
argued the cause for respondent State of New
Jersey (John J. Hoffman, Acting Attorney
General, attorney; Mr. Lougy, Amy Beth Cohn,
and Susan M. Scott, Deputies Attorney
General, on the briefs).
Lawrence Bluestone argued the cause for
amici curiae American Civil Liberties Union
of New Jersey Foundation and Disability
Rights of New Jersey, Inc. (Lowenstein
Sandler, attorneys; Mr. Bluestone, Catherine
Weiss, and Alexander R. Shalom, on the
brief).
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal raises an issue not previously considered by
the Court: whether a competent individual who is subject to
involuntary civil commitment pursuant to the Sexually Violent
1
Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, may
represent himself or herself at a commitment hearing.
In 2008, the State filed a petition for the involuntary
civil commitment of D.Y., who had been convicted of several
state and federal charges arising from sexual assaults on
minors. At his initial commitment hearing, D.Y. stated that he
did not want to be represented by the attorney who had been
appointed for him in accordance with N.J.S.A. 30:4-27.31(a),
which affords individuals a right to counsel at SVPA hearings.
D.Y. did not attend his final hearing, in which his counsel
moved on his behalf for an order permitting D.Y. to represent
himself. The judge conducting the hearing denied the motion,
stating that individuals subject to SVPA commitment must be
represented by counsel pursuant to N.J.S.A. 30:4-27.29(c).
D.Y. appealed, asserting a right to self-representation
under two provisions of the United States Constitution, the
Sixth Amendment and the Due Process clause of the Fourteenth
Amendment. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1.
An Appellate Division panel affirmed the trial court’s denial of
D.Y.’s application, concluding that neither federal
constitutional principle invoked by D.Y. affords a right to
self-representation in an SVPA civil commitment proceeding.
We reverse. We recognize that competent litigants in New
Jersey have long been permitted to represent themselves in civil
2
proceedings, with specific exceptions identified in statutes,
court rules, and case law. Accordingly, we consider the
Legislature’s intent when it enacted N.J.S.A. 30:4-27.29(c),
which requires an SVPA committee to “have counsel present” and
bars him or her from appearing “at the hearing without counsel,”
and N.J.S.A. 30:4-27.31(a), which affords individuals the right
to be represented by counsel at SVPA commitment hearings. We
find no evidence that the Legislature, when it enacted those
provisions, intended to preclude an individual facing SVPA
commitment from speaking on his or her own behalf, as long as
standby counsel is present and available to assist throughout
the hearing if needed.
Instead, applying the plain meaning of the statutory text,
we hold that the statutory mandate is satisfied if a committee
who elects to represent himself or herself retains or is
assigned standby counsel. Such standby counsel may advise the
individual subject to commitment, assist the court in expediting
the proceedings, and assume an active role if his or her client
proves unwilling or unable to participate cooperatively in the
hearing. We acknowledge the effective assistance that standby
counsel have provided to pro se litigants in a range of settings
and find that such assistance comports with the Legislature’s
intent when it addressed the issue of counsel in SVPA hearings
in N.J.S.A. 30:4-27.29(c) and -27.31(a). Because we resolve this
3
case by statutory construction, we do not reach the Sixth
Amendment and due process issues raised by D.Y. A
constitutionally based adjudication is not necessary in light of
our construction of the statute.
We recognize that an SVPA committee’s decision to represent
himself or herself will seldom prove to be a sound strategic
choice. With complex issues to address, and his or her liberty
at stake, it is the rare SVPA committee who will have the skill
and experience of an effective lawyer. We are also aware of the
challenges that a pro se litigant may pose to the court, counsel
for the State, testifying experts, and the progress of the
hearing itself. Our decision is rooted in our State’s
traditional respect for the right of a civil litigant to choose
the path of self-representation, regardless of whether that
decision is a wise one. Consistent with the Legislature’s
intent, a competent individual subject to SVPA commitment may
represent himself or herself, provided that the support of
retained or appointed standby counsel is available if necessary.
Accordingly, we reverse the determination of the Appellate
Division and remand this case for a new commitment hearing.
I.
The proceedings to involuntarily commit D.Y. pursuant to
the SVPA were premised upon two predicate state criminal
convictions, one in 1987 and one in 1994, as well as convictions
4
in federal court related to the same offenses as those leading
to D.Y.’s 1994 conviction in state court.
The victim in D.Y.’s first series of sexual offenses was
his twelve-year-old nephew, C.Y. In November 1986, D.Y. was
indicted for: first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-
2(b); and third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). These charges arose from allegations by
C.Y. that D.Y. had engaged in sexual conduct with him on several
occasions. D.Y. entered into a plea agreement with the State,
pursuant to which he pled guilty to second-degree sexual assault
in exchange for the dismissal of the other charges. He was
sentenced to a five-year term of incarceration.
D.Y.’s second set of sexual offenses was the subject of a
state court indictment in 1994, in which he was charged with:
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1);
second-degree sexual contact, N.J.S.A. 2C:14-2(b); and third-
degree impairing the morals of a child, N.J.S.A. 2C:24-4(a).
These charges arose from D.Y.’s contact with a twelve-year-old
boy, A.B., whom D.Y. befriended while on probation. In 1994,
A.B. reported to police that D.Y. had sexually abused him over
the span of three years. According to A.B., D.Y. sexually
abused him during a rafting trip along the Delaware River, on a
vacation in Virginia during which they stayed together in a
5
hotel room, in approximately ten to fifteen incidents at a mall
where D.Y. worked, and on thirty to fifty occasions at D.Y.’s
home. Some of these incidents involved oral and anal sex, which
were videotaped by D.Y., and the display of child pornography to
the minor. On June 23, 1994, D.Y. pled guilty to first-degree
aggravated sexual assault, in exchange for a dismissal of all
charges. For that offense, D.Y. was sentenced on April 19,
1995, to an eighteen-year term of imprisonment, subject to a
six-year period of parole ineligibility, at the Adult Diagnostic
and Treatment Center at Avenel (ADTC).1
In addition, federal authorities filed separate charges
arising from some of the incidents involving A.B. D.Y. was
charged in the United States District Court for the District of
New Jersey with coercing a minor to engage in sexually explicit
conduct for the purpose of making visual depictions of such
conduct, 18 U.S.C.A. § 2251(a), and interstate transportation of
1
Between his first and second terms of incarceration for sexual
offenses, D.Y. pled guilty to theft, N.J.S.A. 2C:20-3. The
charge arose from D.Y.’s brief employment as the manager of a
shoe store following his release from prison. He was accused of
stealing $1500 from the store. D.Y. was sentenced to three
years’ probation for the theft charge on the same day he was
sentenced for the state charges involving sex offenses against
A.B. In addition, D.Y. was sentenced to three years’
imprisonment, consecutive to his state and federal sentences for
the offenses against A.B., for violating his probation term
arising from the offenses against C.Y. Theft is not a predicate
offense for purposes of the SVPA, N.J.S.A. 30:4-27.26, and
accordingly the theft charge is irrelevant to D.Y.’s civil
commitment proceedings.
6
a minor with the intent to engage in sexual activity with the
minor, 18 U.S.C.A. § 2423. On October 28, 1994, D.Y. pled
guilty to both counts of the federal indictment. On April 6,
1995, he was sentenced to 137 months’ incarceration.2
D.Y. completed his term of incarceration on or about June
7, 2008.
II.
D.Y.’s SVPA proceedings commenced with the State’s May 27,
2008 petition for his involuntary civil commitment pursuant to
N.J.S.A. 30:4-27.28. The State’s petition was supported by
certifications prepared by two expert psychiatrists, Marina
Moshkovich, M.D. and Sureshbabu Kurra, M.D., both of whom
diagnosed D.Y. with pedophilia and antisocial personality
disorder. On June 4, 2004, the trial court found “that there
[was] probable cause to believe that [D.Y.] suffer[ed] 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 committing D.Y. to the
Special Treatment Unit (STU), the facility operated by the
Department of Corrections and the Department of Human Services
that houses individuals who are civilly committed under the
SVPA. N.J.A.C. 10:36A-1.1. The trial court’s order required
2
The federal and State terms were to be served concurrently.
7
D.Y. to remain at the STU pending a hearing that the court
scheduled for June 23, 2008.
The hearing proceeded on the scheduled date. D.Y. was
represented by appointed counsel, who reported to the court that
the State had failed to have its designated expert interview
D.Y. within five days of the order of temporary commitment, as
required by N.J.S.A. 30:4-27.30(b). Counsel for D.Y. explained
that D.Y. had declined a request to be interviewed. D.Y. asked
to be heard. He confirmed that he did not want to be
interviewed, and commented, “I don’t want a hearing, either,”
urging the trial court to “[j]ust sign the commitment papers.”
D.Y. represented to the court that he wanted to leave the
hearing, and when the court inquired as to whether he would stay
to assist his counsel, he responded, “I fired him last week, I
don’t want him.” Advised by the court that he could not fire
his lawyer, D.Y. retorted, “[w]hy, this is nothing but a joke
anyhow. Just go ahead and commit me.” He added, “[t]he
statutes in this State have been written and broken constantly
by the State. It’s nothing but a joke.”
Although D.Y. stated that he wanted to leave the hearing,
the court required him to remain in the hearing room pending
testimony by the State’s expert, Dr. Howard Gilman, about D.Y.’s
competency. The trial court noted the possibility that D.Y.’s
statements constituted an assertion of the right to self-
8
representation. The State then asked Dr. Gilman about his
unsuccessful attempts to interview D.Y. When the expert
testified that at one point D.Y. had told ADTC staff that he
would consent to be interviewed, D.Y. claimed that the witness
was lying, and again stated that the lawyer appearing on his
behalf was “not [his] counsel.” The trial judge replied that
the SVPA compelled D.Y. to be represented by counsel. D.Y.
responded that the requirement that he be represented was
“illegal according to the United States Constitution,” and
stated, “[w]e’re allowed to represent ourselves, no matter what
the State says.”
Resuming his testimony, Dr. Gilman told the trial court
that in the absence of an interview, he was unable to determine
whether D.Y. was competent to discharge his lawyer or waive his
right to a final civil commitment hearing. Accordingly, the
trial court ordered the State to conduct a psychiatric
evaluation of D.Y. in order to assess his competence.
Subsequently, D.Y. was evaluated by Peter Paul, Ph.D., a
psychologist at the Ann Klein Forensic Center. Dr. Paul opined
that D.Y.’s behavior was consistent with a diagnosis of
Personality Disorder. Dr. Paul concluded that D.Y. “[was] of
above average intelligence and . . . ha[d] no mental illness
that would interfere with his ability to understand or
participate in the legal proceedings against him.”
9
D.Y.’s final commitment hearing took place on June 8, 2009.
When he was approached by officers intending to escort him to
his hearing, D.Y. refused to wear leg restraints and declined to
attend the hearing. D.Y.’s attorney advised the trial court
that D.Y. had refused to speak to him, “except to tell [him]
that he wishe[d] . . . to represent himself,” and moved “that
[D.Y.] be permitted to do so.” The trial court offered to
permit D.Y. to participate in his representation in conjunction
with counsel.
The trial court then proceeded with the hearing, and the
State presented the testimony of its expert, Dr. Gilman. At the
conclusion of the hearing, the trial court found “by clear and
convincing evidence that” D.Y. had a high likelihood to reoffend
and “to engage in acts of sexual violence” in the future. The
court entered an order of commitment and scheduled a hearing for
June 1, 2010, pursuant to N.J.S.A. 30:4-27.35. D.Y. then filed
a motion for reconsideration based on the time that had elapsed
between his temporary order of commitment and his final
commitment hearing. The trial court denied the motion.
D.Y. appealed the trial court’s final order of commitment.
In addition to asserting an argument based upon the timeliness
of his final commitment hearing, D.Y. asserted a right to self-
representation. He based that assertion on two federal
constitutional provisions: the Sixth Amendment to the United
10
States Constitution, as applied by the United States Supreme
Court in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45
L. Ed. 2d 562 (1975), and the Due Process Clause of the
Fourteenth Amendment, under the factors articulated by the
United States Supreme Court in Mathews v. Eldridge, 424 U.S.
319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
The Appellate Division rejected both of D.Y.’s arguments.
In re Civil Commitment of D.Y., 426 N.J. Super. 436, 442-47
(App. Div. 2012). It held that the Sixth Amendment right to
self-representation recognized in Faretta, “as a corollary to
the Sixth Amendment right to counsel,” extended only to criminal
cases, and that it does not apply to civil commitment. Id. at
441-43. It also concluded that self-representation is not “a
necessary component of a fair civil commitment proceeding” for
purposes of procedural due process analysis under Mathews. Id.
at 443-47. The Appellate Division concluded that “there is no
constitutional right to self-representation . . . because the
significant interests implicated therein are adequately
safeguarded by extant procedural protections, including, most
importantly, the right to counsel.” Id. at 446. Accordingly,
the Appellate Division affirmed the trial court’s determination.
Id. at 439, 448.
The Court granted certification, “limited to the issue of
whether there is a constitutional right to self-representation
11
at a commitment hearing under the Sexually Violent Predator Act,
N.J.S.A. 30:4-27.24 to -27.38.” 213 N.J. 394 (2013). Following
oral argument, the Court ordered supplemental briefing on two
issues: (1) the proper standard to analyze the right of self-
representation under the Fourteenth Amendment in a proceeding
involving the SVPA; and (2) whether D.Y.’s claim of a right to
self-representation presents an issue of substantive due process
or a concern under Article 1, Paragraph 1 of the New Jersey
Constitution. The Court granted the motion of the American
Civil Liberties Union of New Jersey Foundation (ACLU-NJ) and
Disability Rights New Jersey, Inc. (DRNJ) to appear as amici
curiae, and heard additional oral argument regarding the
questions addressed in the supplemental briefs.
III.
D.Y. argues that he clearly and unequivocally asserted the
right to represent himself in his SPVA hearings. He asserts
that although SVPA commitment hearings are civil proceedings,
the United States Supreme Court’s reasoning in Faretta
nonetheless governs this case because both criminal prosecutions
and civil commitment proceedings involve a substantial
curtailment of liberty, and that he has a Sixth Amendment right
to represent himself. D.Y. contends that under the Supreme
Court’s analysis in Mathews, he has a right to represent himself
rooted in the Due Process Clause of the Fourteenth Amendment.
12
He asserts that in this case, a compelling private interest is
implicated, the denial of his request would effect a substantial
deprivation of his freedom of choice, self-representation would
impose no additional burden on the State, standby counsel would
be available to assist, and trial courts would retain the right
to deny the right of self-representation to incompetent
individuals subject to SVPA civil commitment. In his
supplemental brief, D.Y. asserts that the requirements of the
SVPA unconstitutionally impinge on his right to conduct his own
defense and compromise an autonomy interest that cannot be
preserved by means of procedural safeguards. Raising an
additional issue for the first time before this Court, D.Y.
contends that Article 1, Paragraph 1 of the New Jersey
Constitution protects an SVPA committee’s fundamental right to
conduct his own defense, given New Jersey’s long tradition of
respecting the right of self-representation.
The State contends that N.J.S.A. 30:4-27.29(c) and
-27.31(a) reflect the Legislature’s intent that an individual
subject to involuntary commitment under the SVPA should be
represented by counsel. It contends that the United States
Supreme Court’s decision in Faretta is limited to criminal
prosecutions, and that D.Y. has no Sixth Amendment right to
represent himself. Relying upon California case law, the State
asserts that D.Y. has no Fourteenth Amendment due process right
13
to conduct his own defense, and that the participation of
counsel, not self-representation, ensures a fair and accurate
proceeding. The State identifies two important governmental
interests that weigh against self-representation: (1) the
protection of the public from dangerous individuals, and (2) the
orderly administration of justice in circumstances in which the
committee faces confinement. In its supplemental brief, the
State argues that the United States Supreme Court’s analytical
framework in Mathews governs this case. It also counters D.Y.’s
substantive due process argument, contending that self-
representation in an SVPA proceeding is not a fundamental right.
Amici curiae ACLU-NJ and DRNJ urge the Court to reject the
framework of Mathews in favor of a substantive due process
analysis. They contend that self-representation in civil cases
is a fundamental right dating back to New Jersey’s colonial
origins, and that it historically extends to civil commitment
hearings. Amici argue that the Court should recognize self-
representation in involuntary commitment hearings under the SVPA
to be a fundamental right under Article I, Paragraph 1 of the
New Jersey Constitution, which protects fundamental rights not
otherwise recognized by the federal Constitution.
IV.
This appeal presents an issue of law, and the relevant
standard of review is de novo. Balsamides v. Protameen Chems.,
14
Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, we
consider the trial court’s rejection of D.Y.’s application to
represent himself at his SVPA hearing, based upon constitutional
and statutory principles, with no special deference. Manalapan
Realty, supra, 140 N.J. at 378.
A.
The practice of pro se3 representation by civil litigants
finds its genesis in the English common law, which long
respected a competent civil litigant’s prerogative to decide
whether he or she would seek the assistance of counsel. “The
origins of the right to appear for oneself in civil proceedings
derive from a number of sources, all deeply rooted in our
history and culture.” Iannaccone v. Law, 142 F.3d 553, 557 (2d
Cir. 1998). One of those sources is the English common law.
“Under the English common law with its complicated forms of
action and veritable maze of writs and confusing procedures, the
right to retain counsel in civil proceedings became a
necessity.” Ibid. However, by the mid-thirteenth century,
“lawyers so monopolized the courts in London that the King was
forced to decree that, except for a few special causes,
3
Pro se, a Latin phrase meaning “[f]or oneself,” denotes a
litigant who represents himself or herself “in a court
proceeding without the assistance of a lawyer.” Black’s Law
Dictionary 1341 (9th ed. 2009).
15
litigants were entitled to plead their own cases without
lawyers.” Ibid. (citing Note, The Right to Counsel in Civil
Litigation, 66 Colum. L. Rev. 1322, 1325 (1966)). Thus, in the
English legal tradition from which our law was largely derived,
litigants generally had the right to represent themselves in
court.
The tradition of self-representation followed English
settlers to North America. As the United States Supreme Court
noted in Faretta, supra, “[t]he colonists brought with them an
appreciation of the virtues of self-reliance and a traditional
distrust of lawyers.” 422 U.S. at 826, 95 S. Ct. at 2537, 45 L.
Ed. 2d at 577. As a result, several American colonies went so
far as to prohibit “pleading for hire.” Id. at 827, 95 S. Ct.
at 2537, 45 L. Ed. 2d at 577. For example, the Massachusetts
Body of Liberties of 1641 stated that “[e]very man that findeth
himselfe unfit to plead his owne cause in any Court shall have
Libertie to imploy any man against whom the Court doth not
except, to helpe him, Provided he give him noe fee or reward or
his paines.” Mass. Body of Liberties, Art. 26 (1641), available
at https://history.hanover.edu/texts/masslib.html.
Several early colonial documents guaranteed the right to
self-representation by giving “colonists a right to choose
between pleading through a lawyer and representing oneself.”
Faretta, supra, 422 U.S. at 828, 95 S. Ct. at 2537-38, 45 L. Ed.
16
2d at 578. West New Jersey and East New Jersey, later to
comprise the colony and then the State of New Jersey, permitted
parties in both civil and criminal cases to appear in court
unrepresented. The Concessions and Agreements of the
Proprietors, Freeholders and Inhabitants of the Province of West
New-Jersey, in America stated “[t]hat [in] the trials of all
causes, civil and criminal, . . . no person or persons shall be
compelled to fee any attorney . . . but that all persons shall
have free liberty to plead his own cause if he please.” The
Concessions and Agreements of the Proprietors, Freeholders and
Inhabitants of the Province of West New-Jersey, in America, ch.
XXII (1677), available at http://westjersey.org/ca77.htm#chap22.
Similarly, the Fundamental Constitutions for the Province of
East New Jersey in America stated that “in all courts persons of
all perswasions may freely appear in their own way, and
according to their own manner, and there personally plead their
own causes themselves.” The Fundamental Constitutions for the
Province of East New Jersey in America, ch. XIX (1683),
available at http://avalon.law.yale.edu/17th_century/nj10.asp.4
4
There were similar documents in other colonies. The 1682 Frame
of Government of Pennsylvania, for example, stated that “in all
courts all persons of all persuasions may freely appear in their
own way, and according to their own manners and there personally
plead their own cause themselves; or, if unable, by their
friends.” Frame of Gov’t of Penn., Laws Agreed Upon in England,
ch. VI (1682), available at
http://avalon.law.yale.edu/17th_century/pa04.asp. In Faretta,
17
In the view of Thomas Paine, “to plead one’s cause was ‘a
natural right,’ pleading through counsel was merely an
‘appendage’ to the natural right of self-representation.”
Iannacone, supra, 142 F.3d at 558 (quoting Faretta, supra, 422
U.S. at 830 n.39, 95 S. Ct. at 2538 n.39, 45 L. Ed. 2d at 578-79
n.39).
As they did in our State’s colonial past, litigants
frequently represent themselves in New Jersey today. Trial
courts handling civil, probate, and family disputes routinely
encounter litigants who appear without counsel. Appellants and
respondents in civil and family matters often conduct their
appeals pro se in this Court and the Appellate Division. See,
e.g., Price v. Himeji, LLC, 214 N.J. 263, 268 (2013) (noting
plaintiff’s self-representation in zoning dispute); Leodori v.
CIGNA Corp., 175 N.J. 293, 295 (2003) (stating that plaintiff
represented himself in action brought under New Jersey
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8);
Lepore v. Nat’l Tool & Mfg. Co., 115 N.J. 226, 226-27 (1989)
(noting that plaintiff appeared pro se in appeal from trial
court’s dismissal of common law retaliatory discharge claim);
supra, the Supreme Court “found no instance where a colonial
court required a defendant in a criminal case to accept as his
representative an unwanted lawyer” and noted that “even where
counsel was permitted, the general practice continued to be
self-representation.” 422 U.S. at 828, 95 S. Ct. at 2537, 45 L.
Ed. 2d at 577.
18
Buckley v. Trenton Saving Fund Soc’y, 111 N.J. 355, 357 (1988)
(identifying plaintiff as pro se in appeal of banking dispute);
S.B. v. G.M.B., 434 N.J. Super. 463, 468-69 (App. Div. 2014)
(noting that defendant represented herself in custody dispute
with former spouse); Sommers v. McKinney, 287 N.J. Super. 1, 4-5
(App. Div. 1996) (stating that plaintiff litigated fraud and
legal malpractice against her former attorney pro se). In
short, New Jersey’s courts have vast experience in the oversight
of matters in which litigants represent themselves.5
B.
5
Certain categories of litigants in civil, probate, and family
court matters, such as minors or persons determined to be
mentally incapacitated, are afforded special protections which
may include appointment of counsel and/or a fiduciary. See,
e.g., N.J.S.A. 3B:13A-3 (providing that in conservatorship
proceedings “court shall have the right to appoint counsel for
[a] proposed conservatee if it believes that counsel is
necessary to adequately protect the interests of the
conservatee”); R. 5:8A (stating that in cases “where custody or
parenting time/visitation is an issue,” Family Part, on its own
motion or motion of party or child at issue, may “appoint
counsel on behalf of the child or children” if “the trial court
concludes that a child’s best interest is not being sufficiently
protected by the attorneys for the parties”); J.L. v. G.D., 422
N.J. Super. 487, 489 (Ch. Div. 2010) (stating that “where the
plaintiff is a minor and the defendant is an adult represented
by private counsel, the court shall appoint a licensed New
Jersey attorney to represent the minor’s interests at trial”);
State v. Ehrenberg, 284 N.J. Super. 309, 315 (Law. Div. 1994)
(stating that “[w]hen a bona fide doubt is raised as to the
competence of a mentally ill defendant to proceed pro
se, counsel should be appointed to aid in the competency
determination, as well as to assist the defendant in trying the
case”).
19
Notwithstanding the prevalence of self-representation, a
litigant’s decision to proceed pro se may undermine his or her
position in the case, and substantially impede the progress of
the proceedings. Unprotected by skilled and vigilant counsel, a
self-represented litigant may fail to discern a pivotal question
of law, neglect to inquire about an important issue of fact or
omit a crucial objection. No matter how earnest and cooperative
a pro se litigant may be, his or her self-representation is
likely to protract the hearing and complicate the task of the
trial judge. An unrepresented litigant who cannot or will not
cooperate with the court can disrupt the proceedings, or derail
them entirely.
The use of standby counsel -- an effective solution to
these challenges -- has developed in the setting of criminal
cases in which defendants exercise their Sixth Amendment right
to represent themselves. “The [United States Supreme] Court
made explicit that trial judges may appoint standby counsel --
even over a defendant’s objection -- ‘to relieve the judge of
the need to explain and enforce basic rules of courtroom
protocol or to assist the defendant in overcoming routine
obstacles that stand in the way of the defendant’s achievement
of his own clearly indicated goals.’” State v. Davenport, 177
N.J. 288, 301 (2003) (quoting McKaskel v. Wiggins, 465 U.S. 168,
184, 104 S. Ct. 944, 954, 79 L. Ed. 2d 122, 137 (1984)).
20
The participation of standby counsel is intended to
safeguard the fairness of the proceeding and further the
progress of the case. “Standby counsel is appointed for two
main purposes: to act as a ‘safety net’ to insure that the
litigant receives a fair hearing and to allow the trial
to proceed without the undue delays likely to arise when a
layperson represents his own case.” State v. Ortisi, 308 N.J.
Super. 573, 591 (App. Div.) (quoting United States v. Bertoli,
994 F.2d 1002, 1018-19 (3d Cir. 1993)), certif. denied, 156 N.J.
383 (1998).
When the self-represented party actively participates in
the case and cooperates with the court, the involvement of
standby counsel need not undermine the litigant’s autonomy in
directing his or her case. “A ‘pro se defendant must be allowed
to control the organization and content of his own defense, to
make motions, to argue points of law, to participate in voir
dire, to question witnesses, and to address the court and the
jury at appropriate points in the trial.’” State v. DuBois, 189
N.J. 454, 466 (2007) (quoting McKaskel, supra, 465 U.S. at 174,
104 S. Ct. at 949, 79 L. Ed. 2d at 131).
On the other side of the scale, a pro se
defendant has no absolute right to bar
“standby counsel’s unsolicited participation.”
Further, . . . standby counsel may “steer a
defendant through the basic procedures of
trial . . . even in the unlikely event that it
21
somewhat undermines the pro se defendant’s
appearance of control over his own defense.”
[Ibid. (quoting McKaskel, supra, 465 U.S. at
176, 184, 104 S. Ct. at 950, 954, 79 L. Ed. 2d
at 132, 137).]
Standby counsel also serves to protect the integrity of the
proceeding when a litigant is uncooperative with the court and
opposing counsel, or refuses to proceed at all. As the United
States Supreme Court noted in Faretta, supra, “the trial judge
may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist misconduct.”
422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at
581 n.46; see also State v. Wiggins, 158 N.J. Super. 27, 32-33
(App. Div. 1978) (“The right of the trial judge to control the
proceeding and insure a trial of a defendant which comports with
due process concepts is not at odds with the right of self-
representation recognized in Faretta . . . .”). When standby
counsel is appointed or retained to assist a party, a trial
court is in a position to conduct a fair and effective hearing,
even if the litigant refuses to cooperate or declines to attend.
This case thus arises in a judicial system accustomed to
self-representation by competent individuals in civil cases, and
experienced in the use of standby counsel to protect pro se
defendants in criminal proceedings.
V.
22
With that context, we consider the issue at the heart of
this case: whether D.Y. may represent himself in his SVPA
commitment hearing, with standby counsel present and available
to offer assistance.
In the trial court, the Appellate Division, and this Court,
the question of D.Y.’s right to self-representation was analyzed
as an issue of constitutional law. As a general principle, “we
strive to avoid reaching constitutional questions unless
required to do so.” Comm. to Recall Menendez v. Wells, 204 N.J.
79, 95 (2010); see also Randolph Town Ctr., L.P. v. Cnty. of
Morris, 186 N.J. 78, 80 (2006) (noting that “[c]ourts should not
reach a constitutional question unless its resolution is
imperative to the disposition of litigation”). As the United
States Supreme Court held in Harris v. McRae, “if a case may be
decided on either statutory or constitutional grounds, [the]
Court, for sound jurisprudential reasons, will inquire first
into the statutory question.” 448 U.S. 297, 306-07, 100 S. Ct.
2671, 2683, 65 L. Ed. 2d 784, 798 (1980).
Notwithstanding the constitutional analysis undertaken by
the parties, the amici, and the courts that have considered
D.Y.’s assertion of a right of self-representation, this case
may be decided as a question of statutory interpretation. In
light of New Jersey’s historical recognition of a competent
litigant’s election to represent himself or herself in civil
23
proceedings, we consider whether the two provisions of the SVPA
that address representation in involuntary commitment hearings,
N.J.S.A. 30:4-27.29(c) and -27.31(a), bar a competent individual
from appearing pro se at an SVPA civil commitment hearing with
the assistance of standby counsel.
We construe these SVPA provisions in accordance with
established principles of statutory interpretation. The
Legislature requires that in the construction of its statutes,
“words and phrases shall be read and construed with their
context, and shall, unless inconsistent with the manifest intent
of the legislature or unless another or different meaning is
expressly indicated, be given their generally accepted meaning,
according to the approved usage of the language.” N.J.S.A. 1:1-
1. Our task is to ascertain the Legislature’s intent, as
reflected in its chosen language, giving the words of the
statute their generally accepted meaning. State v. Marquez, 202
N.J. 485, 499 (2010). We “effectuat[e] the legislative plan as
it may be gathered from the enactment read in full light of its
history, purpose and context.” Koch v. Dir., Div. of Taxation,
157 N.J. 1, 7 (1999) (internal quotation marks omitted).
We consider the SVPA’s provisions regarding the
representation of individuals facing involuntary commitment in
light of the purpose and procedural framework of the statute.
In enacting the SVPA in 1998, the Legislature found that the
24
existing involuntary commitment procedure, predicated on a
finding that the individual at issue is “mentally ill and
dangerous to self, others or property,” was inadequate as
applied to sexually violent predators. N.J.S.A. 30:4-27.25(b).
The Legislature deemed 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 SVPA imposes upon 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) (internal citations omitted)
(quoting In re Commitment of W.Z., 173 N.J.
109, 130 (2002)).]
Involuntary commitment under the SVPA thus turns upon the
determination of “a mental abnormality or personality disorder”
that meets the statutory criteria. N.J.S.A. 30:4-27.26. The
SVPA incorporates a procedural framework for that determination.
Under N.J.S.A. 30:4-27.28(c), the Attorney General is authorized
to “initiate a court proceeding for involuntary commitment . . .
25
of an inmate who is scheduled for release upon expiration of a
maximum term of incarceration by submission 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).6 After it receives the Attorney General’s submission,
the trial court immediately reviews it “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 the trial court
finds “probable cause to believe that the person is a sexually
violent predator in need of involuntary commitment,” it issues
an order of temporary commitment and sets a date for a final
hearing. N.J.S.A. 30:4-27.28(g).
The individual being considered for civil commitment must
be served with notice at least ten days prior to the hearing.
N.J.S.A. 30:4-27.30(a). The SVPA mandates that “[a]
psychiatrist on the person’s treatment team who has conducted a
personal examination of the person as close to the court hearing
date as possible, but in no event more than five calendar days
prior to the court hearing,” be present at the hearing to
testify “to the clinical basis for the need for involuntary
commitment as a sexually violent predator.” N.J.S.A. 30:4-
6
N.J.S.A. 30:4-27.28(a), (b) and (d) prescribe the procedure for
the Attorney General to initiate proceedings for the civil
commitment of individuals other than the inmates whose SVPA
commitment is addressed in N.J.S.A. 30:4-27.28(c).
26
27.30(b). The trial court may also permit testimony from the
“next-of-kin” of the person being considered for involuntary
commitment, N.J.S.A. 30:4-27.30(c), and “[o]ther members of the
person’s treatment team and any other witness with relevant
information offered by the” individual subject to SVPA
commitment, or by the Attorney General, N.J.S.A. 30:4-27.30(b).
The SVPA identifies five rights afforded to a person
subject to civil commitment as a sexually violent predator:
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.]
The presentation of evidence in an SVPA hearing and the
cross-examination of the State’s witnesses are seldom simple
tasks. Given the statutory definition of a “sexually violent
predator,” expert witnesses in the fields of psychiatry and
psychology routinely play leading roles in SVPA commitment
hearings. See, e.g., R.F., supra, 217 N.J. at 161-67 (noting
that at SVPA hearing, State presented testimony of two experts,
one psychiatrist and one psychologist, and committee presented
27
one expert psychiatrist); In re Civil Commitment of J.M.B., 197
N.J. 563, 587 (2009) (noting that testimony of three expert
witnesses was presented at commitment hearing); W.Z., supra, 173
N.J. at 114 (identifying two experts (psychiatrist and
psychologist) who testified for State, and clinical psychologist
who testified on behalf of committee); In re Civil Commitment of
W.X.C., 407 N.J. Super. 619, 626 (App. Div. 2009) (stating that
two expert witnesses testified on behalf of State), aff’d, 204
N.J. 179 (2010); In re Civil Commitment of R.Z.B., 392 N.J.
Super. 22, 31-32 (App. Div.) (noting State’s presentation of
expert testimony given by psychologist and psychiatrist, and
committee’s presentation of three expert witnesses, including
psychologist, therapist, and psychiatrist), certif. denied, 192
N.J. 296 (2007); In re Civil Commitment of E.S.T., 371 N.J.
Super. 562, 567-68 (App. Div. 2004) (stating that trial court
considered testimony of psychologist employed at STU and
psychiatrist), certif. denied, 192 N.J. 295 (2007).
Accordingly, in a typical SVPA commitment hearing, counsel for
the individual subject to SVPA commitment must cross-examine the
experts whose testimony is offered by the State, and may also
present expert testimony on the committee’s behalf.
The Legislature acted to ensure that an individual who is
facing an SVPA hearing does not confront the State’s evidence
without the assistance of counsel. In addition to the right to
28
counsel included among the committee’s rights in N.J.S.A. 30:4-
27.31, a corresponding provision, N.J.S.A. 30:4-27.29(c), states
that “[a] person subject to involuntary commitment shall have
counsel present at the hearing and shall not be permitted to
appear at the hearing without counsel.” The language chosen by
the Legislature -- “shall have counsel present,” and “shall not
be permitted to appear” without such counsel -- can be found in
only one other statute, N.J.S.A. 30:4-27.12(d), which governs
the involuntary commitment of individuals outside of the SVPA.7
Significantly, the Legislature did not bar an individual
facing SVPA commitment from representing himself or herself, or
state that an individual may participate in the proceedings only
through counsel. The Legislature’s clear mandate -- expressed
in its affirmative requirement to have “counsel present,” and
its corresponding bar upon a committee’s appearance “without
counsel” -- is that an attorney for the individual be in
attendance and available to assist his or her client during the
entire hearing. Given this reasonable reading of the
7
This case does not raise, and we do not reach, the issue of
whether an adult who is subject to civil commitment pursuant to
N.J.S.A. 30:4-27.1 to -27.23, and who is determined to be
competent to represent himself or herself, may appear pro se in
a commitment hearing. See N.J.S.A. 30:4-27.12(d); R. 4:74-7(e)
(requiring that in civil commitment hearing, “[i]n no case shall
the patient appear pro se. The patient, through counsel, shall
have the right to present evidence and to cross-examine
witnesses.”). Our holding is limited to competent individuals
subject to involuntary commitment under the SVPA, N.J.S.A. 30:4-
27.24 to -27.38.
29
Legislature’s language, there is no need for us to reach D.Y.’s
argument that the SVPA deprives him of his rights under the
Sixth Amendment and principles of substantive due process by
preventing him from appearing pro se. Our interpretation
renders a constitutional adjudication avoidable because it is
unnecessary.
Accordingly, we hold that the plain language of N.J.S.A.
30:4-27.29(c) and -27.31(a) requires that there be one of two
alternative forms of representation at SVPA commitment hearings:
(1) full representation of the committee by counsel, or (2)
self-representation by an individual who is competent to conduct
his or her case, with standby counsel present throughout the
hearing and available to assist the committee if needed. The
text of both provisions is consistent with the committee’s
conduct of his or her own defense while advised by standby
counsel. In future SVPA hearings, including D.Y.’s hearing on
remand, competent SVPA committees may appear on their own
behalf, with retained or appointed standby counsel present to
assist them if necessary.
Given the compelling interests implicated by an SVPA
commitment hearing in which the committee appears pro se -- the
individual’s liberty, the public safety, and the integrity of
the judicial process -- we are confident that our experienced
30
trial judges will conduct these proceedings with caution and
care. We offer the following general guidelines.
First, any decision by a committee to waive the right to
full representation by counsel that N.J.S.A. 30:4-27.31(a)
affords to him or her should be clearly and unequivocally stated
to the trial court, and the court should ensure that the
committee’s waiver of his or her right to full representation by
counsel in his or her SVPA hearing is knowing, intelligent and
voluntary. In State v. Crisafi, this Court prescribed the
inquiry that trial courts should make when criminal defendants
invoke their right to self-representation. 128 N.J. 499, 511-12
(1992). Before proceeding with an SVPA hearing, the trial court
should conduct a similar inquiry to ensure that the committee is
aware of his or her statutory right to be fully represented by
counsel, and that he or she understands the importance of
representation by an attorney in such a complex case.
Second, the role that standby counsel will play in a given
SVPA hearing will be shaped by the specific issues confronting
the court. Under the SVPA, the trial court must determine
whether the individual “suffers from a mental abnormality or
personality disorder,” and whether, as a result of his or her
condition, the individual is highly likely to reoffend unless he
or she is confined. N.J.S.A. 30:4-27.26; accord R.F., supra,
217 N.J. at 173; W.Z., supra, 173 N.J. at 130. In a typical
31
hearing, the State will present the testimony of one or more
experts in psychiatry or psychology, and the committee’s case is
likely to be significantly buttressed if expert testimony is
presented on his or her behalf. It is the rare SVPA committee
who is capable of planning an effective cross-examination of an
expert testifying for the State, or who will know how to retain
and prepare an expert to counter the State’s evidence. The
skill and experience of standby counsel in planning and
conducting the hearing is critical to the fairness of the
proceeding. A competent individual, who represents himself or
herself at an SVPA hearing in compliance with the rules of
court, cannot be compelled to accept the advice of his or her
standby counsel. However, standby counsel serves as a resource,
explaining the court’s rulings and instructions to his or her
client, guiding the committee through each stage of the hearing,
and minimizing disruption and delay.
Finally, an SVPA committee appearing pro se should not be
permitted to obstruct the proceedings. An individual’s choice
to proceed unrepresented does not authorize him or her to wrest
control of the hearing from the trial court, or to undermine the
judge’s ability to make the important determination required by
the SVPA. As the United States Supreme Court held in Faretta,
supra, “[t]he right of self-representation is not a license to
abuse the dignity of the courtroom. Neither is it a license not
32
to comply with relevant rules of procedural and substantive
law.” 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed.
2d at 581 n.46; see also Wiggins, supra, 158 N.J. Super. at 33
(noting that “the right of self-representation, or the right to
be absent from the proceedings, is not a license to disrupt the
criminal calendar, or a trial in progress”). If a committee
flouts the court’s instructions, demonstrates disrespect for the
judge, counsel, court staff or a witness, or refuses to
participate in the hearing, the trial judge should take
appropriate action. See State v. Tedesco, 214 N.J. 177, 198
(2013) (noting our trial judges’ ability to control their
courtrooms and “maintain proper decorum”); Wiggins, supra, 158
N.J. Super. at 32 (stating that “trial judge . . . has an
absolute right to implement participation of effective counsel
for the criminal defendant who foolishly walks out of the
courtroom, desiring neither to participate nor to defend
himself”). In appropriate cases, the trial court may direct
standby counsel to assume full representation of the committee,
and resume the proceedings accordingly.
We recognize that our decision will impose an added burden
on civil commitment judges, who are already charged with the
challenging task of applying the SVPA. We anticipate that most
individuals confronting the prospect of civil commitment will
appreciate the strategic disadvantage of appearing pro se, and
33
will accept the full representation of counsel that the statute
affords. When a competent individual chooses the alternative of
self-representation, standby counsel will be available to
provide advice and guidance, and will assist the trial court in
conducting an SVPA commitment hearing that is thorough and fair.
VI.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the trial court for a new hearing
consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, and JUDGE RODRÍGUEZ (temporarily assigned) join
in JUSTICE PATTERSON’s opinion. JUDGE CUFF (temporarily
assigned) did not participate.
34
SUPREME COURT OF NEW JERSEY
NO. A-42 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE
CIVIL COMMITMENT OF
D.Y. SVP 491-08
DECIDED July 24, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ----------------------- ---------------------
TOTALS 6
1