IN THE MATTER OF THE CIVIL COMMITMENT OF A.M. (SVP-51-00, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4962-17T5
IN THE MATTER OF THE
CIVIL COMMITMENT OF
A.M., SVP-51-00.
_____________________________
Submitted March 28, 2019 – Decided July 8, 2019
Before Judges Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-51-00.
Joseph E. Krakora, Public Defender, attorney for
appellant A.M. (Susan Remis Silver, Assistant Deputy
Public Defender, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey (Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen J.
Slocum, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner, A.M., a civilly committed sexually violent predator, appeals
from a June 25, 2018 order denying his request for removal from Modified
Activities Placement (MAP) status and denial of his motion for a religious
accommodation to the drug testing policy of the Special Treatment Unit (STU)
during Ramadan. A.M.'s offending history and civil commitment are not at issue
in this appeal, and we have previously affirmed his commitment. In re
Commitment of A.S.M., No. A-0624-05 (App. Div. June 9, 2006). In reaching
our decision, this court intends no disrespect toward A.M.'s religion and
religious practices. We recognize the seriousness of A.M.'s claim that STU's
drug testing procedure is a burden on his free exercise of religion, however, we
are constrained to reach our decision on jurisdictional grounds.
We discern the following facts from the record. A.M. is an observant
Muslim who abstains from eating or drinking from sunrise to sunset during
Ramadan. In 2018, Ramadan began in mid-May and ended in mid-June. Prior
to Ramadan, A.M. provided urine samples, which were negative for prohibited
substances. On May 20, 2018, during the fasting hours of Ramadan, Department
of Corrections (DOC) officers requested a urine sample from A.M. A.M.
initially protested citing his Ramadan fast, but fearing punishment, A.M. bro ke
his fast and consumed water to provide a urine sample.
Knowing he might have to provide another urine sample but not wanting
to break his fast, A.M. urinated in a plastic bottle so a sample would be available
if testing was required again. On May 23, 2018, again during the fasting hours
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of Ramadan, officers asked A.M. to provide another urine sample. In the view
of the DOC officer, A.M. presented his plastic bottle of urine, which the officer
confiscated as contraband. The officer told A.M. to provide a urine sample, but
A.M. refused due to his Ramadan fast and inability to urinate. A.M. was placed
on MAP status for possessing contraband, the bottle of urine, and for refusing
to provide a urine sample for testing.
On May 30, 2018, A.M. filed an emergent motion for removal from MAP
status. The Honorable Philip M. Freedman, J.S.C. conducted a hearing the
following day. During the initial hearing, the judge opined A.M.'s certification,
if true, suggests the situation might have been handled improperly, and the judge
would need a further hearing to resolve the issue. A.M. never disputed he was
in possession of the bottle of urine and A.M.'s counsel conceded the bottle was
contraband. However, the judge questioned how A.M.'s possession of the bottle,
presumptively to provide a urine sample without breaking his fast, could be
considered "contraband in the manner in which that was intended[.]"
On June 4, 2018, A.M. filed a motion for religious accommodation. A.M.
requested an order either requiring the State to refrain from demanding a urine
sample before sundown during Ramadan or to permit A.M. to wait until after
sundown to provide a urine sample during Ramadan. Accordingly, the court
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was presented two questions: whether A.M. should be removed from MAP
status, and whether he should be granted a religious accommodation. The judge
denied relief under both inquiries.
On June 14, 2018, Judge Freedman heard argument on the two motions
and denied both in separate orders dated June 25, 2018. A transcript of the
hearing was unavailable due to malfunctioning recording equipment, thus, a
remand was ordered to reconstruct the record. Judge Freedman provided a
written statement of reasons. He denied A.M.'s motion for religious
accommodation relying on In re Commitment of K.D., 357 N.J. Super. 94 (App.
Div. 2003). There, we held challenges to generally applicable conditions of
commitment are not appropriately raised in an individual resident's commitment
hearing; rather, they should be raised in a separate action in the Superior Court
or the United States District Court for the District of New Jersey. Id. at 99.
In the present case, the judge found defendant's admission he possessed
contraband justified MAP placement. Defendant's history of sexual offenses
was related to his drug abuse and there was a "clear connection between A.M.'s
relapse in the area of substance abuse and his deviant sexual behavior." The
judge noted that MAP is not a punishment but modified activities.
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The judge determined it was unnecessary to consider A.M.'s placement on
MAP status for refusal to give a urine sample on religious grounds, because
A.M.'s possession of contraband independently justified MAP placement. The
judge stated that if the sole reason for A.M.'s MAP status was his refusal to give
a urine sample during Ramadan, he would have held a further hearing on this
issue. This appeal followed.
A.M. raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED WHEN IT HELD THAT
IT LACKED THE JURISDICTION TO DETERMINE
WHETHER A.M.'S RIGHT TO PRACTICE HIS
RELIGION WAS LAWFULLY RESTRICTED WHEN
THE STATE REQUIRED THAT HE PRODUCE A
URINE SAMPLE WHILE HE WAS FASTING FOR
RAMADAN.
POINT II
A.M. IS ENTITLED TO RECEIVE A RELIGIOUS
ACCOMMODATION THAT ALLOWS HIM TO
PROVIDE A URINE SAMPLE DURING THE
NONFASTING HOURS OF RAMADAN.
POINT III
THE TRIAL COURT FAILED TO PROTECT A.M.'S
RIGHT TO PRACTICE HIS RELIGION WHEN IT
FAILED TO CONSIDER THAT HIS INABILITY TO
PRODUCE A URINE SAMPLE AND HIS
URINATION IN A BOTTLE WERE THE DIRECT
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RESULT OF THE STATE'S UNLAWFUL REFUSAL
TO ACCOMMODATE HIS RELIGIOUS BELIEFS.
At the outset, we note the highly deferential standard of review. Our
"review of a commitment determination is extremely narrow and should be
modified only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58
(1996). We give the utmost deference to the reviewing judge's determination,
as these judges are "specialists" in Sexually Violent Predator Act (SVPA)
matters. In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014). The
findings of the trial court "should be disturbed only if so clearly mistaken 'that
the interests of justice demand intervention[.]'" Id. at 175 (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)). "So long as the trial court's findings are
supported by 'sufficient credible evidence present in the record,' those findings
should not be disturbed." Ibid. (quoting Johnson, 42 N.J. at 162).
Under N.J.S.A. 30:4-24.2(a):
[s]ubject to any other provisions of law and the
Constitutions of New Jersey and the United States, no
patient shall be deprived of any civil right solely
because of receipt of treatment under the provisions of
this Title nor shall the treatment modify or vary any
legal or civil right of any patient[.]
Under N.J.A.C. 10:36A-2.1(a), "[s]ubject to the [SVPA], and any other
provisions of law and the Constitution of New Jersey and the United States, a
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resident shall not be deprived of a civil right solely by reason of receiving
treatment under the provisions of the SVPA."
N.J.A.C. 10:36A-2.3(a)(12), which governs STU residents, specifically
guarantees "[t]he right to freedom of religious affiliation and voluntary religious
worship; however, reasonable restrictions based upon the safe, secure, orderly
operation of the facility may be imposed." Pursuant to that framework, we
address A.M.'s arguments.
A.M. argues he is entitled to a religious accommodation allowing him to
provide a urine sample during non-fasting hours of Ramadan. In A.M.'s view,
the DOC's drug-testing policy places a "substantial burden" on his right to freely
exercise his religion. He contends the State cannot justify the restriction on his
fasting by showing it is necessary to collect urine samples for orderly operation
of the STU in compliance with N.J.A.C. 10:36A-2.3(a)(12). A.M. argues the
Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §
2000cc-1, supports his right to practice his religion and likens his circumstances
to Holt v. Hobbs, 574 U.S. __ (2015), which recognized the right of a devout
Muslim to grow a beard against prison policy while incarcerated.
In K.D., a confined individual with developmental disabilities argued the
sex-offender treatment he received at STU was inadequate in light of his
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disability. 357 N.J Super. at 97. K.D. requested "an in-patient locked unit
dedicated to the treatment of developmentally disabled sexual offenders[.]"
Ibid. "[The court] conclude[d] that a court has the inherent power to examine
the conditions of confinement, including treatment, prescribed by the SVPA."
Id. at 99.
We certainly do not suggest that any individual
commitment review hearing be converted into a
challenge to the sexual offender's treatment program
available routinely to the general population of
committees under the SVPA . . . . Such a challenge
must be brought in a plenary individual or class action
in the regular trial courts, state or federal, and not in a
particular committee's individual initial or annual
review hearing under the SVPA, the purpose of which
is to decide if confinement . . . is proper.
[Ibid.]
A.M. argues the trial court misapplied K.D., and the trial court was
authorized to address the particular conditions of his confinement at STU
because he is not seeking "broad injunctive relief on behalf of all Muslim
residents." A.M. acknowledges other similarly situated residents might have the
ability to take the same action but argues this does not bar him from raising his
own individual rights in a commitment hearing.
K.D. disallowed challenges to the "treatment program available routinely
to the general population of committees under the SVPA[.]" Ibid. Here, the
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court determined "the issue of religious accommodation for urine drug testing
during Ramadan would apply to all Muslim residents." We agree. Numerous
other residents of STU are also tested for drugs. The fact that drug testing is a
generally-applicable condition of confinement is sufficient to bar A.M. from
challenging this at his hearing. While A.M. argues he is only challenging the
policy with respect to himself, were he to be granted an exception, the
accommodation would extend to all similarly-situated committees. Thus, we
discern no abuse of the judge's discretion in declining to address the religious
accommodation.
We also reject A.M.'s contention the judge erred when he determined
A.M.'s MAP status was proper given the possession of the urine bottle. In
M.X.L. v. New Jersey Department of Human Services, we said there was
"nothing to preclude an attorney representing [a committee] from addressing a
MAP placement that may have occurred between reviews and challenging
whether it was appropriate to have placed [the committee] in MAP." 379 N.J.
Super. 37, 49 (App. Div. 2005). Further, "MAP placement may be reviewed
retrospectively[.]" Ibid. Here, A.M. contends that because the court didn't
consider all the circumstances surrounding A.M.'s MAP placement, the court
could not determine whether the MAP placement was "appropriate."
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"MAP is a component of the clinical treatment program at the STU that
focuses on stabilizing disruptive or dangerous behaviors. A primary goal of the
STU treatment program is to prepare civilly committed sexual predators to
safely return to the community." M.X.L., 379 N.J. Super. at 45. "Removal from
MAP status and return of full privileges is warranted when a resident
demonstrates the behavioral control skills expected of him. Residents are
directed to explore the behavior that resulted in MAP placement in group
therapy." Ibid. "MAP is not a punishment to those involuntarily committed, but
a necessary part of the entire treatment regimen to rehabilitate those committed
to a return to the community." Id. at 48.
Although the judge initially indicated MAP status might not be
appropriate if A.M.'s possession of contraband was based on the lack of religious
accommodation, the judge found the possession alone justified MAP placement.
In his written statement of reasons, the judge stated, "[a]ccepting A.M.'s
explanation that the reason he had the bottle of urine was so he could comply
with a request for a sample if he was unable to urinate does not change the
result." Based on our review of the record, we do not consider the trial court's
decision a "clear abuse of discretion." In re Commitment of V.A., 357 N.J.
Super. 55, 63 (App. Div. 2003) (quoting In re Commitment of J.P., 339 N.J.
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Super. 443, 459 (App. Div. 2001)). Moreover, the record demonstrates the judge
did consider the circumstances that led to A.M.'s possession of contraband but
found those circumstances inadequate to excuse the contraband possession.
We have carefully reviewed A.M.'s remaining arguments and have
determined they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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