                                NOT FOR PUBLICATION WITHOUT THE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.


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                                        2
      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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                                        3
       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.
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                                         6
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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                                        7
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


                                                                            A-0880-15T2
                                         8
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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                                         9
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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                                       10
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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