                                    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                               NOT FOR PUBLICATION WITHOUT THE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-4406-17T2


IN THE MATTER OF THE
COMMITMENT OF C.R. and K.L.1
______________________________

                  Submitted May 1, 2019 - Decided June 24, 2019

                  Before Judges Koblitz, Currier and Mayer.

                  On appeal from the Superior Court of New Jersey, Law
                  Division, Union County, Municipal Appeal No.
                  130417.2

                  Joseph E. Krakora, Public Defender, attorney for
                  appellants C.R. and K.L. (Rihua Xu, Assistant Deputy
                  Public Defender, on the briefs).

                  Robert E. Barry, Union County Counsel, attorney for
                  respondent County of Union (Moshood Muftau, Second
                  Deputy County Counsel, on the briefs).

1
  We use initials to preserve the privacy of individuals involved in civil
commitment proceedings. R. 1:38-3(f)(2).
2
  A Superior Court order was signed by a municipal court judge pursuant to
N.J.S.A. 30:4-27.2(f), which defines "court" as the Superior Court or a
municipal court, and N.J.S.A. 30:4-27.12 and N.J.S.A. 30:4-27.16, which grant
authority to the "court" in civil commitment proceedings. We indicate that this
appeal is from the Law Division to be consistent with the order as it was entered.
PER CURIAM

      C.R. and K.L., patients committed and then released prior to the filing of

this appeal, appeal from the April 19, 2018 order denying their motion to

disqualify Union County Counsel from acting in the capacity of the county

adjuster in civil commitment hearings. We sua sponte granted leave to appeal

this interlocutory order. Given the limited record presented, we determine that

leave was improvidently granted and dismiss the appeal.

      Although the patients have since been released from Cornerstone

Behavioral Health Hospital of Union County (Cornerstone), this matter is not

moot. In re Civil Commitment of C.M., ___ N.J. Super. ___, ___ (App. Div.

2019) (slip op. at 6-8). The record, however, is not sufficiently robust to review

the patients' allegations.

      Patients' counsel alleges in his brief that during civil commitment

hearings, he raised concerns during "multiple off-record conversations with the

judge" regarding "limited cooperation and in some cases all out refusal of

Cornerstone personnel to discuss their patients' cases with the [public

defender's] investigators and their assigned counsel."         The commitment

transcript where this arose has not been provided. At a hearing on March 13,

2018, patients' counsel again raised concerns "off record" regarding "the legality


                                                                         A-4406-17T2
                                        2
of recent conduct of Cornerstone employees," and brought to the attention of the

court a March 12, 2018 memo by the chief psychiatrist at Cornerstone.

      Contrary to Rule 2:5-4 because it is not a part of the record in the trial

court, nor the subject of a motion to expand the record, Rule 2:5-5(b), patients'

counsel improperly included the memo in his appendix. We reproduce the chief

psychiatrist's memo to provide some context for what appears to be the genesis

of this dispute.   The March 2018 memo addresses Cornerstone employees'

interaction with lawyers representing patients and reads:

            1) Lawyers and their staff will be assigned a room to
            see patients.

            2) Lawyers and their staff will be provided one chart at
            a time.

            3) Cornerstone staff shall not be required to discuss
            patients with the lawyers and their staff.

            4) Once the court session is over and the judge has left,
            the lawyers shall leave the room.

            5) If lawyers have pending work related to their
            patients, they will be assigned a room to complete their
            work; they are requested not to remain in the facility to
            complete private business.

Following the hearings, patients' counsel served subpoenas on two social

workers and a psychiatrist from Cornerstone who had been witnesses, seeking

to question them at a deposition regarding alleged misconduct. County counsel

                                                                        A-4406-17T2
                                       3
filed a motion to quash the subpoenas.3 Patients' counsel then filed a motion to

disqualify county counsel.

        At the argument on the disqualification motion, patients' counsel alleged

that K.L. had unnecessarily been required to stay an additional three days in the

hospital based on misinformation regarding the availability of housing. Patients'

counsel based its disqualification motion on county counsel's motion to quash

subpoenas.4 County counsel argued it opposed the depositions based on its

belief that depositions were not permitted in commitment hearings. During oral

argument before the motion court, patients' counsel read an assertion from

county counsel that it represented the individual Cornerstone witnesses in the

motion to quash.

        Analogizing an attorney in a commitment proceeding to a prosecutor in a

criminal proceeding, patients' counsel sought the removal of county counsel,

arguing that "both of those issues deal with the government in representation of

the people regarding a liberty interest, the highest stake that there is." Patients'

counsel cited New Jersey v. Imperiale, 773 F. Supp. 747, 750 (D.N.J. 1991)

(stating "absence of an impartial and disinterested prosecutor has been held to


3
    A disposition on the motion to quash is not included in the appellate record.
4
    Only the cover letter of that motion is included in the appellate record.


                                                                           A-4406-17T2
                                         4
violate a criminal defendant's due process right to a fundamentally fair trial")

and Young v. United States ex rel. Vuitton Et Fils S. A., 481 U.S. 787, 790, 804

(1987) (holding a private attorney "for a party that is the beneficiary of a court

order may not be appointed to undertake contempt prosecutions for alleged

violations of that order").5

      The municipal court judge denied the motion to disqualify county counsel

because she found no concurrent conflict of interest. See Rules of Professional

Conduct, Pressler & Verniero, Current N.J. Court Rules, Appendix to R. 1:14,

www.gannlaw.com (2019) (stating a lawyer shall not represent a client if "there

is a significant risk that the representation of one or more clients will be



5
   The United States Supreme Court in Young found a conflict rendered the
private attorney's representation improper because:

             forced immersion in criminal investigation and
             adjudication is a wrenching disruption of everyday life.
             For this reason, we must have assurance that those who
             would wield this power will be guided solely by their
             sense of public responsibility for the attainment of
             justice. A prosecutor of a contempt action who
             represents the private beneficiary of the court order
             allegedly violated cannot provide such assurance, for
             such an attorney is required by the very standards of the
             profession to serve two masters.

             [481 U.S. at 814.]


                                                                         A-4406-17T2
                                        5
materially limited by the lawyer's responsibilities to another client, a former

client, or a third person or by a personal interest of the lawyer").

      Patients' counsel asks this court to reverse the municipal court's decision

and approve his proposed order, captioned "IMO the Commitment of C.R., et

al.,"6 and submitted with his motion to (1) disqualify the Union County

Counsel's Office "as attorneys for Cornerstone" and "as attorneys for all past,

present, and future employees, contractors, and affiliates of Cornerstone," and

(2) "enjoin[]" county counsel "from acting in the capacity of the county adjuster

for the purposes of civil commitment hearings."

      It is common in civil matters for parties' lawyers to litigate the need for

witness depositions, including motions to quash.            See, e.g., R. 4:14-7

(establishing the procedure for compelling depositions through subpoena

including, under subsection (c): "if the deponent is notified that a motion to

quash the subpoena has been filed, the deponent shall not produce or release the

subpoenaed evidence until ordered to do so" by court order or by consent of all

parties).

      "The county adjuster shall be responsible for commitment, admission,


6
  The Division of Mental Health Advocacy has the statutory authority, "with the
approval of the Public Defender," to represent individuals "as a class on an issue
of general application . . . ." N.J.S.A. 52:27EE-31.
                                                                         A-4406-17T2
                                         6
review and discharge of persons receiving [Division of Mental Health Services]

services, including those receiving services from county psychiatric facilities ."

N.J.A.C. 10:7-3.1(a). If licensed to practice law, the county adjuster shall

"present the case for the client's involuntary commitment to the court." N.J.A.C.

10:7-3.1(c)(6). County counsel should present involuntary commitment matters

if the county adjuster is not licensed to practice law. N.J.S.A. 30:4-27.12(b).

County counsel represented to the motion court that his office did so in cases

such as "emergencies, health considerations, vacations and conflict[ing]

schedules."    He said county counsel handles about twenty percent of the

commitment hearings, and:

              only deal[s] with the presentment of a hearing. We do
              not deal with any of the financial considerations
              relative to a patient's commitment. . . . the [a]djuster's
              [o]ffice is full[y] staffed . . . and . . . work[s] on all the
              administrative tasks and all of the settlement that's
              required by statute.

      Patients' counsel argues Cornerstone has a financial interest in committing

patients to its facility, and thus Cornerstone employees are not able to provide

objective opinions. Patients' counsel also contends Cornerstone is a "bottom-

line driven entity," and that Union County and Cornerstone's fiscal interests pose

a conflict. Contrary to Rule 2:5-4, patients' counsel impermissibly provides

Cornerstone's 2014 press release describing how the county sought:

                                                                               A-4406-17T2
                                            7
            ways to reduce costs and enable [Cornerstone] to react
            to a changing health-care environment by determining
            if and how [Cornerstone] operations could continue in
            the present environment and the future in light of the
            anticipated reduction in the Medicare/Medic[aid]
            reimbursements and increases in the County's subsidy
            of [Cornerstone].

            [County of Union Completes Sale of Runnells
            Specialized Hospital to Center Management; Leases
            Back Cornerstone Psychiatric Unit, Union County New
            Jersey (Dec. 15, 2014), http://ucnj.org/press-
            releases/public-info/2014/12/15/county-of-union-
            completes-sale-of-runnells-specialized-hospital-to-
            center-management-leases-back-cornerstone-
            psychiatric-unit/.]

The press release further describes Union County's eventual decision to "lease

back" Cornerstone. Ibid.

      We disregard the press release and the memo addressing Cornerstone

staff's interaction with patients' lawyers because neither document is properly

before us. Neither was presented to the municipal court judge who decided the

motion to disqualify county counsel, R. 2:5-4, nor did patients' counsel file a

motion to expand the record on appeal, R. 2:5-5(b). Based on the limited record

before us, we cannot review the issues raised by patients' counsel. We therefore

reconsider our grant of leave to appeal and dismiss this interlocutory appeal.

      Dismissed.



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