                            RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-1030-13T2



                                             APPROVED FOR PUBLICATION

STATE OF NEW JERSEY                                   June 5, 2014
IN THE INTEREST OF
Y.C.                                               APPELLATE DIVISION
________________________

           Argued May 13, 2014 – Decided June 5, 2014

           Before Judges Reisner, Ostrer and Carroll.

           On appeal from the State of New Jersey, New
           Jersey   Juvenile  Justice  Commission  and
           Department of Corrections.

           Laura Cohen argued the cause for appellant
           Y.C. (Rutgers Criminal and Youth Justice
           Clinic, attorneys; Ms. Cohen, on the brief).

           Joseph   M.   Micheletti,    Deputy   Attorney
           General, argued the cause for respondent New
           Jersey   Juvenile   Justice   Commission   and
           Department of Corrections (John J. Hoffman,
           Acting Attorney General, attorney; Melissa H.
           Raksa, Assistant Attorney General, of counsel;
           Alex J. Zowin, Deputy Attorney General, on
           the brief).

           The opinion of the court was delivered by

REISNER, P.J.A.D.

    This   case    is   a    sequel   to   State    of   New   Jersey   in   the

Interest of J.J., 427 N.J. Super. 541 (App. Div. 2012), in which

we invalidated the Juvenile Justice Commission's then-existing
regulations for transferring juveniles to adult facilities run

by the Department of Corrections (DOC), and directed the agency

to adopt new regulations.        Id. at 558; see N.J.A.C. 13:91-2.1.

In   this   appeal,   Y.C.,   who    was     adjudicated       delinquent     as   a

juvenile and sentenced to the custody of the Juvenile Justice

Commission (JJC or agency) for a term of six years, challenges a

determination of the JJC transferring him to an adult prison.1

We conclude that the agency's adoption of an "interim policy" on

transfers did not comply with our direction in J.J., or with the

Administrative   Procedures     Act       (APA),    N.J.S.A.      52:14B-4.     See

N.J.S.A. 52:14B-4(d) ("No rule hereafter adopted is valid unless

adopted in substantial compliance" with the APA).                       We remand

this matter to the JJC for a new transfer hearing, which shall

be held before the Office of Administrative Law (OAL) on an

expedited    basis.     We    also    direct       the   agency    to   adopt   new

regulations within 180 days.

                                      I

      By way of background, in 1995, the Legislature authorized

the JJC to transfer to adult prisons certain juveniles who met

criteria set forth in the statute:

            The commission and the Commissioner of the
            Department of Corrections shall, consistent
            with applicable State and federal standards,

1
  On October 29, 2013, we denied a stay of the transfer but
accelerated this appeal.


                                       2                                  A-1030-13T2
            formulate a plan setting forth procedures
            for transferring custody of any juvenile
            incarcerated in a juvenile facility who has
            reached the age of 16 during confinement and
            whose continued presence in the juvenile
            facility threatens the public safety, the
            safety of juvenile offenders, or the ability
            of the commission to operate the program in
            the manner intended.

            [N.J.S.A. 52:17B-175(e) (emphasis added).]

The Legislature further directed the JJC and the DOC to "jointly

adopt    regulations    pursuant    to    the   [APA],   establishing     the

procedures included in the plan."         Ibid.

    As    we   noted   in   J.J.,   the   agencies   adopted    regulations,

N.J.A.C. 13:91-2.1, that provided no procedural due process for

a juvenile facing transfer.         The State contended that none was

required.      J.J., supra, 427 N.J. Super. at 543.            We disagreed,

finding that the regulation was invalid:

            Because N.J.A.C. 13:91-2.1 provides no due
            process rights to the juvenile as part of
            the transfer process, we hold that it is
            invalid.    It does not comply with the
            statutory requirement that the transfer
            procedures be "consistent with applicable
            state and federal standards," particularly
            the juvenile's rights to due process.    U.S.
            Const.   amend.   XIV;   see   Greenberg   v.
            Kimmelman, 99 N.J. 552, 568 (1985) (Article
            I,   Paragraph   1   of    the   New   Jersey
            Constitution "safeguards values like those
            encompassed by the principles of due process
            and equal protection.").

            [Id. at 558.]




                                      3                             A-1030-13T2
       We rejected J.J.'s alternate arguments that the transfer

decision should be made by a Family Part judge, and that he

could not be transferred to an adult prison unless he had a

right to a jury trial in the delinquency adjudication.                 Id. at

553, 557.     However, we concluded that, "[a]t a minimum," the JJC

must    provide    a    juvenile   with    the   following      due   process

protections:

             [B]efore a juvenile can be transferred to
             custody of the DOC, there must be written
             notice of the proposed transfer and the
             supporting   factual  basis,   an  impartial
             decision maker, an opportunity to be heard
             and to present opposition, some form of
             representation, and written findings of fact
             supporting a decision to proceed with the
             transfer.

             [Id. at 557 (footnote omitted).]

       We   did   not   decide   whether   a   juvenile   was   entitled     to

representation by counsel, because the record was inadequate to

permit us to address the issue:

             The record does not reflect whether legal
             assistance similar to "counsel substitutes"
             or some other form of legal assistance is
             available in juvenile facilities to assist
             juveniles in opposing a transfer request.
             In addition, it is not clear whether
             transferred juveniles are mixed with the
             adult population when they are transferred
             or segregated from adult offenders albeit
             housed in an adult prison, nor does the
             record reflect whether or not they continue
             to receive rehabilitative and other services
             available to juveniles at JJC facilities.
             Those factors would inform our consideration



                                      4                               A-1030-13T2
           of whether there must be representation by
           counsel.

           [Id. at 557 n.7.]

    We    ordered    that   the    juvenile       be     returned    to   the   JJC's

custody, and ordered the JJC to revise its regulations before

seeking to re-transfer the juvenile to DOC custody:

           For the reasons set forth above, we reverse
           the order transferring [J.J.] to the custody
           of the DOC and order his return to the
           custody of the JJC. The JJC shall promptly
           revise   its  regulations   to  provide   an
           appropriate level of due process consistent
           with this opinion.     It may then seek to
           transfer Jones to the custody of the DOC
           with an appropriate hearing and procedural
           safeguards.

           [Id. at 558 (emphasis added).]

    In    our   view,   the       above       language     was    unambiguous     and

unequivocal.    The JJC needed to adopt revised regulations before

seeking to transfer juveniles to DOC custody.                     But that did not

happen.    Instead, on August 1, 2013, the JJC adopted Policy

Number 13ED:01.30, entitled "Transfers of Juveniles to DOC –

Interim   Policy."      The   interim         policy,     under     which   the   JJC

continues to operate, was not promulgated in conformity with the

procedures required by the APA.               See N.J.S.A. 52:14B-4.            Almost




                                          5                                 A-1030-13T2
two   years    after       J.J.     was    decided,         the       agency          still   has   not

adopted regulations.2

      Meanwhile, on October 18, 2013, more than a year after J.J.

was   decided,      the     JJC     transferred            Y.C.       to        an    adult   prison.

Pursuant to the interim policy, he received a hearing before a

JJC hearing officer, but he was denied the opportunity to be

represented        by    counsel,     even       though         he        had    an     attorney     who

sought permission to appear.                 The attorney was permitted to file

a brief on Y.C.'s behalf, but was not allowed to be present at

the hearing.            Instead, as provided by the interim policy, Y.C.

was   represented         at   the    hearing         by        a    non-attorney,            the    JJC

Ombudsman,     an       individual        whom       the    policy          describes         as    "the

individual(s) within the Commission responsible for resolving

complaints made by juveniles about the facility, the action or

inaction      of    staff      or    any    other          matter          of    concern      to     the

juvenile."          According        to    Y.C.,           he       had     no       opportunity      to

introduce educational and other records designed to show his

positive progress while in JJC custody; only his disciplinary

records    and      the    JJC's      institutional                 notes        were    introduced.

Further, he contends that the Ombudsman failed to present or

cross-examine any witnesses or otherwise act as an independent

and zealous advocate.

2
  The agency proposed new regulations on August 19, 2013, 45
N.J.R. 1941(a), but has not adopted them.


                                                 6                                            A-1030-13T2
    The   JJC   hearing    officer     determined     that    Y.C.    should   be

transferred to DOC custody because he had incurred forty-five

disciplinary charges in the past year, and he belonged to a

"security threat group."         The prior charges included fighting,

attempted or aiding an assault on another juvenile, and throwing

bodily fluids.      Y.C. contended that he was making efforts to

improve   his   behavior   and   had       not   incurred    any   disciplinary

infractions for the past four months preceding the hearing.                    The

hearing officer found that due to Y.C.'s disruptive conduct,

"his continued presence in the juvenile facility threatened the

safety" of the JJC staff and other juvenile residents.                         The

hearing   officer   also   found     that    Y.C.'s   behavior       "undermined

JJC's ability to operate the juvenile facility in a stable, safe

and orderly manner," and his involvement in numerous serious

disciplinary infractions "impede[d] the effective delivery of

services because of his constant non-compliant behavior."

    The record of this appeal does not provide the information

that, in J.J., we found necessary to decide whether juveniles

must have the right to counsel in transfer hearings.                   Moreover,

there is no transcript or other contemporaneous record of what




                                       7                                A-1030-13T2
occurred at the hearing, beyond a handwritten form and a short

supplemental decision from the hearing officer.3

                                    II

      On   this    appeal,   Y.C.   raises     a   plethora       of   issues    in

multiple    points     and   subpoints.         Y.C.     contends      that     the

Ombudsman, who was a JJC employee and not an attorney, was not

an   appropriate     representative.       Analogizing   to   a    case   dealing

with transfers to mental health facilities, Vitek v. Jones, 445

U.S. 480, 494-95, 100 S. Ct. 1254, 1264-65, 63 L. Ed. 2d 552,

566 (1980), Y.C. argues he was entitled to representation by

counsel.    He also argues that the JJC hearing officer was not an

impartial decision-maker.       See N.J.A.C. 13:101-1.3 (disciplinary

hearing officer is a JJC staff member).                  He further contends

that a juvenile court judge must make the transfer decision, an




3
  After this appeal was filed, Y.C. filed a motion to supplement
the record, largely aimed at documenting positive aspects of his
behavior at the JJC facility.   We denied the motion.   However,
we note that his motion included a certification attesting that
since his transfer to the DOC, he was being held in
administrative segregation with an adult roommate, and was not
being provided with educational or other services similar to
those available at the JJC.      The JJC filed a certification
attesting that DOC inmates under age twenty-one are provided
with educational opportunities and other services, but stating
no facts pertaining specifically to Y.C. At most, the
certifications created material disputes of fact about the
conditions afforded juvenile transferees in the adult prison
system.




                                       8                                  A-1030-13T2
argument we previously rejected.               J.J., supra, 427 N.J. Super.

at 557.

      Y.C. contends that the interim policy is invalid because it

was not adopted as a regulation.            He argues that he could not be

transferred in the absence of the regulations we directed be

adopted in J.J.       He also argues that, before he pled guilty in

juvenile     court,   he   had    a    right    to   notice     that    he     might

eventually be transferred to an adult prison.                   He contends the

JJC did not notify him, at the time he entered JJC custody, that

he   could   be   transferred     to   adult     prison    as   a   disciplinary

consequence of violating institutional rules.

      Y.C.   argues    that    the    interim    policy    unduly      limits     the

juvenile's right to present evidence and call witnesses at the

hearing, and does not clearly define what issues the juvenile is

required to address.          He also contends that, without access to

his own institutional records, the right to present evidence at

a transfer hearing is meaningless.               In a related argument, he

claims that the JJC's failure to consider a juvenile's entire

record is improper.        And, he claims the proposed regulations go

further than the statute in setting forth grounds for a possible

transfer.     He argues that a threat to security should be the

only acceptable grounds for a transfer.                   He asserts that the

applicable proof standard for a transfer should be "clear and

convincing"    not    "substantial     credible      evidence."        He    further


                                        9                                   A-1030-13T2
contends    that    a    transcript   or     electronic    recording     of   the

hearing    should   be    required,    and    that   the   hearing     officer's

written statement of reasons was inadequate.               Finally, he argues

that if he can be incarcerated in adult prison, he was entitled

to a jury trial before being adjudicated delinquent, an argument

we rejected in J.J.

    In its response, the JJC emphasizes that Y.C. is nineteen

years old, six feet tall, weighs 190 pounds, is a member of a

security threat group, and was adjudicated delinquent for crimes

that if committed by an adult would have constituted first-

degree armed robbery.         The JJC claims Y.C. is violent and has

assaulted   other       juveniles   while    at   the   New   Jersey   Training

School at Jamesburg and the Juvenile Medium Security Facility at

Bordentown.    The JJC also contends that the procedures set forth

in the interim policy were consistent with what J.J. required,

and Y.C. was not entitled to any further due process.

                                      III

    We decline to decide the bulk of the issues Y.C. raises on

this appeal, because of the lack of an adequate factual record.

Moreover, many of the procedural issues he raises are addressed

by the remedy we order here, i.e., an OAL hearing at which he

will be represented by counsel.             We also note that some of the

issues J.J. raises here may not be appropriate for decision in

the context of a disciplinary/transfer case.


                                       10                               A-1030-13T2
    For example, Y.C.'s argument that juveniles are entitled to

jury trials, may be more appropriately raised in the context of

an appeal in which a juvenile has requested a jury trial and the

request has been denied.          See, e.g., State ex rel. A.C., 424

N.J. Super. 252, 253 (App. Div. 2012); but see In re C.B., 708

So. 2d 391, 400 (La. 1998) (in the absence of the right to a

jury trial, a statute providing for the automatic transfer of

seventeen-year-old        juveniles        to      adult     prisons          was

unconstitutional); Monroe v. Soliz, 939 P.2d 205, 208 (Wash.

1997) (finding that juvenile transfer statute did not implicate

the jury trial right, but juveniles were entitled to due process

prior to transfer).       In this case, Y.C. did not request a jury

trial in juvenile court, and he pled guilty.                Likewise, he is

not seeking to withdraw his guilty plea and, hence, this case

may not be an appropriate vehicle to decide whether he should

have been notified, prior to his plea, that he could at some

point be transferred to an adult prison.              See, e.g., State v.

Bellamy, 178 N.J. 127, 138-40 (2003).             Further, even if we were

inclined to reconsider issues already decided in J.J., we would

not do so on this record.

    We   lack    an    adequate   factual    record   to    consider    Y.C.'s

challenge   to   the    substance     of    the   interim   policy,     and     a

challenge to the agency's regulations, which have thus far only

been proposed, must wait until the regulations are adopted.                    In


                                      11                               A-1030-13T2
ordering the agency to adopt regulations within 180 days, we

contemplate that, within a reasonable time, there will be a

vehicle for an appropriate challenge and a record on which to

raise   many    of    the    issues      that     we     are    not       deciding     in   this

appeal.

      We do, however, have no hesitation in concluding that the

agency violated the APA in adopting the interim policy.                                       The

policy is, in essence, a set of regulations promulgated without

following      the   required      APA     procedures          set       forth   in   N.J.S.A.

52:14B-4.       If    the    JJC       believed    it     had       an    emergent     need   to

transfer juveniles to adult facilities, it should have adopted

emergency      regulations,        because        J.J.      required        that      it    adopt

regulations before conducting transfers.                            See N.J.S.A. 52:14B-

4(c) (adoption of emergency regulations); Cnty. of Hudson v.

Dep't of Corr., 152 N.J. 60, 73 (1997).

      With respect to a remedy in this case, we acknowledge that

transferring adjudicated juveniles to adult prisons implicates

multiple significant issues that cannot be decided without an

appropriate record.              For example, we have held that juveniles

are   not   entitled        to    jury    trials       in      juvenile      court,        partly

because the goals of the juvenile justice system are primarily

rehabilitative, as opposed to punitive as in the adult criminal

justice     system,    and       the    consequences           of    an    adjudication       of

delinquency do not include a prison sentence.                              See A.C., supra,


                                            12                                         A-1030-13T2
424 N.J. Super. at 255, aff'g 426 N.J. Super. 81 (Ch. Div.

2011).        Additionally,         as     Y.C.'s     counsel    points      out,     when    a

juvenile decides to plead guilty in juvenile court, he or she is

not notified beforehand that the plea may ultimately result in a

transfer to an adult prison.

       On     this    appeal,       Y.C.    characterizes        his       transfer    as     a

massive shift in the conditions of his confinement, and a near-

complete deprivation of the rehabilitation opportunities he had

at the JJC.           The JJC asserts that the transfer constitutes a

mere       change    of     "location      and     housing"     which       implicates       no

significant           due      process        concerns.         Both        sides      offer

representations rather than record evidence in support of their

arguments.

       As we noted in J.J., a definitive decision on what process

is due a juvenile before the JJC makes a transfer determination

may depend on the conditions in which transferred juveniles are

confined after transfer and the services made available to them.

J.J.,      supra,     427    N.J.    Super.      at   557     n.7.      Those     important

considerations include whether transferred juveniles are housed

with       adult-sentenced      inmates;         whether      the    juveniles      receive

similar rehabilitative services in prison as would be available

in     a    JJC     facility;    and       whether     transfers       are    treated        as

permanent, or whether they are treated as temporary and subject

to   periodic        review,    with     transfer      back     to   the    JJC   being      an


                                              13                                    A-1030-13T2
option if the juvenile's behavior improves.                    See Monroe, supra,

939 P.2d at 209 (noting that Washington State regulations permit

transfer back to a juvenile facility).

     In     this    case,     the   JJC   acted   in    derogation   of    our   J.J.

decision directing the agency to adopt new regulations before

transferring juveniles to adult prisons.                      Instead, the agency

promulgated a set of interim policies that were not adopted as

regulations        and   do   not   satisfy     the    APA.     Although   the    JJC

eventually proposed new regulations, they still have not been

adopted.4      As a result, the JJC has not created any factual

record (e.g., through public comments and the agency's responses

to those comments) to justify the agency's procedures or permit

us to evaluate whether they pass statutory or constitutional

muster.5


4
  At oral argument, the JJC's counsel advised us that the agency
had decided to make changes to the regulations it originally
proposed and would need to re-propose the regulations with the
changes.    Hence, it is premature for us to opine on the
standards set forth in the regulations as originally proposed,
since those evidently will not be the rules the agency finally
adopts.
5
  We do not rule out the possibility that a challenge to the
regulations, when they are finally adopted, could require a
referral to a trial court to make a complete factual record.
See R. 2:5-5(b); J.B. v. N.J. State Parole Bd., 433 N.J. Super.
327, 330-31 (App. Div. 2013), certif. denied, ___ N.J. ___
(2014).   We note, for example, that Wilkinson v. Austin, 545
U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005), concerning
the due process protections required before an inmate can be
transferred to a "Supermax" facility, was based on a record
                                                    (continued)

                                           14                               A-1030-13T2
       The    hearing    process    conducted            by    the    JJC    in   this   case

provided an inadequate record on which to decide the serious

issues    Y.C.    seeks     to   present       on       this   appeal.        The    hearing

officer was a JJC employee and thus not a neutral decision-

maker.       Although Y.C. had an attorney ready, willing and able to

represent him, he was instead represented by the JJC Ombudsman,

who was not an attorney and was not independent of the JJC.                                 And

the proceeding was not recorded.                    Thus, even if we remanded for

a rehearing before the JJC, its current hearing procedures would

be insufficient to produce a record appropriate for the decision

of   novel     legal    issues.         As   we     noted      in    J.J.,   those     issues

include      whether    a   juvenile         has    a    due    process      right     to   be

represented by counsel at a transfer hearing. J.J., supra, 427

N.J.     Super.   at     557     n.7.        Because          Y.C.    has    already     been

transferred to an adult prison, his case will illustrate what

happens to transferred juveniles in practice, as opposed to in

theory.      But, as noted, we have no confidence that such a record

can be made using the JJC's in-house hearing procedures.

       For all of those reasons, we order that the hearing on

remand be conducted by the Office of Administrative Law rather



(continued)
created at "an 8-day trial with extensive evidence, including
testimony from expert witnesses . . . ." Id. at 218, 125 S. Ct.
at 2391, 162 L. Ed. 2d at 187.


                                             15                                      A-1030-13T2
than by a JJC hearing officer.6      At that hearing, Y.C. shall have

the right to be represented by counsel.           Both sides shall have

the right to present evidence on these issues:          the reasons why

Y.C. should or should not have been transferred to an adult

prison, consistent with the standards set forth in the juvenile

transfer   statute,     N.J.S.A.     52:17B-175(e);     Y.C.'s        current

conditions of confinement, including whether he is being housed

with adult-convicted inmates and whether he is being provided

with   rehabilitative   services     comparable    to   those    he    would

receive in a JJC facility; and whether, given his history of

conduct at the adult prison, it may be appropriate to transfer

him back to a JJC facility, even if his initial transfer to an

adult prison was justified.        Because this is, to some extent, a


6
  We find no statutory impediment to the OAL hearing such a case.
As an agency "in, but not of" the Department of Law and Public
Safety, N.J.S.A. 52:17B-170, the JJC falls within the definition
of "State agency" contained in the Administrative Procedures
Act.    N.J.S.A. 52:14B-2.     Moreover, even an agency whose
hearings ordinarily are not heard before the OAL may make a
"specific request" that an administrative law judge (ALJ) be
assigned to hear one or more of its contested cases.     N.J.S.A.
52:14F-8(a).   Those agencies include, for example, the Parole
Board.   Ibid.   Hence, there is authority for an ALJ to hear
cases that ordinarily would be heard by the agency itself, as
well as cases that involve a prison inmate or adjudicated
juvenile, whose hearing may require special security measures.
See also J.E. ex rel. G.E. v. State, 131 N.J. 552, 561-62 (1993)
(Division of Developmental Disabilities decision to transfer
developmentally disabled individual to new residence); N.J. Div.
of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 412-13
(App. Div. 1998) (Division of Youth and Family Services
determination of abuse and neglect).


                                    16                            A-1030-13T2
test case, the ALJ should err on the side of allowing both sides

to   present    as   complete    a    record      as   possible.         See     In    re

Carberry, 114 N.J. 574, 588 (1989) (noting the importance of a

complete   factual      record       when    a     case     raises   a    potential

constitutional issue).

      As with other administrative hearing matters, the assigned

administrative law judge will issue an initial decision, which

the agency head may then adopt, reject or modify.                    See N.J.S.A.

52:14B-10(c).        Consistent       with       N.J.S.A.    52:17B-175(a),           the

Department of Corrections shall provide security during the OAL

hearing,   at    whatever   facility         is     deemed    appropriate         after

consultation with the OAL.            We direct that the proceedings on

remand be completed within ninety days, unless Y.C. consents to

an extension of time.7          Because the appropriate proof standard

may be an issue on any further appeal, we direct that the ALJ

make alternative findings as to whether the JJC proved its case

by clear and convincing evidence and, if not, whether the agency

proved its case by a preponderance of the evidence.



7
  Out of deference to the agency's security concerns and based on
our review of the evidence presented thus far, we are not
ordering that Y.C. be immediately returned to a JJC facility.
Therefore, the proceedings on remand should be conducted
expeditiously. However, we do not want Y.C. to be precluded by
time constraints from presenting a complete defense and making a
complete record.




                                        17                                     A-1030-13T2
      We direct the JJC to adopt regulations within 180 days.

Until the JJC adopts regulations, the JJC may not transfer any

adjudicated juvenile from JJC custody to an adult prison without

an   OAL   hearing   at    which   the    juvenile    has    the   right     to   be

represented by counsel.            In response to our inquiry at oral

argument, the JJC's attorney advised us that these types of

transfers are uncommon and that approximately five juveniles are

transferred    from       JJC   custody       to   adult    prisons   annually.

Therefore, we anticipate that the interim requirements we impose

in this opinion will not be unduly burdensome or a disruption to

the JJC's mission.8

      Reversed and remanded.        We do not retain jurisdiction.




8
  To address a concern expressed by the JJC at oral argument, we
emphasize that this opinion is limited to transfers of
adjudicated juveniles from JJC custody to adult prisons.      It
does not apply to adult inmate disciplinary hearings conducted
by the Department of Corrections, transfers of adult-convicted
inmates between DOC facilities, transfers of juveniles from one
JJC facility to another, or routine JJC disciplinary proceedings
which do not concern transferring a juvenile to an adult
facility.


                                         18                                A-1030-13T2
