The Law Firm of PHILIP STEPHEN FUOCO
24 Wilkins Place Haddonfield, NJ 08033 (856) 354-1100 Attorneys for Plaintiffs

IAN HAWKER, NELSON MILES and JERMAINE LAWRENCE, on behalf of themselves and all others similarly situated,
Plaintiffs
v.
ANDREW CONSOVOY, WILLIAM T. MCCARGO, LORAINE KULICK, PETER W. LOOS, DOMINIC PORROVECCHIO, ROLANDO GOMEZ RIVERA, RACHEL TORRES-CHOWANIEC and RUBY J. WASHINGTON,
Defendants

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
CIVIL ACTION NO.

Hawker v. Consovoy

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PC-NJ-0006-0001

CLASS ACTION COMPLAINT

Introduction 1. This action is brought on behalf of those persons least
favored among the citizens, politicians and political entities in the State of New Jersey - persons convicted of crimes.
2. For at least the last year, this class of persons has made repeated attempts to obtain even the rudiments of due process.
3. Yet because they are an unfavored group, unpopular, with no political power, no lobbying mechanism and an inability to

raise either funds or public consciousness, the political

appointees of the New Jersey State Parole Board (hereinafter known collectively as "the defendants") have ignored the plaintiff class' pleas for justice, and trampled upon their clearly defined, undisputed constitutional rights.
4. This action enlists the help of the federal courts, as the prisoners' last avenue of hope, to enforce their well established, recognized, federal constitutional right to due process.
5. In short, this action demands that the federal courts impose the rule of law on the board members of a runaway state agency, who appear to be acting in an arbitrary, capricious, abusive and vindictive manner.
6. By doing so, the federal court can restore a modicum of dignity to a class of human beings who most need its help.
7. The defendants have embarked upon a studied, intentional pattern and practice which denies plaintiffs and the class their constitutional right to parole.
8. This action does not seek the release of any inmate, but merely demands that the defendants comply with the mandatory procedures and deadlines set forth in the New Jersey Parole Act governing the manner in which parole is administered. Jurisdiction and Venue
9. This court has jurisdiction over this matter under 28 U.S.C. §1331, as plaintiffs' claims arise under 42 U.S.C. §1983

and the Fourteenth Amendment. 10. The named plaintiffs and class representatives in this
action are inmates currently incarcerated at Riverfront State Prison, in Camden, New Jersey. The acts and omissions alleged herein occurred, inter alia, in Camden, New Jersey. The Parties
11. Plaintiff Ian Hawker, New Jersey Inmate #313963, is an inmate currently incarcerated at Riverfront State Prison.
12. Plaintiff Nelson Miles, New Jersey Inmate #277614, is an inmate currently incarcerated at Riverfront State Prison.
13. Plaintiff Jermaine Lawrence, New Jersey Inmate #3 01353, is an inmate currently incarcerated at Riverfront State Prison.
14. The State of New Jersey and/or the New Jersey State Parole Board are not defendants in this action.
15. Defendant Andrew Consovoy is the current Chairman of the New Jersey State Parole Board. He is sued in his official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, he is sued in his individual capacity only.
16. Defendant William T. McCargo is Vice Chairman of the New Jersey State Parole Board. He is sued in his official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, he is sued in his individual capacity only.

17. Defendant Loraine Kulìck is a member of the New Jersey State Parole Board. She is sued in her official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, she is sued in her individual capacity only.
18. Defendant Peter W. Loos is a member of the New Jersey State Parole Board. He is sued in his official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, he is sued in his individual capacity only.
19. Defendant Dominic Porrovecchio is a member of the New Jersey State Parole Board. He is sued in his official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, he is sued in his individual capacity only.
20. Defendant Rolando Gomez Rivera is a member of the New Jersey State Parole Board. He is sued in his official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, he is sued in his individual capacity only.
21. Defendant Rachel Torres-Chowaniec is a member of the New Jersey State Parole Board. She is sued in her official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, she is sued in

her individual capacity only. 22. Defendant Ruby J. Washington is a member of the New
Jersey State Parole Board. She is sued in her official capacity as to the class claims for injunctive relief. To the extent the class seeks a class wide award of nominal damages, she is sued in her individual capacity only. Class Action Allegations
23. Plaintiffs bring this action, inter alia, as a class action pursuant to Fed.R.Civ.P. 23, seeking primarily injunctive and declaratory relief on behalf of all inmates in New Jersey State Prisons who have reached a parole eligibility date without receiving the pre-parole report mandated by N.J.S.A. 30:4123.54(a) or the parole hearing mandated by N.J.S.A. 30:4l23.55(c).
24. This action does not seek the release of any inmate. Instead, plaintiffs seek primarily injunctive and declaratory relief requiring the defendants to comply with the mandatory deadlines set forth in the New Jersey Parole Act for provision of pre-parole reports and parole hearings.
25. Plaintiffs are unable to state the exact number of class members without discovery of defendants' records. Upon information and belief, however, there are potentially 1,000 class members.
26. There are numerous common questions of law or fact

affecting the rights of class members, including inter alia:
a. whether the New Jersey Parole Act creates a constitutionally protected liberty interest in the procedures by which parole may be deferred, delayed or denied;
b. whether the class is entitled to a declaratory judgment that the failure to follow the statutorily mandated procedures set forth in the New Jersey Parole Act for deferral, delay or denial of parole violates the due process rights of the class;
c. whether the failure to provide pre-parole reports within the deadline mandated by N.J.S.A. 30:4-123.54(a) violates the due process rights of the class;
d. whether the failure to hold parole hearings within the deadline mandated by N.J.S.A. 30:4-123.55(c)violates the due process rights of the class;
e. whether the class is entitled to a class wide award of nominal damages for the violation of their statutory right to a preparole report and parole hearing before the parole eligibility date.
27. Plaintiffs are all members of the class they seek to
represent; ¿.e. they are all inmates who have reached their
parole eligibility date without receiving the statutorily
required pre-parole report or parole hearing.
28. Plaintiffs will thoroughly and adequately protect the
interests of the class, having retained qualified and competent
legal counsel to represent them and the class.
29. The prosecution of separate actions by individual class
members will and have created a risk of inconsistent or varying

adjudications. 30. Numerous actions are being prosecuted in the state and
federal courts on these very issues with varying results. 31. Moreover, upon information and belief, it has been the
policy of the defendants to provide the required pre-parole reports and hearings to any inmate who files an individual action challenging these same practices.
32. This is simply an effort to render the individual actions moot, to undercut the standing of those who challenge these very clear violations and to avoid a remedy for the violation of the rights of all class members as described herein.
33. The defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate injunctive and declaratory relief for the class as a whole.
34. A class action is superior to other available methods for the fair and efficient adjudication of the controversy.
The New Jersey Parole Act and the Liberty Interest it Creates
35. The New Jersey Parole Act, N.J.S.A. 30:4-123.53 et sea, creates a protected liberty interest sufficient to entitle inmates to federal due process and constitutional protection with respect to parole determinations.
36. N.J.S.A. 30:4-123.53 through 30:4-123.55 creates a protected expectation that each inmate will receive three things
8

within a specified time period before his or her parole eligibility date:
a. a written pre-parole report; b. a review of that report by a hearing officer; and c. an actual hearing before a parole board panel. 37. Specifically, N.J.S.A. 30:4-l23.54(a) requires that in every case where an inmate is approaching a parole eligibility date, staff members of the Parole Board shall prepare and file a written "pre-parole" report at least 120 days before the inmate reaches his or her parole eligibility date. 38. N.J.S.A. 30:4-123.54(c) provides that each inmate must receive a copy of this pre-parole report, at least 105 days before his or her eligibility date, so that the inmate can submit written comments on the report before the eligibility date. 39. N.J.S.A. 30:4-123.55(a) provides that "prior to" the parole eligibility date, a "designated hearing officer shall review" the pre-parole report required by N.J.S.A. 30:4-123.54. 40. N.J.S.A. 30:4-123.55(c) provides that, if the hearing officer determines from the pre-parole report that parole should be denied, a parole hearing "shall be conducted by the appropriate board panel at least 30 days prior to the eligibility date." 41. The consequences of failing to provide the statutorily guaranteed pre-parole report, the review by a hearing officer and

the parole hearing are clearly spelled out in N.J.S.A. 30:4-
123.53(a): the inmate "shall be released."
42. Specifically, N.J.S.A. 30:4-l23.53(a) states:
An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to section 10 of P.L. 1979, c. 441 [N.J.S.A. 30:4-123.54] or developed or produced at a hearing held pursuant to section 11 of P.L. 1979, c. 441 [N.J.S.A. 30:4-123.55] indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed pursuant to section 15 of P.L. 197 9, c. 441 [N.J.S.A. 30:4-123.59] if released on parole at that time.
43. Taken together, these sections expressly guarantee that
any adult inmate "shall be released" at the time of his or her
initial parole eligibility date "unless" a pre-parole report is
filed, or an actual parole hearing before a board panel is held,
prior to that eligibility date. See Greenholtz v. Inmates of
Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979).
44. The New Jersey Supreme Court itself has expressly held
that the New Jersey Parole Act therefore creates a "liberty
interest" which requires that due process be observed in the
deferral, delay and/or denial of parole. See New Jersey Parole
Board v. Byrne, 93 N.J. 192, 206 (1983), holding that the United
States Supreme Court's opinion in Greenholtz v. Inmates of
Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979)
10

applied to the New Jersey Parole Act.
The Defendants' Chronic Failure to Meet the Mandatory Deadlines
45. For more than a year now, the defendants have not complied with these statutory requirements.
46. Rather, for some time now, thousands of inmates in New Jersey state prisons have been held in custody past their parole eligibility date, without having the required pre-parole report prepared.
47. For some time now, thousands of inmates in New Jersey state prisons have been held in custody past their parole eligibility dates without the required parole hearing by a board panel.
48. This is in violation of the plain language of the parole statute, which requires that each of these events "shall" occur within a specified number of days before the parole eligibility date.
49. The mandatory language used in these statutes vests the defendants with no discretion whatsoever as to the meeting of these deadlines.
50. Indeed, N.J.S.A. 30:4-123.53(a) creates a presumption in favor of release on parole, expressly providing that "unless" these events take place, the inmate "shall be released on parole at the time of parole eligibility."
11

Defendants' Actions Are Intentional 51. Upon information and belief, the defendants1 standard
response to criticism of this illegal "backlog" is to claim that it will be eliminated in about three months.
52. For example, in March of 1999, the defendants promised that this "backlog" would be resolved by June of 1999. See Attachment A, Parole Board letter dated March 29, 1999. promising to eliminate "all past eligible parole cases in every institution by the end of June."
53. Despite such promises, the problem was not resolved by June of 1999 and has never been resolved.
54. Rather, the defendants have simply extended the proposed deadline, continually claiming to be only "months away" from resolving the "backlog."
55. On February 7, 2000, the New Jersey Law Journal reported that there were still more than 1,000 New Jersey inmates eligible for parole whose mandatory parole determinations had been delayed for as long as a year, without either the pre-parole report required by N.J.S.A. 30:4-l23.54(a), the review by a hearing officer mandated by N.J.S.A. 30:4-l23.55(a) or a parole hearing as provided by N.J.S.A. 30:4-l23.55 (c) .
56. In a New Jersey Law Journal interview with defendant Consovoy dated February 7, 2000, defendant promised with regard to this backlog: "I guarantee you in a month or two we will be
12

even." See Attachment B. 57. Despite this "guarantee," the backlog still existed "in
a month or two." Indeed, by March of 2000, the defendants were again extending the deadline by which they promised to eliminate the backlog; this time to "May 2000."
58. The backlog exists to this day. 59. Indeed, on April 27, 2000, counsel for the Parole Board admitted to the Association of Criminal Defense Lawyers of New Jersey that there are currently at least 300 inmates in New Jersey state prisons who have been held past their parole eligibility date without receiving the required pre-parole report or board hearing. 60. Regardless of the reasons for this "backlog," the continued detention of inmates who have reached their parole eligibility date without a pre-parole report having been filed, a review by a hearing officer or a parole hearing is absolutely precluded by the clear language of the New Jersey Parole Act. 61. Despite this, the defendants have not authorized the release of such inmates, as required by the statute. 62. Nor have they complied with the mandatory deadlines set forth in these statutes for reports and hearings. 63. The defendants continue to allow hundreds--perhaps thousands--of inmates to remain in custody past their eligibility date, without complying with the procedures specifically required
13

in order for parole to be lawfully deferred, delayed or denied. 64. This practice strips each inmate and class member of his
or her last remaining vestige of human dignity. 65. The defendants continue to do this with impunity, secure
in the knowledge that the political leaders in the state - of both parties - have no concern for the plight of prisoners.
66. The defendants' actions are knowing and intentional. Further Evidence of Defendants' Intent
67. In the fall of 1999, the New Jersey Parole Board ceased answering calls made to its public telephone numbers.
68. Speaking at a meeting of the Association of Criminal Defense Lawyers of New Jersey in September of 1999, defendant Consovoy admitted that this action was taken in response to the large number of complaints by inmates and attorneys about the parole backlog!
69. Despite promises by Consovoy in September of 1999 that the Board's phone lines would be re-opened soon, these phones were later taken over by a voice-mail system.
70. To this day, it is impossible to reach a human voice at the Parole Board during an initial call to the publicly listed numbers, including those listed in the New Jersey Law Diary.
71. Instead, a taped message states that all callers, including attorneys, must write a letter.
72. These actions by the defendants are further evidence
14

that they could care less about the well established constitutional rights of the class.
COUNT I
Fourteenth Amendment and 42 U.S.C. §1983
73. Plaintiffs incorporate the allegations contained in each of the preceding paragraphs as if fully set forth at length herein.
74. Plaintiffs and the class have suffered various constitutional injuries at the hands of the defendants as described herein, committed under the color of law, which deprived the class of rights, privileges and immunities secured to them by the laws and Constitution of the United States, including but not limited to the following:
a. The right to protection from deprivation of life, liberty and property without due process, as secured by the Fourteenth Amendment; and b. The right to be protected against arbitrary and capricious summary punishment, secured by the right to due process under the Fourteenth Amendment; c. The right to be free from cruel and unusual punishment by being subject to totally arbitrary and capricious extensions of their prison sentences without any relationship to the sentence imposed or the crime(s) of which they are convicted.
75. Specifically, the defendants have violated the due
process rights of the class by pursuing a custom, practice or
15

policy of ignoring the mandatory statutory requirements governing the delay, deferral and/or denial of parole, including the mandatory deadlines for provision of pre-parole reports and parole hearings.
76. Regardless of whether any inmate would have been actually released on parole had the mandatory procedures been followed, the violation of these due process rights is, in and of itself, a separate violation of the constitutional rights of the class.
COUNT II Declaratory Judgment
28 U.S.C. §2201 77. Plaintiffs incorporate the allegations contained in each of the preceding paragraphs as if fully set forth at length herein. 78. At all relevant times the defendants knew that the class was entitled to the pre-parole report mandated by N.J.S.A. 30:4123.54(a) and the parole hearing mandated by N.J.S.A. 30:4123.55 (c), no later than the deadlines set forth in these statutory provisions. 79. Despite this, the defendants have known since at least 1998 that they have allowed a custom, policy and practice to develop which fails to meet these deadlines and thus fails to
16

meet the statutory requirements for the lawful delay, deferral or denial of parole.
80. Specifically, the defendants have pursued a policy under which inmates are routinely not provided with the statutorily guaranteed pre-parole report or parole hearing prior to the inmate's parole eligibility date.
81. A justiciable controversy exists between the class and the defendants with respect to the validity and legality of the aforesaid policy.
82. A decree by this court with respect to the issues of the validity and legality of this policy is reasonably calculated to prevent needless additional litigation in this jurisdiction between class members and the defendants and will provide the basis for appropriate injunctive relief.
WHEREFORE, plaintiffs request judgment: a. Determining that the instant action is a proper
class action under Federal Rule 23 (b)(2); b. For declaratory relief holding that defendants'
policies as described herein violate plaintiffs' constitutional rights;
c. For injunctive relief against the defendants in their official capacity, requiring them:
(1) to file a pre-parole report for each inmate at least 120 days prior to the parole eligibility date as required by N.J.S.A. 30:4-123.54(a);
17

(2) to provide each inmate with a copy of the pre-parole report at least 105 prior to the parole eligibility date as required by N.J.S.A. 30:4-123.54 (c) ; and
(3) to provide each inmate where parole has not been recommended with a parole hearing before a board panel at least 3 0 days prior to the parole eligibility date;
(4) to provide an adequate alternative mechanism that will end the continual violations as soon as possible.
d. For a class wide award of nominal damages against
the defendants in their individual capacity for the violations of
the due process rights set forth herein;
e. For attorney's fees, costs of suit, interest and
pre-judgment interest;
f. For such other legal and equitable relief as the
court may deem necessary to correct the egregious situation which
currently exists.
The Law Firm of PHILIP STEPHEN FUOCO

Dated: May 2, 2 000

BY: Philip Stephen Fuoco Joseph A. Osefchen

18

 Hawker v. Consovoy, 198 F.R.D. 619 (2001)
198 F.R.D. 619 United States District Court,
D. New Jersey.
Ian HAWKER, Nelson Miles, and Jermaine Lawrence, on behalf of themselves and all others
similarly situated, Plaintiffs, v.
Andrew CONSOVOY, William T. McCargo, Loraine Kulick, Peter W. Loos, Dominic
Porrovecchio, Rolando Gomez Rivera, Rachel Torres–Chowaniec, and Ruby J. Washington,
Defendants.
Civ.A. No. 00–2106(JAP). | Jan. 22, 2001.

74–75). As a result of the Parole Board’s alleged ongoing inaction, the Named Plaintiffs and thousands of potential class members have remained incarcerated past their respective parole eligibility dates. (Compl. at ¶¶ 45–48). The complaint demands declaratory and injunctive relief, and a class-wide award of nominal damages.3 (Compl. at ¶¶ 24, 82). The Court has subject-matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1343.

1

Because the complaint seeks, inter alia, injunctive

relief against the Defendants in their official capacity

(Compl. at ¶¶ 15–22), the fact that the composition of

the Parole Board has changed since May 2000 is

inconsequential because any successor to a named

defendant is automatically substituted as a party. See

Fed.R.Civ.P. 25(d)(1).

Attorneys and Law Firms
*620 Philip Stephen Fuoco, Joseph A. Osefchen, The Law Firm of Philip Stephen Fuoco, Haddonfield, NJ, for Plaintiffs.
John J. Farmer, Jr., Attorney General of New Jersey, Dianne M. Moratti, James D. Harris, Deputy Attorneys General, Trenton, NJ, for Defendants.
Opinion
OPINION
PISANO, District Judge.
I. BACKGROUND On May 2, 2000, Ian Hawker, Nelson Miles, and Jermaine Lawrence (“Named Plaintiffs”), three inmates incarcerated at Riverfront State Prison in Camden, New Jersey, filed a class action complaint pursuant to 42 U.S.C. § 1983 against Andrew Consovoy, William T. McCargo, Loraine Kulick, Peter W. Loos, Dominic Porrovecchio, Rolando Gomez Rivera, Rachel Torres–Chowaniec, and Ruby J. Washington (“Defendants”), the members of the New Jersey State Parole Board (“Parole Board”).1 (Compl. at ¶¶ 10–22). The complaint alleges that the Parole Board knowingly and consistently failed to meet the deadlines for the preparation of pre-parole reports and the conduction of parole hearings, as required by the New Jersey *621 Parole Act of 1979 (“Act”), N.J.S.A. 30:4–123.45 to 30:4–123.69, in violation of the due process clause of the fourteenth amendment to the United States Constitution.2 (Compl. at ¶¶ 7, 23–24, 46–47,

2

During the pendency of this action, the three Named

Plaintiffs received parole hearings, and were denied

parole. (Aff. of Kenneth Connolly at ¶¶ 3–5).

Consequently, their individual claims became no longer

viable. However, despite the Named Plaintiffs’ loss of a

personal stake in the litigation, the Court finds that the

action is not moot because their claims are “capable of

repetition, yet evading review.” See United States

Parole Comm’n v. Geraghty, 445 U.S. 388, 398, 100

S.Ct. 1202, 63 L.Ed.2d 479 (1980) (“When the claim

on the merits is ‘capable of repetition, yet evading

review,’ the named plaintiff may litigate the class

certification issue despite loss of his personal stake in

the outcome of the litigation.”).

3

The complaint does not seek compensatory damages,

and the release of any inmate by writ of habeas corpus

is specifically disavowed. (Compl. at ¶¶ 8, 24).

Immediately following the filing of the complaint, the parties began to hold settlement negotiations. During that period, the Defendants’ time to file an answer was extended, and the Court conducted several status conferences to monitor the parties’ progress. While settlement talks were occurring, the Court received many letters from potential class members commenting on various aspects of the case, and informing the Court of their inability to obtain redress from the Parole Board. As a result, the Court ordered the Clerk of the District Court to establish a document depository in which these correspondence would be maintained for review by interested parties.
As of September 2000, a settlement still had not been reached, and the Named Plaintiffs filed a motion to certify the class pursuant to Federal Rule of Civil Procedure (“Rule”) 23. The following month, they filed a motion for
1

Hawker v. Consovoy, 198 F.R.D. 619 (2001)

a preliminary injunction pursuant to Rule 65 for an order compelling the Parole Board to eliminate the parole hearing backlog, to ensure future compliance with the Act, and to appoint a special master to monitor the Parole Board’s activity. The Defendants opposed the Named Plaintiffs’ motions, and moved for summary judgment pursuant to Rule 56, or, in the alternative, to dismiss pursuant to Rule 12(b)(6).
In November 2000, before the Court addressed the merits of the pending motions, the parties informed the Court that they had executed a Settlement Agreement.4 The Court subsequently granted the parties’ request for class certification for the purpose of settlement only, and approved the methods for notifying the potential class members of the terms of the settlement. Notice of the proposed settlement was ordered to be published in the Philadelphia Inquirer and the Newark Star Ledger, and posted in all prisons and jails in which potential class members were incarcerated.5 The Court subsequently dismissed without prejudice the Named Plaintiffs’ motion for a preliminary injunction, and the Defendants’ dispositive motion.

4

The Settlement Agreement was signed by class counsel

on November 10, 2000, and by defense counsel on

November 13, 2000. Thus, the Court considers the

Settlement Agreement executed on November 13,

2000.

5

At the fairness hearing, Elaine G. Selan, a co-founder

of And Justice For All, a prisoner advocacy

organization, claimed that the Settlement Agreement

had not been adequately posted in Riverfront State

Prison and New Jersey State Prison. The Court rejects

Ms. Selan’s bare assertions in light of the fact that

numerous objections to the Settlement Agreement were

submitted from inmates incarcerated in both of those

facilities. (Defs.’ App. in Supp. of the Settlement

Agreement at Ex. 1). The Court concludes that

publication and posting of the notice were sufficient to

inform potential class members of the proposed

settlement, and to provide them an opportunity to

comment. See In re Prudential Ins. Co. of America

Sales Practices Litig., 148 F.3d 283, 306 (3rd

Cir.1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890,

142 L.Ed.2d 789 (1999) (“In re Prudential Ins. Co.”).

The parties’ execution of the Settlement Agreement, which resolves all claims, triggered the Court’s duty to confirm that the class certification requirements of Rule 23 *622 have been met, and to determine whether the settlement is fair and reasonable. Pursuant to that obligation, the Court conducted a fairness hearing on January 16, 2001. For the reasons set forth below and on the record following the fairness hearing, the Court finds

that the requirements of Rule 23 have been satisfied, and that the Settlement Agreement should be approved.

II. REQUIREMENTS OF THE ACT The Act establishes a comprehensive scheme for the administration of parole determinations for eligible inmates. The parole determination process entails the completion of various tasks, each having a deadline which is calculated with reference to the inmate’s parole eligibility date.6 The Act creates a presumption in favor of granting parole on the date of eligibility, unless the Parole Board can prove that the inmate should not be released. N.J.S.A. 30:4–123.53a; see also New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 206, 460 A.2d 103 (1983).

6

Although the Act generally imposes deadlines, these

deadlines “may be waived by the appropriate board

panel for good cause” if so requested by the hearing

officer or the inmate. N.J.S.A. 30:4–123.55e.

The first step in the process is the preparation of an eligible inmate’s pre-parole report by employees of the facility in which the inmate is incarcerated. N.J.S.A. 30:4–123.54a. The report must be filed with the parole board panel “[a]t least 120 days but not more than 180 days prior to the parole eligibility date.” Ibid. A pre-parole report details the inmate’s pre-incarceration records, behavior during the period of confinement, proposed parole plan, and likelihood of committing crimes if released. N.J.S.A. 30:4–123.54b(1). When the pre-parole report is filed with the parole board panel, the inmate also receives a copy. N.J.S.A. 30:4–123.54c. At that time, the inmate has the opportunity to submit “a written statement regarding the report, but shall do so within 105 days prior to the primary parole eligibility date.” Ibid.
The Act next mandates that “a designated hearing officer shall review the reports ... and shall determine whether there is a basis for denial of parole in the preparole report....” N.J.S.A. 30:4–123.55a. If the hearing officer finds no basis to deny parole and no need for a hearing, the officer is required to submit to the applicable parole hearing panel, “at least 60 days prior to the inmate’s parole eligibility date,” a written recommendation in favor of granting parole. Ibid. If the assigned parole panel member concurs with the hearing officer’s recommendation, the panel member will certify the inmate’s release “as soon as practicable after the eligibility date and so notify the inmate and the [parole] board.” N.J.S.A. 30:4–123.55b. But if the hearing officer or the panel member determines that parole should be denied, or that a parole hearing is necessary, the parole board and the inmate are notified, and a hearing is
2

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
conducted “at least 30 days prior to the eligibility date.” N.J.S.A. 30:4–123.55c. “At the hearing, which shall be informal, the board panel shall receive as evidence any relevant and reliable documents or in person testimony....” Ibid. An inmate has the right to present and to rebut evidence at the hearing. Ibid.
After the hearing, the parole panel may order that parole be granted or denied. N.J.S.A. 30:4–123.55d. If parole is denied, the panel must file with the parole board “within 30 days of the hearing a statement setting forth the decision.” Ibid. An inmate who is denied parole is given a future parole eligibility date based on relevant considerations, such as the severity of the crime and the inmate’s record. N.J.S.A. 30:4–123.56a. As the future parole eligibility date nears, the Parole Board must repeat the parole determination process to decide whether to release an inmate who was previously denied parole. N.J.S.A. 30:4–123.56c.
III. OVERVIEW OF THE SETTLEMENT AGREEMENT The Settlement Agreement divides all parole eligible inmates into categories based on when they became or will become parole eligible, and when the Parole Board had the capacity to know or will have the capacity to know of their parole eligibility date. A past eligible inmate is an inmate eligible for parole who has not received a parole hearing before his parole eligibility date. (Settlement *623 Agreement at 3). The category of past eligible inmates is divided into current past eligible inmates and future past eligible inmates. A current past eligible inmate is one who, prior to approval of the Settlement Agreement, is incarcerated and overdue for a parole hearing. A future past eligible inmate is one who will become a past eligible inmate after the date that the Settlement Agreement is approved.
Structural past eligible inmates are a sub-set of past eligible inmates, and are defined as those inmates “who become past eligible or will become past eligible in a manner beyond the control of the Parole Board which did not afford the full 120 days provided by N.J.S.A. 30:4–123.54a to prepare for the initial and panel parole hearings.” (Ibid.). In other words, an inmate becomes structural past eligible when the Parole Board cannot determine an inmate’s parole eligibility date sufficiently in advance of the date to comply with the first requirement of the Act, namely, the preparation of a pre-parole report no later than 120 days before the parole eligibility date.
An inmate can become structural past eligible in a number of ways, including, but not limited to, the following: (1) having received enough prior custody credits before sentencing; (2) being resentenced to a lesser term of

incarceration; (3) being resentenced to concurrent terms of imprisonment rather than consecutive terms; (4) having a longer sentence vacated; (5) having prison credits restored after they had been forfeited; and (6) having reconsidered a prior decision not to cooperate with the parole process. (Settlement Agreement at 3–5).

Under the terms of the Settlement Agreement, current past eligible inmates will receive a parole panel hearing within ten weeks after November 13, 2000, the date on which the Settlement Agreement was executed. (Settlement Agreement at 9). If more past eligible inmates are discovered after that date, those inmates will receive a parole panel hearing before the expiration of the ten-week period beginning on November 13, 2000, or within 60 days after discovery of their past eligible status, whichever period is longer. (Ibid.).
Inmates who become eligible for parole on or after the date that the Court approves the Settlement Agreement, but before two years following the approval date, will receive a parole panel hearing no later than their parole eligibility date. (Settlement Agreement at 10). Inmates who become eligible for parole more than two years, but less than four years, after the approval date, will receive a parole panel hearing no later than 30 days before the parole eligibility date, as required by N.J.S.A. 30:4–123.55c.7 (Ibid.). Any individual who becomes a structural past eligible inmate after the approval date will, within 120 days, either have a parole panel hearing or be given a written explanation why a parole hearing could not be provided. (Settlement Agreement at 11).

7

Pursuant to this term of the Settlement Agreement, the

Parole Board is required to conform its conduct to the

deadlines imposed by the Act no later than two years

after the approval date. (Settlement Agreement at 23).

The Settlement Agreement will terminate eighteen

months after the Parole Board certifies that it is in

compliance with all provisions of the agreement, but no

later than four years after the approval date. (Settlement

Agreement at 20–21).

The Settlement Agreement also establishes an administrative appeal process by which current past eligible inmates, future past eligible inmates, and structural past eligible inmates who claim not to have received a parole hearing in the manner specified by the Settlement Agreement can file an appeal to the Parole Board. (Settlement Agreement at 12). Appeal forms will be available to all inmates, and the Parole Board will be required to respond to an appeal filed by current past eligible inmates and future structural past eligible inmates within 30 days either by providing a parole panel hearing or a written explanation for its failure to do so. (Settlement Agreement at 12–13). With respect to appeals filed by future past eligible inmates, the Parole Board will
3

Hawker v. Consovoy, 198 F.R.D. 619 (2001)

have 45 days to respond. (Settlement Agreement at 14).
A denial of an appeal by the Parole Board will constitute a final agency decision within the meaning of New Jersey Court Rule 2:2–3(a)(2), thereby permitting an appeal as of right to the New Jersey Superior Court, Appellate Division. (Settlement Agreement *624 at 13). The Parole Board’s failure to respond timely to an appeal will be automatically deemed a final agency decision denying the appeal. (Ibid.). For every day after the applicable deadline that the Parole Board does not respond to an administrative appeal, it must pay a sanction in the amount of $17.50 to the American Friends Service Committee, Prisoners Resource Center (“AFSC”).8 (Ibid.).

8

At the fairness hearing, class counsel and defense

counsel stated that they selected AFSC as the recipient

of any sanctions based on their prior knowledge and

dealings with the organization. Counsel expressed their

confidence in this organization’s ability to ensure that

any money received would be expended prudently. At

least one inmate has questioned how the AFSC would

use the funds. Based on counsel’s representations, the

Court is satisfied that AFSC is a legitimate

organization, and will utilize any money on behalf of

inmates.

The Settlement Agreement also requires the Parole Board to submit to the Office of Administrative Law proposed amendments to N.J.A.C. 10A:71–4.2 and 10A:71–4.3, which will recognize the new appeal process. (Settlement Agreement at 16–17). In addition, there will be a proposed amendment to N.J.A.C. 10A:71–3.18(a)(3)(I), which will provide that a parole board panel can only defer a parole determination “90 days past the inmate’s parole eligibility date” when the panel is awaiting a psychological evaluation with respect to parole eligibility. (Ibid.).
Periodic reports detailing the progress of the Parole Board will be submitted to class counsel, and rosters listing all future past eligible inmates and future structural past eligible inmates will be posted monthly in every facility operated by the New Jersey Department of Corrections. (Settlement Agreement at 18–19). The Settlement Agreement also provides that the Parole Board will pay class counsel attorneys’ fees and costs in the amount of $110,000.9 (Settlement Agreement at 23). Finally, in the event that class counsel must seek to enforce any provision of the Settlement Agreement, class counsel is entitled to attorneys’ fees and costs in the amount of $200.00 per hour. (Settlement Agreement at 23–24).

9

Following the fairness hearing on January 16, 2001, the

Court determined that the award of attorneys’ fees and

costs to class counsel was fair and reasonable. The

Court relies on its oral findings with respect to this

issue.
IV. CLASS CERTIFICATION IS WARRANTED [1] A putative class representative seeking class certification must satisfy the four requirements of Rule 23(a), and must also demonstrate that the action is maintainable under one of the three categories set forth in Rule 23(b). Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3rd Cir.1998) (citation omitted), cert. denied, 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791 (1999). Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. [Fed.R.Civ.P. 23(a).]
A court must undertake a “rigorous analysis” to determine whether the putative class and its proposed representatives satisfy each of the prerequisites to class certification. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
[2] In considering whether class certification is appropriate, a court must refrain from conducting a preliminary inquiry into the merits of the action. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). However, it may be necessary for the court “to analyze the elements of the parties’ substantive claims and review facts revealed in discovery in order to evaluate whether the requirements of Rule 23 have been satisfied.” In re Ford Motor Co. Ignition Switch Prods. Liab. Litig., 174 F.R.D. 332, 353 (D.N.J.1997).
A. RULE 23(a) REQUIREMENTS
1. Numerosity [3] The first requirement under Rule 23(a) is satisfied when “the class is so numerous *625 that joinder of all members is impracticable....” Fed.R.Civ.P. 23(a)(1). To meet the impracticability requirement, joinder of every class member need not be impossible; instead, “difficulty or inconvenience of joining all members of the class” will suffice. Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397, 406 (D.N.J.1990) (quoting Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th Cir.1964)
4

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
(citation omitted)).
[4] “No magic number exists satisfying the numerosity requirement.” Moskowitz v. Lopp, 128 F.R.D. 624, 628 (E.D.Pa.1989); see, e.g., Manning v. Princeton Consumer Discount Co., 390 F.Supp. 320, 324 (E.D.Pa.1975) (finding fourteen class members enough to satisfy the numerosity requirement), aff’d, 533 F.2d 102 (3rd Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976); Minersville Coal Co. v. Anthracite Export Ass’n, 55 F.R.D. 426, 428 (M.D.Pa.1971) (finding three-hundred thirty class members not so numerous to render their joinder impracticable). The exact number of potential class members need not be ascertained; rather, an estimate of class size is sufficient. Zinberg, 138 F.R.D. at 405 (citation omitted).
[5] [6] The joinder of potential future class members who share a common characteristic, but whose identity cannot be determined yet is considered impracticable. Lanning v. Southeastern Pennsylvania Transp. Auth., 176 F.R.D. 132, 148 (E.D.Pa.1997). In addition, the numerosity standard is subject to relaxation when the potential class is primarily seeking injunctive relief. Weiss v. York Hosp., 745 F.2d 786, 808 (3rd Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985).
[7] During the course of this litigation, the claimed number of inmates overdue for a parole hearing has varied from several hundred to several thousand inmates, depending on the source of the statistics. (Compl. at ¶¶ 55, 59). As of November 14, 2000, the New Jersey Office of the Attorney General revealed that there were approximately 4,000 inmates overdue for a parole hearing, and more than 14,000 current inmates who will reach their parole eligibility date within eighteen months, making them potential future class members. (Pls.’ Mem. in Supp. of the Settlement Agreement at 19). Thus, as of mid-November 2000, there were at least 18,000 potential class members. Ibid.
At the fairness hearing, defense counsel admitted that the number of past eligible inmates had been as high as 5,800 inmates, although the backlog had been eliminated shortly before the fairness hearing was held. Although there may be less than 18,000 potential class members currently, many thousands of potential class members still exist. Consequently, the Court finds that the joinder of this many potential class members is not feasible. In addition, the Court also finds that relaxation of the numerosity standard is warranted because injunctive and declaratory relief are the chief foci of the complaint. Therefore, the Court finds that the numerosity requirement of Rule 23(a)(1) has been met.
2. Commonality

[8] The second requirement under Rule 23(a) is met when “there are questions of law or fact common to the class....” Fed.R.Civ.P. 23(a)(2). “The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” Baby Neal v. Casey, 43 F.3d 48, 56 (3rd Cir.1994) (citations omitted). “[I]njunctive actions ‘by their very nature often present common questions satisfying Rule 23(a)(2).’ ” Id. at 57 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1763, at 201 (1986)).
The Court finds that the following common questions exist in the present case: (1) whether the Prison Litigation Reform Act of 1996 (“PLRA”) precludes inmates who have not exhausted administrative remedies from maintaining an action challenging the Parole Board’s non-compliance with the Act;10 (2) whether the Parole Board’s failure to comply with the requirements imposed by the Act violates the due process rights of the potential class members; and (3) whether the potential class is entitled to declaratory and *626 injunctive relief requiring the Parole Board to provide pre-parole reports and to conduct parole hearings in a timely manner. These issues, which are common to all potential class members, are sufficient to meet the commonality requirement of Rule 23(a)(2).

10

See discussion infra Part V.A.4.

3. Typicality [9] The third requirement of Rule 23(a) is satisfied if “the claims or defenses of the representative parties are typical of the claims or defenses of the class....” Fed.R.Civ.P. 23(a)(3). This concept of typicality “is intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interests will be fairly represented.” Baby Neal, 43 F.3d at 57 (citations omitted). Actions which seek injunctive and declaratory relief on behalf of representative plaintiffs and potential class members “usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims.” Id. at 58 (citation omitted).
As previously stated, the Named Plaintiffs primarily seek injunctive and declaratory relief based on the legal theory that the Parole Board’s general policy or practice of failing to comply with the deadlines imposed by the Act amounts to a due process violation. At most, there are minor factual differences among the individual claims of the Named Plaintiffs and the potential class members. For example, the amount of time that individual inmates are
5

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
overdue for a parole hearing varies, as may the underlying reason for the delay. Such factual distinctions do not preclude the Court from finding that the claims of the Named Plaintiffs are typical of the potential class members’ claims. Therefore, the typicality requirement of Rule 23(a)(3) has been met.
4. Adequacy of Representation [10] The fourth requirement of Rule 23(a) is satisfied if “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The following two-prong test determines whether the representation has been adequate: “(a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.” Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3rd Cir.) (citation omitted), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); see also In re Data Access Systems Securities Litig., 103 F.R.D. 130, 140 (D.N.J.1984).
[11] With more than twenty-five years of experience handling class actions in federal and state courts, class counsel is competent and certainly qualified to represent the class, and, thus, the first prong of the adequacy of representation test is satisfied. (Pls.’ Mem. in Supp. of the Mot. for Class Certification at 15). With respect to the second prong, the Court finds that the Named Plaintiffs’ interests do not diverge from those of the potential class members since all inmates are seeking the same injunctive and declaratory relief. Because there is no demand for compensatory damages, every potential class member will benefit equally from equitable relief. Therefore, the Court finds that the fourth requirement of Rule 23(a) has been satisfied.

appropriate in the prison litigation context where only injunctive and declaratory relief are sought”). It should also be noted that in a Rule 23(b)(2) class action, *627 “unnamed members are bound by the action without the opportunity to opt out.”11 Barnes, 161 F.3d at 142–43.

11

A few class members have sought to be excluded from

the class. Because there is no right to opt-out under

Rule 23(b)(2), the Court denies their requests.

The Named Plaintiffs are seeking injunctive and declaratory relief in this civil rights case where the Parole Board’s alleged past general policy of inaction resulted in potential class members not having received pre-parole reports and parole hearings in a timely manner. The claims set forth in the complaint fit squarely within the framework of Rule 23(b)(2). Therefore, because the Court has determined that the requirements of Rule 23(a) and 23(b)(2) have been satisfied, the Court will certify the following proposed class of plaintiffs:

All State inmates as of the date of

the filing of this suit confined

within the facilities of the New

Jersey Department of Corrections

or county jails who have not

received a parole panel hearing

referenced

in

N.J.S.A.

30:4–123.55c or have not been

certified for release pursuant to

N.J.S.A. 30:4–123.55b by their

parole eligibility date as set by the

Parole Board and all inmates in the

future who are so confined and

have not received the above cited

hearing or release certification.

B. RULE 23(b)(2) REQUIREMENTS [12] [13] A class action may be maintained under Rule 23(b)(2) when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). This rule was “designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a numerous and often unascertainable or amorphous class of persons.” Baby Neal, 43 F.3d at 59 (quoting 1 H. Newberg & A. Conte, Newberg on Class Actions § 4–11, at 4–39 (1992)). Rule 23(b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief.” Id. at 58 (citing Weiss, 745 F.2d at 811); see also Austin v. Hopper, 15 F.Supp.2d 1210, 1229 (M.D.Ala.1998) (stating that “class certification under Rule 23(b)(2) is particularly

V. APPROVAL OF THE SETTLEMENT AGREEMENT “The law favors settlement, particularly in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation.” In re General Motors Corp. Pick–Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 784 (3rd Cir.) (citations omitted), cert. denied, 516 U.S. 824, 116 S.Ct. 88, 133 L.Ed.2d 45 (1995) (“In re G.M. Corp.”). After the parties reach a class action settlement, the court should approve the settlement if it is “fair, reasonable and adequate.” Id. at 785. This obligation is derived from Rule 23(e) which provides: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Fed.R.Civ.P. 23(e).
6

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
[14] In deciding whether to approve a settlement, the court must carefully balance two competing principles: “On the one hand, the court must scrupulously ensure that the proposed settlement is in the best interests of class members by reference to the best possible outcome. On the other hand, the court must not hold counsel to an impossible standard, as settlement is virtually always a compromise....” In re Ikon Office Solutions, Inc., 194 F.R.D. 166, 179 (E.D.Pa.2000). The Third Circuit has noted that cases “where the parties simultaneously seek certification and settlement approval, require ‘courts to be even more scrupulous than usual’ when they examine the fairness of the proposed settlement.” In re Prudential Ins. Co., 148 F.3d at 317 (quoting In re G.M. Corp., 55 F.3d at 805). In determining whether a proposed class action settlement is fair and reasonable, a court is guided by the following non-exhaustive list of factors:
(1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation....
[Girsh v. Jepson, 521 F.2d 153, 157 (3rd Cir.1975) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448 (2nd Cir.1974)).]
A. APPLICATION OF THE GIRSH FACTORS
1. Continued Litigation Will Require Additional Time and Expense [15] According to class counsel, “[a] parole hearing now is worth more to an inmate than the same parole hearing next year.” *628 (Pls.’ Mem. in Supp. of the Settlement Agreement at 17). By settling the case, class members avoid having to wait any longer for equitable relief. Until recently, many inmates had been waiting more than one year beyond their parole eligibility date for a parole hearing, and some inmates had waited even longer. Although the backlog of past eligible inmates has been eliminated, a rejection of the Settlement Agreement could result in another parole hearing backlog. Under the terms of the Settlement Agreement, inmates would no longer face long-overdue parole hearings, but further litigation could result in a relapse. Therefore, in this class action, where injunctive and declaratory relief are the primary

goals, additional delay diminishes the value of equitable relief to the class. If the Settlement Agreement is not approved, thereby requiring the class to prosecute successfully its claims, the Parole Board’s eventual compliance with the Act will be jeopardized.
Additional litigation would necessarily involve not only additional delay in obtaining relief, but also additional expense. To date, class counsel has financed the litigation on behalf of the inmates, and the public is ultimately responsible for the defense of the case and other costs. Due to the time, expense, and use of judicial resources involved in further litigation, settlement is preferable for all parties.

2. Although Class Members, Including the Named Plaintiffs, Have Objected to the Settlement Agreement, Their Claims Are Not Persuasive Since being notified of the pending settlement, a number of class members, including the Named Plaintiffs, have filed objections based on various grounds. Roughly two-hundred fifty inmates filed objections to the Settlement Agreement, although some of the objections are more accurately deemed criticism of the Parole Board.12 By letter dated December 9, 2000, the Named Plaintiffs claimed that class counsel had “not acted in the best interests of the Class.” At the fairness hearing, they reiterated their objections to class counsel’s representation and noted their dissatisfaction with the negotiated terms of the Settlement Agreement. The objections of the Named Plaintiffs were similar to those raised by other inmates and the Court addresses them below.13

12

The following are examples of objections from inmates

that did not relate to the fairness and adequacy of the

Settlement Agreement itself: (1) the Parole Board and

various other governmental entities have engaged in

conspiracies and other criminal activity; (2) inmates are

frequently unsuccessful when filing administrative

appeals; (3) inmates should be summarily paroled or

released if there are parole hearing delays; (4) the

Parole Board has too much power and not enough

accountability; (5) the Parole Board has submitted to

the Court inaccurate and manipulated statistics; and (6)

parole panels predetermine cases before the inmate

receives a parole hearing. The Court does not regard

such comments as proper objections to the Settlement

Agreement, and, consequently, will not address them.

13

The objections of the Named Plaintiffs are not entitled

to additional weight because of their status as

representative parties. See Walsh v. Great Atlantic &

Pacific Tea Co., 726 F.2d 956, (3rd Cir.1983) (“Class

counsel’s duty to the class frequently diverges from the

opinion of either the named plaintiff or other

7

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
objectors.”) (citations omitted).
After having carefully reviewed the objections, the Court would aptly characterize them, in their totality, as expressing a general discontentment with the terms of the Settlement Agreement. Many objections are the result of a fundamental misunderstanding of the underlying purpose of the class action, a lack of knowledge of the legal ramifications to class members of a court-approved settlement, and unrealistic or overly optimistic expectations. The objections fail to convince the Court that the Settlement Agreement is unfair or unreasonable.
i. Objection—The Settlement Agreement Does Not Provide for Neutral Oversight of the Parole Board The most common objection asserted by class members is that there will be no oversight by a neutral party to ensure the Parole Board’s compliance with the Settlement Agreement. Some inmates suggest that the Court appoint a special master. 18 U.S.C. § 3626(f)(1)(A) provides that a special master may be appointed “[i]n any civil action in a Federal court with respect to prison conditions....” However, a district court may *629 appoint a special master “only upon a finding that the remedial phase will be sufficiently complex to warrant the appointment.” 18 U.S.C. § 3626(f)(1)(B). Whether the Settlement Agreement satisfies the “sufficiently complex” standard is an issue that the Court need not confront because the appointment of a special master is not warranted in light of the adequate protections offered by the Settlement Agreement.
The Settlement Agreement contains a number of mechanisms to ensure the Parole Board’s compliance. First, the Settlement Agreement provides deadlines which the Parole Board must meet, and the Parole Board has expressed its intention to meet those deadlines. (Aff. of Mario Paparozzi at ¶¶ 19–20). In the event that the Parole Board fails to meet a deadline, an inmate will have the right to file an administrative appeal, and the Parole Board will be required to respond to an appeal timely or sanctions will automatically accrue. (Settlement Agreement at 12–16).
The Parole Board also faces the prospect that class counsel will sue to enforce the Settlement Agreement. Paragraph 2 of Section XIV of the Settlement Agreement provides in relevant part: “Plaintiffs shall be entitled to attorneys’ fees and costs for legal representation which is necessary to the successful enforcement of the Settlement Agreement and shall apply to the Court for determination of the amount of such fees and costs. Any application for such attorneys’ fees and costs shall be at a rate of $200.00 per hour.” (Settlement Agreement at 23–24). While some

inmates have expressed a lack of confidence in class counsel’s representation, the Court finds these concerns unfounded. Based on class counsel’s competent representation to date, the Court finds that class counsel would not hesitate to invoke that enforcement right if necessary.
Because the Settlement Agreement grants class members an administrative remedy, and class counsel an enforcement right, the Court finds that these terms sufficiently protect the interests of class members. Thus, the appointment of a special master, even if permitted, is not warranted.

ii. Objection—The Parole Board Does Not Admit Liability Many inmates strongly object to the Settlement Agreement because it does not include an admission of liability from the Parole Board. A related objection raised by class members is that the Parole Board is not taking full responsibility for the backlog. The Court finds that these objections do not render the settlement unfair or unreasonable. Section VIII of the Settlement Agreement states in relevant part: “The parties expressly acknowledge and agree that this Settlement Agreement does not constitute an admission of liability by Defendants or the Parole Board. Defendants have denied liability and expressly continue to deny liability despite their willingness to enter into this Settlement Agreement.” (Settlement Agreement at 21).
Often when parties settle a case, the defendant does not admit liability. Because the Parole Board refuses to admit liability, liability could only be established if the class successfully prosecuted the action and a judgment was entered against the Defendants. Doing so would involve additional litigation and entail significant cost and delay, as previously noted, as well as substantial risk. Based on these considerations, the Court finds that the absence of an admission of liability by the Defendants does not render the Settlement Agreement unfair or unreasonable.14

14

Although the Settlement Agreement contains no

admission of liability, the class members should take

solace in the fact that defense counsel conceded at the

fairness hearing that the Parole Board’s past conduct

was “unacceptable.” Although there has not been an

acceptance of responsibility in a legal sense, the Parole

Board, from the outset, has acted responsibly by

working to remedy the parole hearing backlog and to

ensure that it does not recur.

iii. Objection—A Two Year Time Frame for Parole 8

Hawker v. Consovoy, 198 F.R.D. 619 (2001)

Board Compliance with the Act Is Too Long Another objection lodged by some class members is that the Parole Board should be required to come into full compliance with the Act in less than two years, if not immediately. This objection does not persuade the Court that the Settlement Agreement is unfair *630 or unreasonable. As the Court previously explained, the alternative to settlement is additional litigation, which would cause a significant amount of delay given the procedural status of the case when the Settlement Agreement was executed. There has been no formal discovery in this action, and the Defendants did not file an answer. If further litigation were pursued, the Parole Board might not unilaterally decide to conform its conduct to the Act unless and until the class obtained a judgment, which could take several years to accomplish.
Although the Parole Board is given two years to comply with all deadlines imposed by the Act, during the two year grace period, the parole hearing backlog will be eliminated and the Parole Board’s conduct will nearly be in compliance with the Act.15 Under the Settlement Agreement, inmates who become eligible for parole after the approval date, but before two years after the approval, will be given parole hearings no later than their parole eligibility date. N.J.S.A. 30:4–123.55c mandates that parole eligible inmates receive a parole hearing no later than 30 days before the parole eligibility date. Therefore, the Parole Board only has an additional 30 days to conduct a parole hearing during the two year period following approval of the Settlement Agreement. The Court does not regard this term as unfair or unreasonable.

15

Some inmates claim that Parole Board vacancies are

responsible for the prior delays and will continue to

affect the Parole Board’s ability to comply timely with

the Settlement Agreement. Because the Settlement

Agreement does not provide for exceptions to or

relaxation of the deadlines if there are vacancies or

absences on the Parole Board, the Court rejects these

claims. It should also be noted that defense counsel

stated at the fairness hearing that there is pending

legislation which would add four new members to the

Parole Board. Additional Parole Board members would

reduce the burden on existing members, and permit

more parole hearings to be conducted.

Other inmates contend that the Parole Board, in any

effort to reduce quickly the backlog, conducted their

parole hearings before they received their pre-parole

reports. While this potential problem is not

contemplated by the Settlement Agreement, inmates

remain entitled to raise parole determination

irregularities during the administrative and judicial

appeal process.

iv. Objection—There Is No Provision for Compensatory

Damages Another common objection is that the Settlement Agreement fails to provide class members with compensatory damages. A related objection is that any sanctions that the Parole Board must pay for failing to respond timely to an administrative appeal should be paid to the class members, not the AFSC. The Court rejects these objections because the complaint did not seek compensatory damages.16 With respect to sanctions payable to AFSC, those payments are not intended to function as compensatory damages, but rather, are designed to ensure timely compliance with the newly created administrative appeal process. Thus, the absence of an award of monetary damages is neither unfair nor unreasonable.

16

The complaint did demand a class-wide award of

nominal damages, which, as a matter of law, amounts

to $1.00 per class member. See United States ex rel.

Tyrrell v. Speaker, 535 F.2d 823, 829–30 (3rd

Cir.1976). According to class counsel, a provision for

an award of nominal damages was specifically

excluded from the Settlement Agreement to avoid the

possibility that courts would subsequently bar class

members from obtaining compensatory damages in an

individual action. Many class members are apparently

unaware that they retain the right to file individual

actions demanding compensatory damages for

violations of the Act by the Parole Board,

notwithstanding their status as class members. Several

inmates have written to declare that they wish to pursue

an individual claim for compensatory damages. It is

important to note that approval of the Settlement

Agreement has no effect on any class members’ right to

file an individual action for compensatory damages,

and class members need not have filed an objection to

preserve that right.

v. Objection—The New Appeal Process Creates Another Hurdle for Inmates to Overcome Some class members object to the Settlement Agreement on the ground that the new administrative appeal process simply creates another layer of bureaucracy to the detriment of inmates. The Court disagrees with their assessment because the appeal process and the possibility of sanctions provide a strong incentive for the Parole Board to address an inmate’s concerns in a timely manner. These two mechanisms prevent the complaints of class members from languishing *631 without any formal response or explanation, which apparently was a widespread past problem.
The new appeal process also has the capacity to hasten the resolution of claims because a favorable decision for an inmate at the administrative level obviates the need to pursue a remedy in the courts, where a case is likely to
9

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
result in additional delays. Under the Settlement Agreement, the Parole Board will have to address an administrative appeal within 30 days or 45 days, depending on the category of inmate filing an appeal. Therefore, the Court finds no basis to conclude that the Settlement Agreement is unfair or unreasonable because it creates a new administrative appeal process.
The Court also disagrees with claims that the new appeal process is too confusing and intimidating. The Settlement Agreement provides that the Parole Board must post on a monthly basis in all prison libraries the names of all future past eligible inmates and future structural past eligible inmates. (Settlement Agreement at 19). Administrative appeal forms will also be available in those libraries. (Settlement Agreement at 12–15). There will be a different form for current past eligible inmates, future past eligible inmates, and future structural past eligible inmates. (Settlement Agreement at 26–28). However, completing an appeal form will only require the inmate to write his name, inmate number, the institution in which he is incarcerated, the date, and his signature. (Ibid.). The form for future structural past eligible inmates will additionally require the inmate to note his parole eligibility date. (Settlement Agreement at 28). Thus, the Court rejects the argument that filing an administrative appeal is a daunting task.
vi. Objection—The Settlement Agreement Is Too Favorable to the Parole Board Many inmates claim that the terms of the Settlement Agreement, in general, are too favorable to the Parole Board. The Court disagrees with this objection and concludes that it is based on inmates’ unrealistic expectations of what this class action intended to accomplish. These objectors must recognize that a settlement necessarily involves compromise. Having reviewed the terms of the Settlement Agreement and the demands of the complaint, the Court finds that the Settlement Agreement, in its totality, is fair and reasonable.
This class action is responsible for fundamental changes in the manner in which the Parole Board conducts its business. The execution of the Settlement Agreement has required the Parole Board to amend prior policies and procedures, and implement new ones, in order to comply fully with the Act. (Aff. of Mario Paparozzi at ¶ 11). The Settlement Agreement provides a comprehensive remedy for all current and future inmates, and has eliminated the parole hearing backlog. These results establish that the Settlement Agreement has had a number of significant beneficial effects for inmates, and almost all of the demands in the complaint have been accomplished.

3. Class Counsel Has Sufficient Knowledge to Evaluate the Merits of the Case “The parties must have an ‘adequate appreciation of the merits of the case before negotiating.’ G.M. Corp., 55 F.3d at 813. To ensure that a proposed settlement is the product of informed negotiations, there should be an inquiry into the type and amounts of discovery the parties have undertaken.” In re Prudential Ins. Co., 148 F.3d at 319. This is the standard of the third Girsh factor.
Although formal discovery did not commence before the Settlement Agreement was executed, a significant amount of informal discovery and investigation was conducted. (Pls.’ Mem. in Supp. of the Settlement Agreement at 21–22). Prior to the filing of the class action complaint, class counsel investigated the facts by interviewing more than one dozen inmates, a former employee of the Parole Board, and representatives from public service organizations. (Id. at 21). After the initiation of the action, the Office of the New Jersey Attorney General furnished detailed statistics concerning the extent of the parole hearing backlog. Class counsel also reviewed correspondence submitted by more than 1,000 inmates. (Id. at 22). As a result of the investigation and the *632 informal discovery process, the Court finds that class counsel possessed sufficient information to assess the issues presented and the merits of the case, and, thus, made an informed decision to settle the matter.

4. There Are Significant Risks that the Class Would Not Prevail on the Merits “The fourth and fifth Girsh factors survey the possible risks of litigation in order to balance the likelihood of success and the potential damage award if the case were taken to trial against the benefits of an immediate settlement.” In re Prudential Ins. Co., 148 F.3d at 319. Because the issue of compensatory damages is not applicable here, the fifth Girsh factor does not warrant discussion.17 However, when considering the fourth factor, which relates to the risk of establishing liability, the Court finds that a settlement at this juncture is more prudent than further litigation.

17

The seventh Girsh factor looks to the Defendants’

ability to withstand a greater judgment. This factor is

also inapplicable because no compensatory damages

are sought.

The main obstacle facing the class is the PLRA, namely, 42 U.S.C. § 1997e(a). This statute provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available
10

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
are exhausted.” 42 U.S.C. § 1997e(a). In Salaam v. Consovoy, No. 99–5692(JEI) (D.N.J. Apr. 14, 2000), Judge Irenas addressed the applicability of that statute to an individual inmate’s section 1983 claim that he did not receive a timely parole hearing. In rejecting the plaintiff’s claim, Judge Irenas stated:
The Third Circuit has not explicitly determined whether § 1983 claims that challenge a plaintiff’s right to receive a timely parole hearing under state law are considered actions “with respect to prison conditions” under § 1997e(a). However, in its recent ruling that § 1997e(a) governs excessive force actions, the Third Circuit looked to Congress’ definition of the term “civil action with respect to prison conditions” that is set forth in 18 U.S.C. § 3626(g)(2), another section of the PLRA. Booth v. Churner, 206 F.3d 289, 293–94 (3d Cir.2000); see also Freeman v. Francis, 196 F.3d 641, 644 (6th Cir.1999) (holding that “scope of § 1997e(a)’s exhaustion requirement is determined by the definition of a ‘civil action with respect to prison conditions’ as set forth in § 3626(g)(2)”). “The PLRA not only amended § 1997e(a) to include various limitations on actions such as the mandatory exhaustion requirement [ ], it also created 19 U.S.C. § 3626, which in many subsections, prevents federal courts from ordering broad prospective relief in ‘any civil action with respect to prison conditions.’ ” Id.
. . . . .
In the instant case, plaintiff claims that defendants violated his due process rights when they failed to provide him with an initial parole hearing pursuant to state law.... However, based on the Booth Court’s broad reading of § 3626(g)(2) which resulted in excessive force claims being covered by § 1997e(a), this Court holds that due process/failure to provide hearing claims like the one at issue here, would also be governed by § 1997e(a).
[Salaam, slip op. at 7, 9.]
In Severino v. Disabato, No. 98–5122 (D.N.J. Nov. 22, 2000), Judge Rodriguez also relied on section 1997e(a) to dismiss another inmate’s claim that his right to due process had been violated by the failure to provide him a timely parole hearing. Judge Rodriguez concluded: “Therefore, because plaintiff failed to take further actions, this Court finds that plaintiff has failed to exhaust the administrative remedies made available to him by the State of New Jersey. For this reason alone, plaintiff is barred under § 1997e(a) of the PLRA from maintaining his § 1983 action in this Court.” Severino, slip op. at 7.
Although this Court need not take a position on the applicability of section 1997e(a), the fact that two other judges in this district have relied on that statute to dismiss

a complaint, which alleged the same constitutional violation as the present complaint, is problematic for the class. Aside from having to overcome the potential obstacle of the PLRA, the class faces the prospect of a legal determination *633 that the due process to which inmates are entitled with respect to parole hearings does not require the Parole Board to provide a parole hearing on or before the parole eligibility date. Recently, in Burgos v. New Jersey State Parole Bd., No. 99–3034(AET) (D.N.J. Aug. 7, 2000), Chief Judge Thompson rejected an inmate’s claim that his right to procedural due process had been violated by the Parole Board’s failure to provide him with a timely parole hearing. Because the Act and the applicable regulations permit the Parole Board to waive the deadlines, Judge Thompson concluded “that the due process plaintiff is entitled to regarding parole decisions does not include receiving a parole hearing in exact accordance with the specific time period required by N.J. Stat. Ann. § 30:4–123.55(c).” Burgos, slip op. at 13.
Based on these recent federal cases, class counsel recognizes that there is a significant risk that this class action would be barred by the PLRA because the Named Plaintiffs and class members may not have sufficiently exhausted administrative remedies. (Pls.’ Mem. in Supp. of the Settlement Agreement at 24). Pursuant to Burgos, there is also the risk that the due process clause of the fourteenth amendment does not require strict compliance with deadlines set forth in the Act. Class counsel also understands this risk. (Id. at 29). The Court concurs with class counsel’s prudent assessment of the risks inherent in further litigation, and finds that these risks create a significant incentive to settle rather than subject the class to the possibility of an adverse legal determination that would preclude any relief.
5. Class Decertification Is Not Likely The sixth Girsh factor requires the Court to consider whether there is a risk that the class will not be maintainable through the course of the trial, and, thus, there is a risk of class decertification. See In re Prudential Ins. Co., 148 F.3d at 321. In other words, the issue is whether the case will present “intractable management problems.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Class counsel has not argued that there are such problems, and the Court is not aware of any. (Pls.’ Mem. in Supp. of the Settlement Agreement at 30). Although the possibility of decertification would remain if litigation continued, it is not particularly likely. Therefore, this Girsh factor does not play a significant role in the Court’s determination whether to approve the Settlement Agreement.
11

Hawker v. Consovoy, 198 F.R.D. 619 (2001)
6. The Settlement Agreement Falls Within the Range of Reasonable Outcomes “The last two Girsh factors ask whether the settlement is reasonable in light of the best possible recovery and the risks the parties would face if the case went to trial.” In re Prudential Ins. Co., 148 F.3d at 322. After considering both factors, the Court finds that the Settlement Agreement is fair and reasonable.
The Settlement Agreement establishes a comprehensive scheme to remedy the parole hearing backlog, and to ensure that the backlog does not recur. Class counsel has expressed the opinion that “the proposed settlement is an excellent result under the circumstances.” (Pls.’ Mem. in Supp. of the Settlement Agreement at 31). See Lake v. First Nationwide Bank, 900 F.Supp. 726, 732 (E.D.Pa.1995) (recognizing that the court should attribute significant weight to the opinion of class counsel that a settlement is fair and reasonable). In addition, class counsel has submitted a class expert report dated January 8, 2001 from Mr. Stephen M. Latimer, an attorney and former law professor who has been litigating prison condition and parole cases since 1972. (Class Expert Report at 1). Mr. Latimer opines “that the agreement adequately protects the rights of the prisoners and will make great strides to ensure that in the future parole release hearings are timely.” (Ibid.).
The only demands set forth in the complaint that are not granted by the Settlement Agreement are a finding that the Parole Board committed a constitutional violation, and a classwide award of nominal damages. However, the absence of both demands has been adequately explained. Again, the Parole Board refused to admit liability because it was not obligated to do so, and class counsel explained why an award of nominal *634 damages was not negotiated.18 The Court does not find that these omissions are unfair or unreasonable. Although it is possible that the class could achieve more favorable relief through further litigation, a better outcome is improbable, mostly due to

the risks associated with establishing liability and the fact that additional delays in the resolution of this action tend to reduce the value of any future equitable relief. Therefore, having carefully considered the terms of the Settlement Agreement in light of the Girsh factors, the Court concludes that the Settlement Agreement falls squarely within the range of fair and reasonable outcomes.

18

See supra note 16.

B. PUBLIC POLICY CONSIDERATIONS In addition to consideration of the Girsh factors, the Court’s approval of the Settlement Agreement is supported by public policy considerations. Aside from ensuring the protection of class members’ legal rights, an important consequence of approval of the settlement is that a state agency will be brought into full compliance with the law. The terms of the Settlement Agreement will introduce certainty into the administration of the parole system, replacing years of confusion and mismanagement. In a properly functioning parole system, the decision on each case will be supported by a full administrative record. Such a record will further recognize the legitimate interests of the law enforcement community and the victims of crime in any particular case.
VI. CONCLUSION For the reasons set forth above and on the record following the fairness hearing, the Court grants class certification under Rule 23(b)(2), and approves the Settlement Agreement as a fair and reasonable outcome to this class action.
	
  

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12BJ, CLOSED, RULE16
U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:00-cv-02106-JAP

HAWKER, et al v. CONSOVOY, et al Assigned to: Judge Joel A. Pisano Demand: $0 Cause: 42:1983 Prisoner Civil Rights Movant RICHARD SMITH
Movant WENDELL TOLBERT
Movant RASHID JIHAD
Movant MARVIN KELLY
Plaintiff IAN HAWKER

Date Filed: 05/02/2000 Date Terminated: 01/23/2001 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by RICHARD SMITH #314344 NORTHERN STATE PRISON 168 FRONTAGE ROAD NEWARK, NJ 07114 PRO SE
represented by WENDELL TOLBERT #290010 NOTHERN STATE PRISON 168 FRONTAGE ROAD NEWARK, NJ 07114 PRO SE
represented by RASHID JIHAD #279462 TALBOT HALL 100-140 LINCOLN HIGHWAY KEARNY, NJ 07032 PRO SE
represented by MARVIN KELLY NORTHERN STATE PRISON #301137, SBI #822473A P.O. BOX 2300 NEWARK, NJ 07114 PRO SE
represented by JOSEPH A. OSEFCHEN THE LAW FIRM OF PHILIP STEPHEN FUOCO

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Plaintiff NELSON MILES
Plaintiff JERMAINE LAWRENCE on behalf of themselves and all others similarly situated
V. Defendant ANDREW CONSOVOY
Defendant WILLIAM T. MCCARGO
Defendant LORAINE KULICK
Defendant PETER W. LOOS

24 WILKINS PLACE HADDONFIELD, NJ 08033 (856) 354-1100 Email: josefchen@msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH A. OSEFCHEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH A. OSEFCHEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI OFFICE OF NJ ATTORNEY GENERAL RICHARD J. HUGHES JUSTICE COMPLEX CN 112 TRENTON, NJ 08625 (609) 633-3895 Email: dianne.moratti@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY

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Defendant DOMINIC PORROVECCHIO
Defendant ROLANDO GOMEZ RIVERA
Defendant RACHEL TORRES-CHOWANIEC
Defendant RUBY J. WASHINGTON
Movant ARTHUR WAKEFIELD, JR. Movant DEVIN NEWBY
Movant TROY LAWSON
Movant TMAIN WILLIAMS

ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIANNE M. MORATTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DEVIN NEWBY #269934 NORTHERN STATE PRISON 168 FRONTAGE ROAD NEWARK, NJ 07114 PRO SE
represented by TROY LAWSON #233605 NORTHERN STATE PRISON 168 FRONTAGE ROAD NEWARK, NJ 07114 PRO SE

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Date Filed 05/02/2000 05/03/2000
05/03/2000 06/28/2000
07/05/2000 07/20/2000 07/27/2000 08/30/2000 09/13/2000 09/14/2000 09/14/2000 09/18/2000 10/16/2000 10/16/2000

#

Docket Text

1 COMPLAINT filed FILING FEE $ 150.00 RECEIPT # 248905 (js) (Entered: 05/03/2000)

SUMMONS(ES) issued for ANDREW CONSOVOY, WILLIAM T. MCCARGO, LORAINE KULICK, PETER W. LOOS, DOMINIC PORROVECCHIO, ROLANDO GOMEZ RIVERA, RACHEL TORRESCHOWANIEC, RUBY J. WASHINGTON ( 20 Days) (Mailed to Counsel) (js) (Entered: 05/03/2000)

2 NOTICE of Allocation and Assignment filed. Magistrate Judge ROBERT B. KUGLER (js) (Entered: 05/03/2000)

3 ORDER, extending time to answer , reset answer due for 8/2/00 for RUBY J. WASHINGTON, for RACHEL TORRES-CHOWANIEC, for ROLANDO GOMEZ RIVERA, for DOMINIC PORROVECCHIO, for PETER W. LOOS, for LORAINE KULICK, for WILLIAM T. MCCARGO, for ANDREW CONSOVOY ( signed by Mag. Judge Robert B. Kugler ) nm (femp) (Entered: 07/05/2000)

4 ORDER, set scheduling conference for 10:00 8/8/00 ( signed by Mag. Judge Robert B. Kugler ) nm (femp) (Entered: 07/05/2000)

5 Minute entry: Proceedings recorded by Ct-Reporter: Carl Nami; Minutes of: 7/20/00; The following actions were taken - Status conference held. By Judge Joel A. Pisano (femp) (Entered: 07/24/2000)

6 ORDER extending time to answer to 9/5/00 ( signed by Judge Joel A. Pisano ) nm (femp) (Entered: 07/27/2000)

7 Minute entry: Proceedings recorded by Ct-Reporter: Carl Nami; Minutes of: 8/30/00; The following actions were taken - Status Conference held on the record. By Judge Joel A. Pisano (femp) (Entered: 08/30/2000)

8 Minute entry: Proceedings recorded by Ct-Reporter: Carl Nami; Minutes of: 9/13/00; The following actions were taken - Status Conference held on the record. By Judge Joel A. Pisano (femp) (Entered: 09/13/2000)

9 ORDER that the Clerk of U.S. District Court shall maintain a document depository, etc. ( signed by Judge Joel A. Pisano ) nm (femp) (Entered: 09/14/2000)

10 SEALED DOCUMENT (femp) (Entered: 09/14/2000)

11 Notice of MOTION to certify class action by IAN HAWKER, NELSON MILES, JERMAINE LAWRENCE, Motion set for 10/20/00 on [11-1] motion . (Brief/PO Subm) ORAL ARGUMENT (femp) (Entered: 09/19/2000)

12 Notice of MOTION to Amend Named Similarly Situated Class Members by RICHARD SMITH, Motion set for 11/17/00 on [12-1] motion . (femp) (Entered: 10/18/2000)

13 AFFIDAVIT of Richard Smith on Re: [12-1] motion to Amend Named Similarly Situated Class Members (femp) (Entered: 10/18/2000)

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10/16/2000 10/16/2000 10/26/2000 10/30/2000 10/30/2000 10/30/2000 10/30/2000 10/30/2000 11/03/2000 11/03/2000 11/08/2000
11/08/2000 11/08/2000
11/08/2000 11/08/2000

14 Notice of MOTION to Amend Named Similarly Situated Class Members by WENDELL TOLBERT, Motion set for 11/17/00 on [14-1] motion . (femp) (Entered: 10/18/2000)
15 AFFIDAVIT of Wendell Tolbert on Re: [14-1] motion to Amend Named Similarly Situated Class Members (femp) (Entered: 10/18/2000)
16 Notice of MOTION to intervene as party plaintiff by ARTHUR WAKEFIELD JR. [16-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 12/1/00 on [16-1] motion . (femp) (Entered: 10/30/2000)
17 Notice of MOTION to intervene by DEVIN NEWBY [17-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 12/1/00 on [17-1] motion . (femp) Modified on 10/30/2000 (Entered: 10/30/2000)
18 AFFIDAVIT of Devin Newby on Re: [17-1] motion to intervene (femp) Modified on 10/30/2000 (Entered: 10/30/2000)
19 Notice of MOTION for preliminary injunction by IAN HAWKER, NELSON MILES, JERMAINE LAWRENCE, Motion set for 12/1/00 on [19-1] motion . (ORAL ARGUMENT) (femp) (Entered: 10/31/2000)
20 AFFIDAVIT of Joseph A. Osefchen on Re: [19-1] motion for preliminary injunction (femp) (Entered: 10/31/2000)
21 AFFIDAVIT of Nelson Miles on Re: [19-1] motion for preliminary injunction (femp) (Entered: 10/31/2000)
22 Notice of MOTION to intervene by TROY LAWSON [22-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 12/1/00 on [22-1] motion . (femp) (Entered: 11/03/2000)
23 AFFIDAVIT of Troy Lawson on Re: [22-1] motion to intervene (femp) (Entered: 11/03/2000)
24 Notice of CROSS MOTION for summary judgment by ANDREW CONSOVOY, WILLIAM T. MCCARGO, LORAINE KULICK, PETER W. LOOS, DOMINIC PORROVECCHIO, ROLANDO GOMEZ RIVERA, RACHEL TORRES-CHOWANIEC, RUBY J. WASHINGTON, Motion set for 12/1/00 on [24-1] motion . (PO Subm) (femp) Modified on 11/09/2000 (Entered: 11/09/2000)
25 AFFIDAVIT of Kenneth Connolly on Re: [24-1] cross motion for summary judgment (femp) (Entered: 11/09/2000)
26 Notice of MOTION for leave to file over-length brief by ANDREW CONSOVOY, WILLIAM T. MCCARGO, LORAINE KULICK, PETER W. LOOS, DOMINIC PORROVECCHIO, ROLANDO GOMEZ RIVERA, RACHEL TORRES-CHOWANIEC, RUBY J. WASHINGTON, Motion set for 12/1/00 on [26-1] motion . (PO Subm) (femp) (Entered: 11/09/2000)
27 AFFIDAVIT of Diane Moratti on Re: [26-1] motion for leave to file over-length brief (femp) (Entered: 11/09/2000)
28 Statement That No Brief is Necessary (femp) (Entered: 11/09/2000)

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11/09/2000 11/09/2000 11/09/2000 11/13/2000 11/14/2000 11/14/2000 11/15/2000 11/15/2000 11/16/2000
11/17/2000
11/20/2000
11/21/2000 11/27/2000 11/28/2000

29 Notice of MOTION to amend named similarly situated class members [29-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 12/15/00 on [29-1] motion . (femp) (Entered: 11/13/2000)
30 AFFIDAVIT of Rashid Jihad on Re: [29-1] motion to amend named similarly situated class members (femp) (Entered: 11/13/2000)
31 Minute entry: Proceedings recorded by Ct-Reporter: Lisa Marcus; Minutes of: 11/9/00; The following actions were taken - Status Conference held on the record. By Mag. Judge Joel B. Rosen (femp) (Entered: 11/13/2000)
32 ORDER grants preliminary apporval of the proposed Class Settlement Agreement and setting a hearing date for fnal apporval on JANUARY 16, 2001. n.m. ( signed by Judge Joel A. Pisano ) (mgr) (Entered: 11/15/2000)
33 ORDER grantng Class Certification and appointng Philip Fuoco as attorney for class. n.m. ( signed by Judge Joel A. Pisano ) (mgr) (Entered: 11/15/2000)
34 ORDER approving "NOTICE of PROPOSED CLASS SETTLEMENT" and approving method of publication, etc. n.m. ( signed by Judge Joel A. Pisano ) (mgr) (Entered: 11/15/2000)
35 Notice of MOTION for leave to amend named similary situated class members by MARVIN KELLY, [35-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 12/15/00 on [35-1] motion . (ar1) (Entered: 11/16/2000)
36 AFFIDAVIT of MARVIN KELLY; Re: [35-1] motion for leave to amend named similary situated class members. (ar1) (Entered: 11/16/2000)
37 ORDER dismissing [26-1] motion for leave to file over-length brief dismissing [24-1] motion for summary judgment dismissing [14-1] motion to Amend Named Similarly Situated Class Members dismissing [12-1] motion to Amend Named Similarly Situated Class Members ( signed by Judge Joel A. Pisano ) nm (femp) (Entered: 11/16/2000)
38 Notice of MOTION opposing defendants' motion opposing plaintiff's motion to be amended as a named class member by TROY LAWSON [38-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 12/15/00 on [38-1] motion . (femp) (Entered: 11/20/2000)
Deadline updated; terminating [19-1] motion for preliminary injunction terminating [19-2] hearing Motion set for 12/1/00 on [19-1] motion terminating [11-1] motion to certify class action terminating [11-2] hearing Motion set for 10/20/00 on [11-1] motion (femp) (Entered: 11/20/2000)
39 LETTER by defendants opposing Mr. Jihad's motion to "amend named similarly situated class members" (femp) (Entered: 11/21/2000)
40 Notice of MOTION to intervene by ARTHUR WAKEFIELD JR. [40-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 1/5/01 on [40-1] motion . (femp) (Entered: 11/28/2000)
41 CERTIFICATION of Arthur Wakefield Re: [40-1] motion to intervene (femp) (Entered: 11/28/2000)

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12/07/2000 12/11/2000 12/11/2000 12/11/2000 12/11/2000 12/13/2000 12/18/2000 12/18/2000 12/18/2000 12/18/2000 12/18/2000
12/18/2000 12/20/2000

42 Notice of MOTION to be excluded from fraudulent contract, etc. by ARTHUR WAKEFIELD JR., Motion set for 1/5/01 on [42-1] motion . (femp) (Entered: 12/08/2000)
43 Notice of MOTION to intervene by TMAIN WILLIAMS [43-1] motion referred to Mag. Judge Robert B. Kugler, Motion set for 1/5/01 on [43-1] motion . (femp) (Entered: 12/11/2000)
44 AFFIDAVIT of Tmain Williams on Re: [43-1] motion to intervene by TMAIN WILLIAMS (femp) (Entered: 12/11/2000)
45 CERTIFICATE OF SERVICE of letter by Raymond Dozier to Philip Fuoco, Esq. dated 12/8/00 (femp) (Entered: 12/11/2000)
46 Objections to Fraudulent proposed Alleged Settlement Agreement by plaintiff Arthur Wakefield (femp) Modified on 12/12/2000 (Entered: 12/12/2000)
46 LETTER By named plaintiffs IAN HAWKER, NELSON MILES, and JERMAINE LAWRENCE re: objection to proposed settlement, etc. (mgr) (Entered: 01/23/2001)
47 Minute entry: Minutes of: 12/18/00; The following actions were taken, mooting [35-1] motion for leave to amend named similary situated class members By Mag. Judge Robert B. Kugler (femp) (Entered: 12/20/2000)
48 Minute entry: Minutes of: 12/18/00; The following actions were taken, mooting [16-1] motion to intervene as party plaintiff by ARTHUR WAKEFIELD JR. By Mag. Judge Robert B. Kugler (femp) (Entered: 12/20/2000)
49 Minute entry: Minutes of: 12/18/00; The following actions were taken, mooting [22-1] motion to intervene by TROY LAWSON By Mag. Judge Robert B. Kugler (femp) (Entered: 12/20/2000)
50 Minute entry: Minutes of: 12/18/00; The following actions were taken, mooting [17-1] motion to intervene by DEVIN NEWBY By Mag. Judge Robert B. Kugler (femp) (Entered: 12/20/2000)
51 ORDER mooting [43-1] motion to intervene by TMAIN WILLIAMS mooting [40-1] motion to intervene by ARTHUR WAKEFIELD JR. mooting [38-1] motion opposing defendants' motion opposing plaintiff's motion to be amended as a named class member mooting [35-1] motion for leave to amend named similary situated class members, mooting [29-1] motion to amend named similarly situated class members mooting [22-1] motion to intervene by TROY LAWSON, mooting [17-1] motion to intervene by DEVIN NEWBY, mooting [16-1] motion to intervene as party plaintiff by ARTHUR WAKEFIELD JR. ( signed by Mag. Judge Robert B. Kugler ) nm (femp) (Entered: 12/20/2000)
52 Minute entry: Minutes of: 12/18/00; The following actions were taken, mooting [38-1] motion opposing defendants' motion opposing plaintiff's motion to be amended as a named class member By Mag. Judge Joel B. Rosen (femp) (Entered: 12/20/2000)
Deadline updated; terminating [43-2] hearing Motion set for 1/5/01 on [43-1] motion terminating [40-2] hearing Motion set for 1/5/01 on [40-1] motion

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12/29/2000 01/02/2001 01/02/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/10/2001 01/10/2001 01/10/2001 01/16/2001
01/16/2001 01/16/2001

terminating [38-2] hearing Motion set for 12/15/00 on [38-1] motion terminating [35-2] hearing Motion set for 12/15/00 on [35-1] motion terminating [29-2] hearing Motion set for 12/15/00 on [29-1] motion terminating [22-2] hearing Motion set for 12/1/00 on [22-1] motion terminating [17-2] hearing Motion set for 12/1/00 on [17-1] motion terminating [16-2] hearing Motion set for 12/1/00 on [16-1] motion (femp) (Entered: 12/20/2000)
53 NOTICE of APPEAL by ARTHUR WAKEFIELD JR. of Magistrate decision to District Court RE: [51-1] order Hearing on magistrate appeal set for 2/2/01 (femp) (Entered: 01/03/2001)
54 Notice of MOTION "To convene (3) Judge court & disqualify inept attorney from impairing my constitutional rights, etc." by ARTHUR WAKEFIELD JR., Motion set for 2/2/01 on [54-1] motion . (femp) (Entered: 01/03/2001)
55 Notice of MOTION for Writ of Mandamus by ARTHUR WAKEFIELD JR., Motion set for 2/2/01 on [55-1] motion . (femp) (Entered: 01/03/2001)
56 ORDER AND WRIT OF HABEAS CORPUS as to Jamaine Lawrence ( signed by Judge Joel A. Pisano ) (femp) (Entered: 01/09/2001)
57 ORDER AND WRIT OF HABEAS CORPUS as to Ian Hawker ( signed by Judge Joel A. Pisano ) (femp) (Entered: 01/09/2001)
58 ORDER AND WRIT OF HABEAS CORPUS as to Nelson Miles ( signed by Judge Joel A. Pisano ) (femp) (Entered: 01/09/2001)
WRITS of Habeas Corpus issued (femp) (Entered: 01/09/2001)
59 Notice of MOTION for mandatory injunction and restraining order by ARTHUR WAKEFIELD JR., Motion set for 2/16/01 on [59-1] motion . (femp) (Entered: 01/10/2001)
60 AFFIDAVIT of PHILIP STEPHEN FUOCO Re: Attorneys Fees and Costs (femp) (Entered: 01/10/2001)
61 AFFIDAVIT of JOSEPH A. OSEFCHEN Re: Attorneys Fees and Costs (femp) (Entered: 01/10/2001)
62 CERTIFICATION of AUTHENTICITY JOSEPH A. OSEFCHEN (femp) (Entered: 01/10/2001)
63 Minute entry: Proceedings recorded by Ct-Reporter: Carl Nami, Jr.; Minutes of: 1/16/01; The following actions were taken, Fairness Hearing held. Ordered Class Certified. Hearing to approve settlement. Ordered settlement approved. Settlement to be entered. Hearing on application by plaintiff for attorneys fee and costs, Ordered application granted. Order to be entered. By Judge Joel A. Pisano (er) (Entered: 01/18/2001)
73 Notice of MOTION in opposition and/or objection to proposed settlement , by class member Tony Barnes Motion set for 2/16/01 on [73-1] motion . (femp) (Entered: 01/24/2001)
74 CERTIFICATION of Tony Barnes (femp) (Entered: 01/24/2001)

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01/18/2001 01/22/2001 01/22/2001 01/22/2001 01/22/2001 01/22/2001 01/22/2001 01/22/2001 01/22/2001 01/23/2001 01/26/2001 01/29/2001
01/29/2001
01/29/2001
01/30/2001 02/09/2001
03/01/2001

64 Exhibits (64 pgs) re: Settlement. (mgr) (Entered: 01/22/2001)
65 OPINION ( signed by Judge Joel A. Pisano ) (mgr) (Entered: 01/23/2001)
66 ORDER granting class certification and APPROVING Settlement Agreement. n.m. ( signed by Judge Joel A. Pisano ) (mgr) (Entered: 01/23/2001)
67 ORDER granting attorneys' fees and costs. n.m. ( signed by Judge Joel A. Pisano ) (mgr) (Entered: 01/23/2001)
68 SETTLEMENT AGREEMENT with Exhibit A, report date of Nov. 14, 2000, annexed. (mgr) (Entered: 01/23/2001)
69 Defendants' Appendix in support of the Settlement Agreement. (mgr) (Entered: 01/23/2001)
70 AFFIDAVIT of Mario Paparozzi on Re: Settlement. (mgr) (Entered: 01/23/2001)
71 AFFIDAVIT of Kenneth Connolly on Re: Settlement. (mgr) (Entered: 01/23/2001)
72 Class Expert Report in support of proposed settlement. (mgr) (Entered: 01/23/2001)
Case closed (mgr) (Entered: 01/23/2001)
75 Certain submission by Arthur Wakefield, Jr. #57916. (mgr) (Entered: 02/06/2001)
76 ORDER dismissing with prejudice [73-1] motion in opposition and/or objection to proposed settlement terminating [73-2] hearing Motion set for 2/16/01 on [731] motion ( signed by Judge Joel A. Pisano ) (er) Modified on 02/06/2001 (Entered: 02/01/2001)
77 ORDER denying [59-1] motion for mandatory injunction and restraining order denying [55-1] motion for Writ of Mandamus denying [54-1] motion "To convene (3) Judge court & disqualify inept attorney from impairing my constitutional rights, etc." n.m. ( signed by Judge Joel A. Pisano ) (er) Modified on 02/06/2001 (Entered: 02/01/2001)
Deadline updated; terminating [59-2] hearing Motion set for 2/16/01 on [59-1] motion terminating [55-2] hearing Motion set for 2/2/01 on [55-1] motion terminating [54-2] hearing Motion set for 2/2/01 on [54-1] motion (er) (Entered: 02/01/2001)
78 APPLICATION by Wakefield re: to disqualify judge. (mgr) (Entered: 02/06/2001)
79 Notice of MOTION for reconsideration of [77-1] order by movant ARTHUR WAKEFIELD JR., Motion set for 3/16/01 on [79-1] motion . (mgr) (Entered: 02/27/2001)
80 ORDER denying [79-1] motion for reconsideration from [77-1] order; terminating [79-2] hearing Motion set for 3/16/01 on [79-1] motion ( signed by

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03/19/2001
03/19/2001
03/19/2001 04/24/2001 04/24/2001 04/24/2001

Judge Joel A. Pisano ) (mgr) (Entered: 03/01/2001)
81 Notice of MOTION for reconsideration of [80-1] order denying motion for reconsideration by movant ARTHUR WAKEFIELD JR., Motion set for 4/20/01 on [81-1] motion . (ar1) (Entered: 03/19/2001)
82 ORDER denying [81-1] motion for reconsideration of [80-1] order denying motion for reconsideration. n.m. ( signed by Judge Joel A. Pisano ) (ar1) (Entered: 03/19/2001)
Deadline updated; terminating [81-2] hearing Motion set for 4/20/01 on [81-1] motion. (ar1) (Entered: 03/19/2001)
83 Returned Order of 1/29/01 by the U.S. Postal Service Not at this address and no forwarding address. (er) (Entered: 04/24/2001)
84 Returned Order of 1/29/01 by the U.S. Postal Service no longer at that address. (er) (Entered: 04/24/2001)
85 Returned Order of 1/29/01 by U.S. Postal Service stating inactive or Out. (er) (Entered: 04/24/2001)

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 ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for Defendants
By: Dianne M. Moratti James D. Harris Deputy Attorneys General (609) 633-3985

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICINAGE OF TRENTON

IAN HAWKER, NELSON MILES )

and JERMAINE LAWRENCE,

on behalf of themselves )

and all others similarly

situated,

)

Plaintiffs, )

v.

)

ANDREW CONSOVOY, WILLIAM ) T. McCARGO, LORRAINE KULICK, PETER W. LOOS, ) DOMINIC PORROVECCHIO, ROLANDO GOMEZ RIVERA, ) RACHEL TORRES-CHOWANIEC and RUBY J. WASHINGTON, )

Defendants. )

HONORABLE JOEL A. PISANO, U.S.D.J. Civil Action No. 00-2106(JAP) SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT dated November 10, 2000 entered into by and among Ian Hawker, Nelson Miles and Jermaine Lawrence, on behalf of themselves and all others similarly situated, (the
Hawker v. Consovoy

1

C-NJ-0006-0002

"Plaintiffs") and Andrew Consovoy, William T. McCargo, Lorraine
Kulick, Peter W. Loos, Dominic Porrovecchio, Rolando Gomez Rivera,
Rachel Torres-Chowaniec and Ruby J. Washington (the "Defendants"),
WITNESSETH THAT;
WHEREAS, Plaintiffs filed this class action suit on May 2,
2000 against the Defendants seeking injunctive relief, nominal
damages and the recovery of attorneys fees and costs (Exhibit H ) ;
and
WHEREAS, for the purposes of settlement only, the parties
stipulate that the factual requirements of Fed.R.Civ.P. 23(a) and
(b)(2) are met with respect to the following class:
All State inmates as of the date of the filing of this suit confined within the facilities of the New Jersey Department of Corrections or county jails who have not received a parole panel hearing referenced in N.J.S.A. 30:4123.55c or have not been certified for release pursuant to N.J.S.A. 30:4-123.55(b) by their parole eligibility date as set by the Parole Board and all inmates in the future who are so confined and have not received the above cited hearing or release certification.
WHEREAS, for the purposes of settlement only, Defendants join
in Plaintiffs' motion to certify the proposed class; and
WHEREAS, the term "parole eligibility date" shall refer to
that date on which the Parole Board determines that the inmate is
eligible for parole; and
WHEREAS, the term "parole panel hearing" shall mean that
hearing referenced in N.J.S.A. 30:4-123.55(c); and

WHEREAS, the term "past eligible inmates" shall be defined as those inmates who have not received a parole board panel hearing by their parole eligibility date; and
WHEREAS, the term "structural past eligible inmates" shall refer to that subset of "past eligible inmates" who become past eligible or will become past eligible in a manner beyond the control of the Parole Board which did not afford the full 12 0 days provided by N.J.S.A. 30:4-123.54a to prepare for the initial and panel parole hearings. The Plaintiffs and Defendants recognize that public safety requires that the New Jersey Parole Board have a reasonable amount of time to investigate the parole plan and suitability of the inmate prior conducting an initial or panel hearing. Examples of structural past eligible inmates are inmates who are:
a. Past eligible or within less than 120 days of eligibility the day they are sentenced or resentenced for a crime because of the jail credits they received for the days they spent in county jail prior to conviction;
b. Resentenced by the Court to terms shorter than the original terms;
c. Released from the service of a custodial term to probation and then returned to custody as a probation violator and as a result of additional credits awarded for time served, are past

eligible or within less than 120 days of eligibility at the time they are returned to custody;
d. Restored commutation credit, thereby reducing the inmate's sentence and concomitantly reducing his parole eligibility date so he becomes past eligible or within less than 120 days of eligibility at the time the credits are restored;
e. Resentenced from two terms originally deemed consecutive and subsequently deemed concurrent resulting in the inmate being past eligible or within less than 120 days of eligibility at the time of the resentence;
f. Resentenced wherein a longer sentence is vacated and a shorter sentence remains resulting in the inmate being past eligible or within less than 120 days of eligibility at the time of the resentence;
g. Timely scheduled for a parole hearing, refused to participate and then subsequently reconsidered at a time when they are now past eligible for parole;
h. Refuses to cooperate with timely hearing process (for example, refuses to undergo psychological testing permitted by the Parole Act or regulations pursuant to that Act) and subsequently cooperates, but at a time when they are now past eligible for parole;
i. Denied parole and given a future eligibility term and subsequently appeals the Parole Board's decision in that regard;

and the decision of the Parole Board is reversed and remanded in a manner in which the inmate is rendered past eligible or within less than 120 days of eligibility; and
j. Denied parole and given a future eligibility term which does not result in the future parole eligibility date being more than 120 days from the date of decision to deny parole.
WHEREAS, this Settlement Agreement shall resolve all claims for injunctive and declaratory relief only arising out of late parole hearings; and
WHEREAS, N.J.S.A. 30:4-123.54 provides that a preparole report will be filed with the appropriate board panel at 120 days prior to the parole eligibility date of each adult inmate; N.J.S.A. 30:4123.55(a) provides that a hearing officer shall review the preparole report, and if it is determined that there is no basis in the report of the inmate's statement for denial of parole and that there is no additional relevant information to be developed or produced at a hearing, he shall, at least 60 days prior to the inmate's parole eligibility date, recommend in writing to the assigned member of the board panel that parole release be granted; N.J.S.A. 30:4-123.55 (c) provides that if a hearing officer or the assigned member determines that there is a basis for denial of parole, or that a hearing is otherwise needed, a hearing will be conducted by the appropriate board panel at least 3 0 days prior to the parole eligibility date; N.J.S.A. 30:4-l23.55(d) provides that

at the conclusion of the Parole consideration hearing, the board panel shall either (1) certify parole release of the inmate pursuant to N.J.S.A. 30:4-123.59, or deny parole and file with the board within 3 0 days of the hearing a statement of reasons for the denial; and N.J.S.A. 30:4-123.53 provides that an adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the preparole report or developed or produced at a hearing indicates that parole should be denied; and
WHEREAS, the New Jersey Parole Board recognizes its statutory obligation to meet the time requirements of the Parole Act and shall make every reasonable effort to meet those statutory goals in all cases during the pendency of this agreement; and
WHEREAS, Defendants shall conform their conduct to the time requirements of the Parole Act no later than two years from the date the Court approves this agreement; and
WHEREAS, Plaintiffs and Defendants recognize that the Parole Board will require a reasonable time in excess of these statutory time frames to provide a hearing to all inmates listed on Exhibit A as unresolved past eligibles; and
WHEREAS, Plaintiffs and Defendants recognize that in the future there will be inmates who claim that they have not been provided a hearing prior to their parole eligibility date; and
WHEREAS, Plaintiffs and Defendants recognize that there currently exists no specific administrative appeal process to

address such claims, and therefore agree that such an administrative appeals process should be established; and
WHEREAS, while Plaintiffs and Defendants recognize that a goal of the settlement is to eliminate the backlog through the increase of parole panel hearings, the parties also recognize that this goal must be sought without sacrificing the quality of such hearings or the right of every past eligible inmate to a thorough, full and fair hearing on parole eligibility; and
WHEREAS, Plaintiffs and Defendants acknowledge that the agreements set forth herein create a process that will ensure that all class members receive parole consideration in the most efficient and just manner under the circumstances; and
WHEREAS, any vacancy in the membership of the Parole Board or any legislative enactment subsequent to the signing of this agreement which substantially impairs the parties' ability to implement any provision(s) of this agreement shall be grounds to re-negotiate the affected provision(s); and
WHEREAS, Plaintiffs and Defendants acknowledge that, to the extent possible, it is in their best interests to resolve the issues raised in this action by means other than litigation and, to this end, have on this day agreed to enter into this Settlement Agreement;
NOW THEREFORE, Plaintiffs and Defendants do hereby set forth the understanding reached between them.

TABLE OF CONTENTS
I. Providing Panel Hearing for Current Past Eligible Inmates
II. Providing Panel Hearings for Future Past Eligible Inmates A. Procedure for Non-Structural Past Eligible Inmates B. Procedure for Structural Past Eligible Inmates
III. Creation of Appellate Process for Late Hearing Claims
IV. Amendment to the Parole Regulations IV. Reporting V. Implementation Costs VI. Term of the Agreement VII. Alterations VIII .Disclaimer of Liability IX. Dissolution and Severability X. Enforcement XI. Non-Retaliation XII. Time Requirements of the Parole Act XIII .Right to Thorough, Full and Fair Hearing XIV. Plaintiffs1 Attorneys Fees and Costs

PAGE
9
10
10
11
12 16 18 2 0 20 21 21 22 22 22 23 23 23

I. Providing Panel Hearing for Current Past Eligible Inmates 1. Exhibit A attached contains the names of resolved and
unresolved "past eligible inmates" known to Defendants as of the signing date of this agreement. Within 10 weeks of the date on which this Settlement Agreement is approved by the Court, Defendants shall provide all unresolved past eligible inmates listed on Exhibit A with a parole panel hearing, unless their parole status is otherwise resolved.* Defendants have made every reasonable effort to assure that Exhibit A contains all currently resolved and unresolved "past eligible inmates." If, however, other unresolved "past eligible inmates" are discovered subsequently during the pendency of this agreement, they shall be provided a parole panel hearing by the date set forth above or within 60 days of discovery, whichever is longer, unless their parole status is otherwise resolved during such time period.
2. Within 20 days after the time period set forth in Section I(1), the Chairman of the Parole Board shall provide an affidavit to class counsel certifying the dates on which each inmate listed on Exhibit A had his/her panel hearing or had his/her parole status otherwise resolved with the understanding that it cannot be distributed to any other person.
'Examples of alternate resolution of an inmate's parole status include, but are not limited to, the inmate's death, his/her release from prison after serving the maximum sentence, or his/her request to serve the maximum sentence in lieu of parole.

3. Defendants shall be deemed to have complied with the Settlement Agreement with regard to any inmate listed on Exhibit A who, within the time period set forth in Section 1(1), has either received his/her parole panel hearing, regardless of whether parole is denied, granted, granted conditionally or any other outcome, or has had his/her parole status otherwise resolved.
II. Providing Panel Hearings for Future Past Eligible Inmates A. Procedure for Non-Structural Past Eligible Inmates 1. All inmates who become eligible for parole on or after
the day the agreement is approved by the court, but prior to the two year anniversary of the court's approval of the agreement, other than those who are structural past eligible inmates as defined herein, shall receive a parole panel hearing no later than their parole eligibility date, unless their parole status is otherwise resolved by that date. All inmates who become eligible for parole on or after the two year anniversary of the court's approval of the agreement, but prior to the four year anniversary of the court's approval of the agreement, other than those who are structural past eligible inmates as defined herein, shall receive a parole panel hearing no later than 3 0 days before their parole eligibility date, unless their parole status is otherwise resolved by that date.
10

2. Defendants shall be deemed to have complied with the Settlement Agreement with regard to any inmate listed in Section II(A)(1) who received his/her parole panel hearing in conformity with the terms of that paragraph, regardless of whether parole is denied, granted, granted conditionally or any other outcome. Defendants shall also be deemed to have complied with the Settlement Agreement with regard to any inmate listed in Section II (A) (1) whose parole status has been otherwise resolved within the time periods set forth therein.
B. Procedure for Structural Past Eligible Inmates 1. Within 120 days of the Parole Board's receipt of notice
of an inmates sentence, resentence, recalculation, return to custody of the Department of Corrections, restoration of credits, reconsideration to cooperate, remand or other circumstance which brings them within this agreement's definition of structural past eligible inmate, such inmate, who became past eligible on or after the day the agreement is approved by the court, shall receive either (1) a parole panel hearing or (2) a written notice as to why the parole board hearing could not be provided, unless his/her parole status is otherwise resolved.
2. Defendants shall be deemed to have complied with the Settlement Agreement with regard to any inmate listed in Section II(B)(1) who received his/her parole panel hearing, regardless of
11

whether parole is denied, granted, granted conditionally or any other outcome. Defendants also shall be deemed to have complied with the Settlement Agreement with regard to any inmate listed in Section II(B)(1) above who has been provided with a written notice as to why the parole panel hearing cannot be provided, regardless of the reason provided. Defendants shall also be deemed to have complied with the Settlement Agreement with regard to any inmate listed in Section II(B)(1) whose parole status has been otherwise resolved within the time period set forth therein.
III. Creation of Appellate Process for Late Hearing Claims A. Process for Current Past Eligible Inmates l(a) Any inmate listed on Exhibit A who claims he or she did
not receive a parole panel hearing in the time provided in Section I (1) shall have the right to file an administrative appeal with the Board using the form attached hereto as Exhibit B. This form shall be available in the law library in every Department of Corrections institution. With regard to inmates who do not have access to the law library, the Department of Corrections shall create a process for providing in a timely manner such inmates with Exhibit B.
(b) The Board shall acknowledge in writing to the inmate receipt of the form attached hereto as Exhibit B.
(c) Defendants shall have 3 0 days from receipt of the notice of the administrative appeal to either provide the parole panel
12

hearing or give a written reason why the parole panel hearing was not provided. The written reason shall include the date a hearing will take place, or a reason why such hearing date cannot be provided at that time.
(d) A denial of this administrative appeal shall constitute a final agency decision which is than appealable to the New Jersey Superior Court, Appellate Division.
2(a) If, within 30 days of receipt of the notice, Defendants fail to either provide any past eligible inmate the parole panel hearing or give a written reason why the parole panel hearing was not provided, this shall be deemed a final agency decision by the Parole Board to deny such administrative appeal. An appeal of this denial then may be taken in the Superior Court of New Jersey, Appellate Division.
(b) Defendants agree to pay $17.50 to the American Friends Service Committee, Prisoners Resource Center, for each day after the 3 0 days appeal process Defendants fail to either provide the parole panel hearing or give a written reason why the parole panel hearing was not provided as set forth above.
B. Process for Future Non-Structural Past Eligible Inmates 1. If any inmate referred to in Section II(A)(1) alleges that he or she has not received a parole panel hearing by his/her parole eligibility date, he/she may submit an administrative appeal
13

using the form attached hereto as Exhibit C. This form shall be available in the law library in every Department of Corrections institution. With regard to inmates who do not have access to the law library, the Department of Corrections shall create a process for providing in a timely manner such inmates with Exhibit C. The Board shall acknowledge in writing to the inmate receipt of the form attached hereto as Exhibit C.
2. The Parole Board must resolve the appeal within fortyfive (45) days of receipt of the notice by providing to the inmate either a parole panel hearing or a written reason why the parole board hearing was not provided. A written reason shall include the date a hearing will take place or a reason why such hearing date cannot be provided at that time. If a written reason is provided, the stated reason will be deemed a final agency decision. An appeal of this final agency action then may be taken in the Superior Court of New Jersey, Appellate. Division.
3(a) If Defendants fail to either provide any future nonstructural past eligible inmate the parole board hearing or give a written reason why the parole board hearing was not provided within forty five (45) days of receipt of the notice, this shall be deemed a final agency decision by the Parole Board to deny such administrative appeal. An appeal of this final agency action may be taken in the Superior Court of New Jersey, Appellate Division.
14

(b) Defendants agree to pay $17.50 a day to the American Friends Service Committee, Prisoners Resource Center, for each day after the forty five (45) day appeal process Defendants fail to either provide the parole panel hearing or give a written reason why the parole panel hearing was not provided as set forth above.
C. Process for Future Structural Past Eligible Inmates 1. If a future structural past eligible inmate has not received a parole panel hearing within the time set forth Section II (B) (1), he/she may submit an administrative appeal of this failure to receive a hearing using the form attached hereto as Exhibit D. This form shall be available in the law library in every Department of Corrections institution. With regard to inmates who do not have access to the law library, the Department of Corrections shall create a process for providing in a timely manner such inmates with Exhibit D. The Board shall acknowledge in writing to the inmate receipt of the form attached hereto as Exhibit D. 2. The Parole Board must resolve the appeal within thirty (3 0) days of receipt of the notice by providing to the inmate either a parole panel hearing or a written reason why the parole board hearing was not provided. A written reason shall include the date a hearing will take place or a reason why such hearing date cannot be provided at that time. If a written reason is provided,
15

the stated reason will be deemed a final agency decision. An appeal of this final agency action then may be taken in the Superior Court of New Jersey, Appellate Division.
3(a) If Defendants fail to either provide a future structural past eligible inmate the parole board hearing or give a written reason why the parole board hearing was not provided within 3 0 days of receipt of the notice, this shall be deemed a final agency decision by the Parole Board to deny such administrative appeal. An appeal of this final agency action may be taken in the Superior Court of New Jersey, Appellate Division.
(b) Defendants agree to pay $17.50 a day to the American Friends Service Committee, Prisoners Resource Center, for each day after the thirty (30) day appeal process Defendants fail to either provide the parole panel hearing or give a written reason why the parole panel hearing was not provided as set forth above.
IV. Amendment to the Parole Regulations 1. The New Jersey Parole Board covenants and agrees that the
Board within 3 0 days of the date the Court approves this Agreement will submit to the Office of Administrative Law for initial publication in the New Jersey Resigter the following amendments to Title 10A of the New Jersey Administrative Code regarding regulations promulgated by the New Jersey State Parole Board pursuant to N.J.S.A. 30:4-123.45 et seq. :
16

A. Amend N.J.A.C. 10A:71-3.18(a)(3)(I) as follows

3. Defer decision pending the receipt of relevant information or the conducting of an evaluation pursuant to N.J.A.C. 10A:71-3.7(h) or (I).

I. No deferral shall extend more than [180 days unless otherwise authorized by the Board] 90 days past the inmate's parole eligibility date.

B. Amend N.J.A.C. 10A:71-4.2 (Appeals), adding a new subsection .

(a) - (h)

(No Change)

(i) A failure to provide a Board parole hearing by an inmate's actual parole eligibility date as set by the Parole Board shall be appealable to the [Board] Chairman.

Amend N.J.A.C. 10A:71-4.3

(a) All appeals submitted pursuant to N.J.A.C. 10A: 71-4.1 and 4.2 shall be filed in writing and within 180 days of written notice action or decision being received by the inmate and shall contain the reasons for the appeal and the criteria under which the appeal is submitted. An appeal submitted pursuant to N.J.A.C. 10A: 71-4.2(I) shall include reference to the inmate's actual parole eligibility date as established by the Board's staff.
(b)-(c) (No Change)
(d) An appeal filed by an inmate pursuant to N.J.A.C. 10A: 71-4.2(1) shall be considered by the Chairman [Board! and a written notification of the [Board's! Chairman's decision provided to the inmate within 45 days of the date of the appeal being received.

(e) In the case of an appeal filed by an inmate pursuant to N.J.A.C. 10A: 71-4.2 (I). the

17

failure of the Chairman [Boardl to provide written notification of its decision within 45 days of the date of the appeal was received shall be deemed a denial of the appeal. A denial shall constitute a final agency decision. í(d) 1 (f) (No change in text.)
2. It is the intent of the parties that following the publication and comment period, the Parole Board shall give due consideration to the comments obtained and, if appropriate, shall formally adopt the proposed regulations and submit same to the Office of Administrative Law for final publication in the New Jersey Register. Substantial modification of these terms in finally adopted regulations shall be grounds to reopen this matter.
IV. Reporting 1. Progress Reports to Class Counsel: Within 30 days after
this agreement is approved by the court, Defendants shall provide to class counsel a list of all those inmates on Exhibit A who have received a parole panel hearing or whose parole status has been otherwise resolved. In addition, defendants shall submit a further listing of all those inmates on Exhibit A who have received a parole panel hearing or whose parole status has been otherwise resolved every month thereafter until such time as defendants certify compliance with this Settlement Agreement with regard to all inmates on Exhibit A.
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2. A copy of the affidavit described in Section I(2) shall be shall be given to the law librarian in each Department of Corrections facility. Inmates seeking information as to their own parole eligibility date may obtain this information from the law librarian.
3. On a monthly basis during the pendency of this Agreement, a list of all future non-structural past eligible inmates who became eligible for parole at least one day after the date this agreement was approved by the court, along with their parole eligibility dates, shall be given to the law librarian in each Department of Corrections facility. Inmates seeking information as to their own parole eligibility date may obtain this information from the law librarian. A copy of this list shall also provided to class counsel with the understanding that it cannot be distributed to any other person.
4. On a monthly basis during the pendency of this Agreement, a list of all future structural past eligible inmates who became past eligible for parole at least one day after the date this agreement was approved by the court, along with their parole eligibility dates, shall be given to the law librarian in each Department of Corrections facility. Inmates seeking information as to their own parole eligibility date may obtain this information from the law librarian. A copy of this list shall also provided to
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class counsel with the understanding that it cannot be distributed to any other person.
5. Within 30 days of the date the settlement is approved by the court, a copy of the settlement agreement, with attachments, shall be placed in the law library in each Department of Corrections facility.
6. Within 3 0 days of the adoption of the amendments to the New Jersey Administrative Code referenced herein, copies of the amended regulations shall be placed in the law library in each Department of Corrections facility.
V. Implementation Costs Defendants agree to expend at least $100,000 in addition to
its budgeted expenditures for Fiscal Year 2001 for the improvements and in support of the reporting procedures set forth in this agreement.
VI. Term of the Agreement 1. This agreement shall terminate 18 months after Defendants
certify that they are in compliance with all provisions of this settlement agreement.
2. Notwithstanding Section VI(1), this Settlement Agreement shall automatically terminate four (4) years from the date it has
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been approved by the Court without the need for any motion on behalf of any party.
3. The parties agree that no court shall have jurisdiction to extend the Settlement Agreement beyond this agreed to term of years. There shall be no extension of the terms of the Settlement Agreement.

VII. Alterations The terms and conditions reflected in this Settlement
Agreement shall not be amended, changed or altered orally. Such terms and conditions may be amended, changed or altered only by written agreement between the parties through their respective counsel.

VIII.

Disclaimer of Liability

The parties expressly acknowledge and agree that this

Settlement Agreement does not constitute an admission of liability

by Defendants or the Parole Board. Defendants have denied

liability and expressly continue to deny liability despite their

willingness to enter into this Settlement Agreement. The parties

acknowledge and agree that this Settlement Agreement can be used

for no purpose other than to set forth the understanding of the

parties and may not be introduced as evidence in any other

proceedings, nor form the basis of any other proceedings.

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IX. Dissolution and Severability The parties agree that if any provision or provisions of this
Settlement Agreement are found to be contrary to law, the remaining provisions will not be affected and shall remain in full force and effect.
X. Enforcement 1. Defendants agree to incorporate a regulatory scheme which
gives Plaintiffs a final agency decision as to allegation of inaction within 45 days of parole eligibility. All enforcement actions regarding Defendants' failure to provide a parole board hearing within the time frames set forth in this Settlement Agreement shall be brought in the Superior Court of New Jersey, Appellate Division, as an appeal of a final agency decision.
2. The Settlement Agreement is a contract enforceable under the law of contracts of the State of New Jersey. All other actions to enforce the Settlement Agreement shall be brought in the Superior Court of New Jersey, Chancery Division. Venue shall be in Mercer County.
XI. Non-Retaliation Defendants agree that they shall not impose any negative
consequences on any class member as a result of his or her participation in this class action suit, or as a result of any
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class member having availed himself or herself of any administrative, appellate or other procedure described in this settlement agreement.
XII. Time Requirements of the Parole Act Defendants shall conform their conduct to the time
requirements of the Parole Act no later than two years from the date the Court approves this agreement.
XIII. Right to a Thorough, Full and Fair Hearing Plaintiffs and Defendants recognize that a goal of the
settlement is to eliminate the backlog through the increase of parole panel hearings, the parties also recognize that this goal must be sought without sacrificing the quality of such hearings or the right of every past eligible inmate to a thorough, full and fair hearing on parole eligibility.
XIV. Plaintiffs' Attorneys Fees and Costs 1. Defendants shall pay Plaintiffs' attorneys' fees and
costs in the amount of $110,000 after an Order of Dismissal, with prejudice, has been entered by the federal court.
2. Plaintiffs shall be entitled to attorneys' fees and costs for legal representation which is necessary to the successful enforcement of the Settlement Agreement and shall apply to the
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Court for determination of the amount of such fees and costs. Any application for such attorneys' fees and costs shall be at a rate of $200.00 per hour.
3. Except as set forth above, Plaintiffs shall not make any further application for attorneys fees and costs.

PHILIP STEPHEN FUOCO, ESQUIRE Attorney for the Plaintiffs
JOHN J. FARMER, JR. ATTORNEY GENERAL OF NEW JERSEY Attorney for the Defendants
By:. Dianne M. Moratti Deputy Attorney General

DATED: DATED:

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Exhibit List

List of resolved and unresolved current past eligible

inmates

Exhibit A

Form to be used by current past eligibles to either request

a panel hearing or written reasons why the panel

hearing cannot take place if the Defendants fail

to provide this within 10 weeks after the Settlement

Agreement has been approved by the court

Exhibit B

Form to be used by future non-structural past eligibles to request a hearing

Exhibit C

Form to be used by future structural past eligibles to request a hearing

Exhibit D

Flowchart for current past eligibles

Exhibit E

Flowchart for future non-structural past eligible inmates
Flowchart for future structural past eligible inmates
Complaint

Exhibit F Exhibit G Exhibit H

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EXHIBIT B REQUEST FOR A PAROLE PANEL HEARING FROM A CURRENT PAST ET,IGIBLE IDENTIFIED ON EXHIBIT A
Inmate Name : (Print)
Inmate Number:
Institution:
I am a current past eligible class member whose name appears on Exhibit A to the Settlement Agreement. The deadline for providing me a parole panel hearing has expired and I have not yet had my parole panel hearing. Accordingly, I am requesting that within 30 days of receipt of this notice, the Parole Board provide me either a parole panel hearing or a written reason why the hearing cannot take place.

Signature of Inmate

DATE:

THIS NOTICE WILL NOT BE ACCEPTED BY THE

PAROLE BOARD BEFORE

,

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EXHIBIT C REQUEST FOR A PAROLE PANEL HEARING FROM A FUTURE NON-STRUCTURAL PAST ELIGIBLE INMATE Inmate Name : (Print)i Inmate Number:
Institution:
I am a non-structural past eligible class member whose name appears on the non-structural past eligible monthly reporting list. My parole eligibility date has passed and I have not received my parole panel hearing. Accordingly, I am requesting that within forty five (45) days of receipt of this notice, the Parole Board provide me either a parole panel hearing or a written reason why the hearing cannot take place.
Signature of Inmate
DATE:
THIS NOTICE IS NOT TO BE USED BY INMATES WHO APPEAR ON EXHIBIT A
TO THE SETTLEMENT AGREEMENT
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EXHIBIT D
REQUEST FOR A PAROLE PANEL HEARING FROM A FUTURE STRUCTURAL PAST ELIGIBLE INMATE

Inmate Name: (Print)
Inmate Number:

Institution:

I am a structural past eligible class member whose name

appears on the structural past eligible monthly reporting list.

One Hundred and twenty (12 0) days have passed since the Department

of Corrections and the New Jersey State Parole Board had notice of

my current sentence to the Department of Corrections. In addition,

my parole eligibility date was

. Accordingly, I am appealing

the Board's inaction in this matter and am requesting that within

3 0 days of receipt of this notice, that the Parole Board provide me

either a parole panel hearing or a written reason why the hearing

cannot take place.

Signature of Inmate
DATE:
THIS NOTICE IS NOT TO BE USED BY INMATES WHO APPEAR ON EXHIBIT A
TO THE SETTLEMENT AGREEMENT

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On May 2, 2000, three inmates at the Riverfront State Prison in New Jersey filed a class action lawsuit pursuant to 42 U.S.C.  § 1983 in the United States District Court for the District of New Jersey against the New Jersey State Parole Board. The complaint alleged that the Parole Board knowingly and consistently failed to meet the deadlines for the preparation of pre-parole reports and the conduction of parole hearings, as required by the New Jersey Parole Act of 1979 ("Act"), N.J.S.A. 30:4-123.45 to 30:4-123.69, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  As a result of the Parole Board's alleged inaction, the plaintiffs and thousands of other inmates remained incarcerated past their respective parole eligibility dates. At the peak of the problem, hearings were behind schedule for approximately 5,800 prisoners.  The complaint demanded declaratory and injunctive relief and nominal damages. 

Soon after the case was filed, the parties pursued settlement negotiations.  Ultimately, a settlement was reached and the parties filed a joint motion for approval of the Settlement Agreement.  The District Court (Judge Pisano) certified the case as a class action and approved the settlement as being fair and reasonable. Hawker v. Consovoy, 198 F.R.D. 619 (D.N.J. 2001).  Under the terms of the Agreement, the Parole Board stipulated that it would conduct more timely hearings, and that no such backlog would be allowed to build up again.

