NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1826-15T4
EDWARD GRIMES, APPROVED FOR PUBLICATION Appellant, December 5, 2017 v. APPELLATE DIVISION NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. _____________________________________________
Submitted May 31, 2017 – Decided December 5, 2017
Before Judges Messano, Suter, and Grall.
On appeal from New Jersey Department of Corrections.
Edward Grimes, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
PER CURIAM
The New Jersey Department of Corrections (DOC) has
informally adopted a policy that "[for] security reasons," does
not permit inmates to place phone calls to "cellular, business or non-traditional telephone service numbers" (calling policy).1
As DOC acknowledges, the calling policy applies in all DOC's
correctional facilities and "is not codified in statute or
regulation."
Edward Grimes is an inmate confined at the New Jersey State
Prison (NJSP). His relatives live in other states and none have
a phone other than a cell phone. After Grimes's several
attempts to obtain an explanation for and change of the calling
policy by invoking the inmate remedy process, N.J.A.C. 10A:1-
4.1, -4.5 to -4.6, DOC provided this final response:
[T]he [DOC] prohibits inmates from making calls to cellular telephones. This practice is in effect for a number of security reasons. Family members and friends of an inmate will be unable to accept telephone calls unless they have a functioning land line telephone. The [DOC] strongly encourages inmates to correspond with family and friends through letters in addition to
1 The quoted description is from DOC's website: Department of Corrections, http://www.state.nj.us/corrections/pages/InmateTelephoneSystemIn fo.html (last visited on Nov. 7, 2017). We cite DOC's website because its description and DOC's response to the inmate who appeals are the only statements from the Commissioner's Central Office that the record and legal research have disclosed. Inmate Handbooks are developed at each correctional facility and are reviewed by an assistant commissioner. N.J.A.C. 10A:8-1.3, -3.1 to -3.5.
2 A-1826-15T4 telephone calls in an effort to maintain strong family ties.2
[Emphasis added.]
Grimes appeals and challenges the calling policy and DOC's
informal action establishing and implementing it. R. 2:2-
3(a)(2). He contends the policy was not adopted in compliance
with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1
to -31. Grimes also asserts violations of United States
Constitution: failure to provide procedural protections required
by the Due Process Clause; and violations of the Equal
Protection Clause of the Fourteenth Amendment and the First
Amendment, "applicable to the States through the Fourteenth
Amendment," Reed v. Town of Gilbert, ___ U.S. ___, 135 S. Ct.
2218, 2226, 192 L. Ed. 2d 236, 245 (2015).
We conclude the APA requires adoption of the calling policy
in conformity with the rulemaking procedures of the APA,
N.J.S.A. 52:14B-4 to -5, and remand to the Commissioner for
commencement of that process.3 We further conclude the record on
2 Generally, the Commissioner's Central Office staff has no role in the inmate remedy system; Grimes was granted additional consideration. N.J.A.C. 10A:1-4.1, -4.5 to -4.6. 3 Although Grimes first asserted his APA claim in his reply brief, we address the question because of its "public importance." Coastal Grp. v. Planned Real Estate Deve. Sec. Dep't of Cmty. Affairs, 267 N.J. Super. 49, 56 (App. Div. 1993). In addition, DOC's candid acknowledgment that the calling policy (continued)
3 A-1826-15T4 appeal, even as supplemented by the parties with leave of court,
is inadequate to permit proper review of his constitutional
claims. See State v. Robinson, 200 N.J. 1, 20-21 (2009); Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). We are,
however, convinced that immediate invalidation of the calling
policy would leave a void and create a sudden disruption
detrimental to important interests of the inmates, DOC and the
public. Accordingly, we exercise our discretion to keep the
calling policy in place pending cure of the APA-violation by
promulgation of a regulation in conformity with the APA. See
Hampton v. Dep't Corr., 336 N.J. Super. 520, 530 (App. Div.
2001); Dep't of Corr. v. McNeil, 209 N.J. Super. 120, 125-26
(App. Div. 1986).
I.
Telephone calls are one of many modes of communication
between inmates and their relatives and friends, which DOC
authorizes, regulates and lists among the inmates' rights and
privileges. N.J.A.C. 10A:8-3.5(b)(3)(iii); 10A:18-1.1(a).
Other modes of communication include visits, correspondence,
packages and publications. N.J.A.C. 10A:8-3.5(b)(3)(iii);
10A:18-1.1(a). In addition, since 2015, NJSP has allowed
(continued) is not codified in a statute or regulation most likely invited the responsive challenge.
4 A-1826-15T4 inmates to receive emails and photos sent by cell phone. DOC
has made that possible with a kiosk system installed in several
facilities, including NJSP. The service provider delays
transmission and receipt for fifteen minutes to permit review by
DOC staff.4 By regulation promulgated pursuant to the APA, calls
placed by inmates "may be monitored and recorded." N.J.A.C.
10A:18-8.3.
Each correctional facility's handbook must include written
procedures the facility must develop to allow its inmates
reasonable and equitable access to public telephones. The
procedures must address hours of availability, duration of calls
and "[a]ny limitation." N.J.A.C. 10A:18-8.1(a), -8.2.
NJSP's 2016 handbook explains: DOC has made public
telephones available for inmate use in order "to keep and to
strengthen ties with family, friends, community and the courts."
It also describes what an inmate must do to use the system.
An inmate must obtain an individual personal identification
number (IPIN) and complete a form providing the names and
numbers of no more than ten relatives, friends and
acquaintances. DOC then verifies the names and numbers.
Thereafter, each number must be approved by DOC and the Global
4 This information is set forth in a certification of the Chief of DOC's Special Investigation Division (SID) submitted by DOC.
5 A-1826-15T4 Tel Link Corporation (GTL), the service provider for the inmate
phone system. An inmate's IPIN-list (a list of that inmate's
numbers verified and approved) is not activated until all steps
are completed. The system does not transmit a call to a number
that is not on the inmate's IPIN-list.
The calling policy is not stated in a regulation or
reproduced in the NJSP's handbook; it is described. NJSP's 2016
handbook's description is stated differently than DOC's
description on its website, and that handbook contains two
differing descriptions. One directs inmates to tell people they
want to call that they must have a "Traditional land line phone
only." (Emphasis added.). Another identifies numbers for a
"Cell Phone" and numbers for phones with "Non Traditional
Telephone Services (i.e.; Voice-over-Internet Protocol VoIP) as
prohibited numbers an inmate may not submit for approval.
There are four different descriptions of numbers subject to
the calling policy in this record: 1) "non-traditional telephone
service numbers"; 2) numbers for "Non Traditional Telephone
Services (i.e.; Voice-over-Internet Protocol VoIP)"; 3)
"Traditional land line phone only"; and, 4) "functioning land
line telephone." Presumably the inconsistency is an unintended
consequence of DOC's informal adoption of the calling policy,
6 A-1826-15T4 which would have been detected and resolved in the process of
promulgating a regulation pursuant to the APA.
The record does not permit us to identify with certainty
when the calling policy took effect. Because NJSP's 2007
handbook does not mention the type of phone or phone service
recipients of an inmates' calls must have and NJSP's 2016
handbook does, it was likely implemented between those dates.
Most likely it was implemented in April 2010; an April 8, 2010
memo from the Administrator of NJSP to the facility's inmate
population gives notice of a Zero Tolerance policy and provides
"examples" of prohibited IPIN telephone numbers consistent with
those listed in NJSP's 2016 handbook. But the Chief of DOC's
Special Investigation Division (SID) certified, to the best of
his recollection, the policy was in place in 1989, when he was
first employed by DOC.
Grimes, as he did during the inmate remedy process, points
to what he perceives to be inexplicable inconsistencies and
practical problems with the calling policy. In 2015, NJSP was
allowing inmates to receive emails and photos sent by cell phone
and, at the same time, prohibiting him from calling his
relatives' cell phone numbers, even those numbers approved and
verified before the policy was implemented. Grimes also
7 A-1826-15T4 mentions the security measures in place — call monitoring and
recording and the pre-approval process.
Grimes supplemented the record with an order entered by a
District Court Judge of the United States District Court for the
District of New Jersey,5 which denies DOC's motion to dismiss an
action challenging the calling policy. The order includes
statistics on the number of households with only wireless
telephones as of 2013 and reports that the court's initial
research had not revealed a single state with a ban on inmates'
calls to cell phones as broad as DOC's calling policy.
Grimes, without identifying his source, asserts that eighty
to ninety percent of all phone calls involve cell phones and
many people, including his sister and his emergency contact,
cannot afford a cell phone and a landline. Grimes submits, as
he did in his inmate remedy form, that DOC and its inmates
should join the 21st century, a time in which "land lines . . .
are rapidly becoming obsolete." Finally, Grimes notes what he
views as hypocrisy — NJSP's proclaimed interest in inmates
5 Shamsiddin A. Abdur-Raheem v. N.J. Dep't of Corr. (order denying motion to dismiss No. 15-1743, (DNJ May 31, 2016). Three other law suits challenging DOC's calling policy were dismissed for failure to state a claim by different judges. Graf v. Lanigan, No. 14-2613, 2016 U.S. Dist. LEXIS 9198 at *1, *2 (D.N.J. Jan. 27, 2016); Love v. N.J. Dep't of Corr., No. 14- 5629, 2015 U.S. Dist. LEXIS 61678, (D.N.J. May 12, 2015); Stokes v. Lanigan, No. 12-1478 (PGS), 2012 U.S. Dist. LEXIS 142185, at *1 (D.N.J. Oct. 2, 2012).
8 A-1826-15T4 communicating with family members and a calling policy thwarting
such communication.
The Chief of SID, in his certification supplementing the
record, highlights security risks favoring the policy: cell
phones can be carried nearly anywhere and used to orchestrate
criminal activity in real time in and outside of prison,
including escape; landline billing is easier to obtain; cell
phone accounts may have multiple users; a past-incident
involving a named-inmate, which the named-inmate contradicts in
his certification; and the problems presented when inmates have
cell phones in prison, which seem irrelevant.
Throughout the inmate remedy process, Grimes acknowledged
the calling policy's existence and stressed it could and should
be changed. The purpose of the inmate remedy system is to allow
inmates to "formally communicate with correctional staff to
request information" and "present issues." N.J.A.C. 10:1-4.1, -
4.5 (emphasis added); see Ortiz v. N.J. Dept. of Corr., 406 N.J.
Super. 63, 66-67 (App. Div. 2009). Surprisingly, no NJSP or DOC
staff member who responded to Grimes during that process
informed him that N.J.A.C. 10A:1-1.2 authorizes petitions for
rulemaking.
9 A-1826-15T4 II.
Agencies may "act informally, or formally through
rulemaking or adjudication in administrative hearings." Texter
v. Dep't of Human Servs., 88 N.J. 376, 383-84 (1982) (citations
omitted); see N.J.S.A. 52:14B-3(2). An agency's ability to
select procedures it deems appropriate to accomplish its
statutory mission is limited by "the strictures of due process
and of the [APA]." In re Solid Waste Util. Cus. Lists, 106 N.J.
508, 519 (1987). The Department of Corrections'
responsibilities are broad. N.J.S.A. 30:1B-3 (DOC's purpose
includes protection of the public and the care, discipline,
treatment and preparation of inmates for "release and
reintegration into the community").
The APA defines the critical terms "administrative rule"
and "rule" to include an "agency statement of general
applicability and continuing effect that implements or
interprets . . . policy" and to exclude "statements concerning
the internal management or discipline of any agency," and
"intra-agency statements." N.J.S.A. 52:14B-3.2. In Metromedia,
Inc. v. Director, Div. of Taxation, 97 N.J. 313, 331-32 (1984),
the Court explained that rulemaking is required "when all or
most" of six relevant factors the Court identified in that case
"are present and preponderate in favor of the rule-making."
10 A-1826-15T4 Taking the six factors favoring rulemaking in order and
beginning with the three involving the scope and reach of the
policy: (1) DOC's calling policy applies to all inmates in
correctional facilities and to their relatives and friends; it
has "wide coverage encompassing a large segment of the regulated
or general public," not an "individual" or "select group." (2)
The calling policy is a blanket policy with no exceptions; it is
"intended to" be applied "generally and uniformly to all
similarly situated persons," and it is. (3) The calling policy
could not possibly be applied to reach back in time; a ban on
outgoing phone calls necessarily operates "prospectively."
Ibid.
We turn to the remaining factors addressing content: (4)
The absence of any mention of cell phones or types of service in
NJSP's 2007 handbook and the prohibition of calls on that basis
stated in the 2016 NJSP handbook suggests the calling policy
imposes a new restriction not inferable on any basis other than
the breadth of the Commissioner's discretion to operate the
correctional facilities. (5) In the absence of any evidence
suggesting otherwise, the policy "reflects [a new]
administrative policy" or a clear change in policy, but because
the Chief of DOC's SID represents the policy may be longstanding
and the documentary evidence undercuts, but does not
11 A-1826-15T4 definitively refute that SID's assertion, we give this factor no
weight in either direction. Finally, (6) DOC's calling policy
is a decision on policy that involves an exercise of the
Commissioner's discretion and expertise in balancing the
rehabilitative benefits of communication against the risk posed
by communication through modern and rapidly changing modes.
The five Metromedia factors that are established all weigh
in favor of rulemaking in conformity with APA procedures. But
the inquiry cannot end until we determine whether the calling
policy is exempt from the APA as either a statement "concerning
the internal management or discipline" of DOC or as an "intra-
agency" statement of DOC. N.J.S.A. 52:14B-3.2.
In Woodland Private Study Group v. State, 109 N.J. 62, 74
(1987), the Court addressed and ultimately defined "an intra-
agency" statement as (1) a communication between agency members
that (2) does not have a substantial impact on (3) the rights or
legitimate interests of the regulated public." Id. at 75. A
legitimate interest is a matter "of justifiable concern." Id.
at 74.
In Woodland the Court instructed: "The inquiry is whether
the agency's interest in streamlined procedure is outweighed by
the importance of the interests that are affected. Generally
where the interest implicated is legitimate, the balance will
12 A-1826-15T4 tilt in favor of notice and hearing for internal actions that
have a substantial impact on that interest." Id. at 75.
DOC's final response to Grimes, quoted at the outset of
this opinion, highlights the policy's impact on the legitimate
interest of the entire group of inmates and that group's
relatives and friends. Repeating the critical portion of DOC's
response, "Family members and friends of an inmate will be
unable to accept telephone calls unless they have a functioning
land line telephone." Another portion of the response
implicitly recognizes the legitimacy and significance of such
conversation and the impact of the restriction by advising, DOC
"strongly encourages" letter writing "to maintain strong family
ties."
The conversation of family members and friends restricted
by the calling policy is the mutual and legitimate interest of
the participants, and its restriction is a matter of mutual
justifiable concern. Id. at 74-75. The minimal burden of
rulemaking is far outweighed by the legitimate interests the
calling policy affects. Thus, Woodland bars an exemption from
rulemaking as an "intra-agency" statement.
We also conclude the calling policy's significant impact on
members of the public precludes exemption as a statement of
"internal management or discipline." N.J.S.A. 52:14B-2. The
13 A-1826-15T4 policy directly addresses conduct of inmates' relatives and
friends. See Bullet Hole, Inc. v. Dunbar, 335 N.J. Super. 562,
589 (App. Div. (2000) (finding an impact on much less
significant basis). The number of people outside the
correctional facility affected by the calling policy's
limitations on conversation is a group with membership that
could equal, and potentially significantly exceed, the number of
inmates; after all, DOC permits an inmate to include up to ten
names and phone numbers on his or her IPIN-list. The calling
policy concerns inmates, but it more directly impacts people
outside the prisons. Thus, the internal management and
discipline exception does not apply.
Importantly, compliance with the APA procedures serves the
interests of "fairness and due process." Holmdel Builders Ass'n
v. Holmdel, 121 N.J. 550, 578 (1990). Compliance requires
notice and an opportunity to present pertinent information, and
compliance also requires an articulation of the basis, standards
and principles informing the exercise of the Commissioner's
discretion. In re Provision of Basic Generation Serv., 205 N.J.
339, 349 (2011); Holmdel Builders, supra, 121 N.J. at 578;
Jenkins v. Fauver, 108 N.J. 239, 255 (1987); Metromedia, supra,
97 N.J. at 331; Avant v. Clifford, 67 N.J. 496, 564 (1975)
(Conford, P.J.A.D., Temporarily Assigned, concurring) (endorsing
14 A-1826-15T4 the value of public commentary prior to adoption or amendment of
prison regulations, which an undivided Court endorsed in
Jenkins, supra, 108 N.J. at 255-56).
Because the APA requires adoption of the calling policy in
conformity with its rulemaking procedures, the informally
adopted calling policy is invalid. As indicated at the outset
of this opinion, the likely disruption of immediate invalidation
would disserve the important institutional, public and personal
interest implicated. Accordingly, we remand for prompt
commencement of rulemaking and continue the current policy
pending a rulemaking proceeding.
Reversed and remanded to the Commissioner with direction to
proceed without delay.
15 A-1826-15T4