of work credits which meet constitutional standards.
Consequenly, the court will dismiss the due process claim against defendants Degnan and Harned. Accordingly, plaintiff's cross-motion is denied as to those two defendants.
Returning to the issue of defendants Fauver's and Wiechnik's good faith defense, the court concludes that defendants are not entitled to the defense. Given the clarity with which plaintiff's right to compensation is established by N.J.S.A. 30:4-92, and the fact that reasonable persons in defendants' positions as correctional institution officials would have known, and here presumably did know, of the statute regulating inmates compensation,
the defendants are not entitled to immunity from liability. See Harlow v. Fitzgerald, 457 U.S. 819, 102 S. Ct. at 2739; and United States v. Schaefer, 691 F.2d 639 (3d Cir. 1982).
Therefore, the court will grant plaintiff's cross-motion for summary judgment on the due process claim as it relates to defendants Fauver and Wiechnik and those days plaintiff worked without compensation while serving his 1941 and portions of his 1944 sentences. Accordingly, defendants' motion for summary judgment on that claim will be denied without prejudice as to those days of work.
B. Equal Protection
Plaintiff is also claiming a deprivation of equal protection. He is not challenging the classifications which result from the guidelines propounded by defendants Degnan and Harned and implemented by defendants Fauver and Wiechnik. Nor is he arguing that N.J.S.A. 30:4-92 unfairly discriminates between different classes of correctional inmates. Instead, he is arguing that two other inmates allegedly similarly situated to him were granted work credits against present sentences which were earned while serving subsequently vacated sentences.
The mandate of equal protection applies to administrative behavior as well as to legislation and regulations, and, therefore, the court may properly determine whether defendants' conduct conformed to the requirements of equal protection. See, e.g., Jackson v. Marine Exploration Co., Inc., 583 F.2d 1336, 1347 (5th Cir. 1978).
Defendants argue that the former inmates with whom he seeks to be compared, Louis T. Quatro and Michael D. Capano, were awarded work credits under circumstances sufficiently dissimilar to those surrounding plaintiff's request for work credits to preclude an equal protection analysis. They contend that Quatro and Capano were awarded their credits by judges at resentencing hearings and not by correctional institution officials on the advice of the Attorney General's Office, and that plaintiff never sought resentencing.
Furthermore, defendants argue that, even assuming plaintiff and Capano and Quatro were similarly situated in all other respects, the Department of Corrections was not a formal department at the time Quatro's and Capano's cases arose; that whatever advice was received from the Attorney General's office in regard to their case was at most "informal"; and that plaintiff's request was processed under the formally promulgated advice letter of the Attorney General's office which established guidelines now in use. They conclude from this that no equal protection violation occurred. The court agrees and consequently need not address whether Capano, Quatro and plaintiff were similarly situated.
It appears to the court that the Department of Corrections either did not have a formal policy guiding the administration of the statute prior to plaintiff's case and then adopted a formal policy, or had a policy of allowing credits to inmates and chose to abandon that policy and to adopt a new policy with plaintiff's case for the reasons outlined in the court's discussion of the substantive due process claim. There is nothing in the record to indicate that the Department capriciously changed its policy on this matter on numerous occasions or that the policy which it adopted in plaintiff's case was quickly abandoned. It has no reason to believe that defendants intentionally or purposefully discriminated against plaintiff as it would have to find. See Snowden v. Hughes, 321 U.S. 1, 8-9, 88 L. Ed. 497, 64 S. Ct. 397 (1943); Washington v. Davis, 426 U.S. 229, 239-44, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).
More important, the mandate of equal protection does not prevent an administrative agency from changing its policies where there are rational reasons for doing so. Plaintiff cites no authority for the contrary proposition, and the court rejects it. Government agencies would be severely handicapped if their policies could be attacked on equal protection grounds, not only for unreasonably discriminating between persons similarly situated but additionally for treating people differently from the way they were previously treated. Consistency of treatment over time is not the hallmark of equal protection.
Defendants' motion for summary judgment on the equal protection claim will be granted; plaintiff's cross-motion will be denied.
Plaintiff's counsel shall submit an appropriate order.