On appeal from the Commissioner of the Department of Corrections.
Matthews, Furman and Havey.
At issue on this appeal is the applicability of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 et seq., and of L. 1985, c. 94, effective March 26, 1985, in prison disciplinary proceedings. An amendment to N.J.S.A. 52:14F-8, L. 1985, c. 94 in pertinent part adds State penal and correctional institutions to the listing of agencies excepted, in minor disciplinary cases, from jurisdiction of administrative law judges within the Office of Administrative Law:
Unless a specific request is made by the agency, no administrative law judge shall be assigned by the director to hear contested cases with respect to:
a. The State Board of Parole; the Public Employment Relations Commission; The Division of Workers' Compensation; the Division of Tax Appeals; or the management or operation by any agency of a State custodial, penal or correctional institution or program, insofar as the acts of the agency relate to the internal affairs of the institution or program unless the sanctions arising from a single incident involve the loss of 365 days or more of time credits awarded pursuant to R.S. 30:4-140.
The four appellants were all found guilty of prison infractions after disciplinary hearings. Condone and Zeltner received sanctions including 365 days' loss of commutation credits under N.J.S.A. 30:4-140, Moses and Buck sanctions including 90 days' loss of commutation credits. We denied Zeltner's prior motion for leave to appeal, upon the Attorney General's concurrence in a new hearing for Zeltner. On this appeal, all four appellants contend that they are entitled to contested case hearings before an administrative law judge under L. 1985, c. 94. Condone, Moses and Buck also contend that they were deprived of
procedural safeguards of the APA to which they were entitled in their prison disciplinary hearings.
As enacted, L. 1968, c. 410, the APA excepted State penal and correctional institutions in administering their internal affairs from the definition in N.J.S.A. 52:14B-2(a) of "State agency" subject to the act. That exception was deleted by L. 1981, c. 27. Meanwhile, the Office of Administrative Law was established pursuant to N.J.S.A. 52:14F-1 et seq., L. 1978, c. 67. N.J.S.A. 52:14F-8 provided for assignment of contested State agency cases, as defined in N.J.S.A. 52:14B-2(b), to administrative law judges. The definition excluded prison disciplinary hearings because, prior to L. 1981, c. 27, penal or correctional institutions were not State agencies within the APA. As recognized in Avant v. Clifford, 67 N.J. 496 (1975), the APA and its procedural safeguards did not apply between 1968 and 1981 in prison disciplinary proceedings. Whether they applied thereafter and, if so, the effect of L. 1985, c. 94 must be resolved.
On this appeal both sides agree that the new enactment, L. 1985, c. 94, provides a right to a contested case hearing before an administrative law judge upon imposition of the sanction of 365 days' loss of commutation credits in a prison disciplinary proceeding. We agree. Accordingly, we hold that Condone, who in fact received that sanction, has the right to proceed before an administrative law judge in a contested case hearing. We also hold that under the particular circumstance that the sanction of 365 days' loss of commutation credits was imposed upon Zeltner, although subsequently vacated, he, too, is entitled to a contested case hearing before an administrative law judge; the offense charged against him necessarily involves the potential loss of 365 days of time credits, within the express terms of L. 1985, c. 94. In contested case hearings, the APA practice and procedures govern.
By the same analysis Moses and Buck are barred from contested case hearings before an administrative law judge under L. 1985, c. 94, because their prison disciplinary sanctions
in fact included loss of less than 365 days' commutation credits. Their remaining contention is that their convictions and sanctions should be vacated because of noncompliance with APA procedural safeguards in their prison disciplinary hearings. They do not dispute that the proceedings against them conformed to Department of Corrections regulations, which were approved in Avant v. Clifford but fall short of some of the APA procedural safeguards. According to their argument, Avant v. Clifford was repealed ...