On appeal from the Department of Corrections.
Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[209 NJSuper Page 121] This matter comes on before this court on appeal by appellant Glenn Leo McNeil, an inmate in State correctional custody, from administrative action of the Department of Corrections ("Department") punishing him for violation of disciplinary standards.
While appellant makes no contention in his brief that he did not violate the standards, he raises the legal argument that they were not adopted in conformity with the rule making procedures of the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 et seq., and thus the discipline could not be validly imposed.
In view of the limited nature of appellant's contentions we only briefly state the facts and procedural history of the case. In August 1985, appellant, who was confined at the Adult Diagnostic and Treatment Center, Avenel, as a result of a conviction and sentence on a plea of guilty to an aggravated sexual assault indictment, was involved in an alleged assault. Ultimately, for violation of disciplinary standards governing inmates, he received the administrative sanction of 15 days disciplinary detention, 90 days administrative detention and 180 days loss of commutation time. This appeal, filed September 30, 1985, followed. On October 3, 1985 we stayed the sanctions pending resolution of the appeal.
An understanding of the issues on this appeal requires that we set forth the background of legislative requirements for establishment of correctional institution disciplinary standards under the APA, a law adopted by L. 1968, c. 410, effective September 1, 1969. The APA defined "Administrative rule" and "rule" (L. 1968, c. 410, § 2) and established certain formal procedures for the adoption of rules. See L. 1968, c. 410, § 4. While the definition of administrative rule and rule was broad enough to include correctional institution disciplinary standards, the APA excepted agencies with the primary responsibility to manage or operate "penal or correctional institution[s]," as well as certain other agencies from its rule making requirements. Thus the former Department of Institutions and Agencies, the predecessor agency to the Department, was exempt from the APA with respect to adoption of disciplinary standards. See Avant v. Clifford, 67 N.J. 496, 554-557 (1975).
In 1981 the Legislature amended and supplemented the APA with the Legislative Oversight Act, L. 1981, c. 27, effective March 8, 1981. The principal purpose of this act was to authorize the Legislature to veto by concurrent resolution most administrative rules adopted by state agencies. L. 1981, c. 27, §§ 1-4. In addition, the Legislative Oversight Act amended the definition of "State agency" in the APA to eliminate the exemption for certain state agencies, including those with the primary responsibility to manage or operate penal or correctional institutions. L. 1981, c. 27, § 10.
The Legislative Oversight Act was controversial. Indeed the executive branch refused to comply with its oversight provisions, thus leading to the litigation culminating in General Assembly of State of New Jersey v. Byrne, 90 N.J. 376 (1982), in which the Supreme Court declared them unconstitutional. However, subsequently the court in Phillips v. State, Dept. of Defense, 98 N.J. 235, 252 (1985), indicated that in General Assembly v. Byrne it had not disturbed the expansion in the oversight act of the definition of state agencies subject to the rule making requirements of the APA. Accordingly, after adoption of the Legislative Oversight Act agencies operating penal or correctional institutions have been subject, when adopting rules, to the APA. However no case specifically stated this conclusion until Zeltner v. N.J. Dept. of Corrections, 201 N.J. Super. 195, 200 (App.Div.1985).
From this history it is clear that inasmuch as the parties are in agreement, and correctly so, that disciplinary standards are administrative rules as defined in the APA, any standards adopted or amended (see N.J.S.A. 52:14B-4) after March 8, 1981 should have been adopted or amended in accordance with rule making procedures of the APA. As it is undisputed that the Department has not followed APA procedures in adopting the standards now in effect and the standards have been amended since March 8, 1981, it follows that appellant has been disciplined under procedurally defective standards.
This conclusion compels us to consider what relief, if any, should be given to appellant. He contends that the Department has acted in bad faith in failing to follow the procedural requirements of the APA. He also asserts that the Commissioner of Corrections, on February 20, 1985, sent a letter to the attorney for the inmates involved in Zeltner v. N.J. Dept. of Corrections, supra, 201 N.J. Super. at 195, indicating his knowledge of the APA rule making requirements but that the Department has still failed to follow APA procedures though it could have done so. Further, appellant points out that after filing this appeal he moved to remand the matter to the Chancery Division for a judge to take evidence and make findings of fact as to why the Department had not complied with the APA. We denied this motion but permitted appellant to contend on the appeal that the case should be remanded to develop this record. He contends that a remand would permit him to establish the Department's bad faith thus justifying the reversal of the sanctions against him.
On the other hand the attorney general asserts that before Phillips v. State, Dept. of Defense, supra, 98 N.J. at 235, decided January 21, 1985, it was not apparent the expanded definition of "State agency" in the APA adopted by the Legislative Oversight Act survived General Assembly v. Byrne, supra, 90 N.J. at 376. Further, he maintains that Phillips was limited to the Department of Defense and thus not until the decision in Zeltner v. N.J. Dept. of Corrections, supra, 201 N.J. Super. at 195, decided May 14, 1985, was it clear that the APA rule making requirements applied to the Department. He further sets forth that in response to Zeltner the Department is now in the process of adopting its disciplinary standards in accordance with APA procedures and has published them as proposed rules on January 6, 1986 at 18 ...