On appeal from a decision of the Commissioner of the New Jersey Department of Corrections.
Pressler, O'Brien and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
This appeal challenges a portion of the regulations governing state prisoner mail which were adopted and codified by N.J.A.C. 10A:18-1 through 18-4 and, more specifically, 10A:18-1.3, 18-2.7, 18-2.8, 18-3 and 18-4.7.
On January 5, 1987 the New Jersey Department of Corrections (Commissioner or Department) proposed codification of what is represented to have been the preexisting institutional practices regarding mail, visits and telephone rights of State prisoners. 19 N.J.R. 214. Although no public hearings were held, written comments were solicited and submitted by the Public Advocate's office and other interested individuals. On June 5, 1987, following receipt thereof, certain modifications were made and the regulations were adopted. 19 N.J.R. 1214. As a result the Public Advocate filed this appeal.
On August 25, 1988 the Department moved for a temporary remand to permit it voluntarily to modify certain of those regulations. This court denied that motion, specifying that the denial was "without prejudice to the Department taking such further action respecting the challenged rules as it chooses." Thereafter, on February 6, 1989, the Department proposed amendments to some of the challenged regulations by enlarging the definition of "legal correspondence" to include the federal counterparts of the State officials listed in N.J.A.C. 10A:18-2.7(b) and to delete the objectionable provisions of 4.7(d) pertaining to "publications." 21 N.J.R. 277. As a result of these proposed modifications, whose effective date is April 19, 1989, this appeal is confined to a consideration of the challenged regulations not affected thereby.
N.J.A.C. 10A:18-1 et seq. establishes guidelines for inmate correspondence with persons or entities outside the correctional facility and the processing of such mail. It is divided into four categories: correspondence, legal correspondence, publications and packages. Correspondence is defined generally, N.J.A.C.
10A:18-1.3. The second category, "legal correspondence" includes the exchange of letters between an inmate and:
1. An attorney . . . when properly identified as such on the outside of the envelope;
2. A State Public Defender;
3. Office of the Public Advocate;
4. Attorney General's office;
5. Federal and State courts;
6. Federal and State court judges;
7. Offices of Legal Services;
8. Legal assistance clinics . . .
9. Administrative Office of the Courts;
10. Prosecutors' offices;
11. Federal Public Defender;
12. Department of Corrections' Internal Affairs Unit;
13. Department of Corrections' Ombudsmen; and
14. Office of Administrative Law.
[ N.J.A.C. 10A:18-1.3] The third category, "Publications," comprises other material including books, magazines, and newspapers. N.J.A.C. 10A:18-4.1 et seq. Finally, regulations regarding "packages" are codified in N.J.A.C. 10A:18-5.3. Mail is further classified as either "incoming" or "outgoing" and is processed pursuant to separate regulations governing these classifications.
All "incoming correspondence" other than legal correspondence is opened and inspected for contraband, but is not read unless there is reason to believe that it contains "disapproved content and then only upon the prior authorization of the superintendent or his or her designee." N.J.A.C. 10A:18-2.6(e). Correspondence is considered disapproved if:
1. The correspondence (or publication) contains material which is detrimental to the security and/or order of the correctional facility because it incites violence based upon race, religion, creed or nationality and a reasonable inference can be drawn, based upon the experience and professional expertise of correctional administrators, that it may result in the outbreak of violence within the facility;
2. The correspondence (or publication) contains information regarding ...