On certification to the Superior Court, Appellate Division, whose opinion is reported at 232 N.J. Super. 478 (1989).
For Affirmance in part and For Reversal in part -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
This appeal concerns the constitutionality of a narrow category of regulations promulgated by the New Jersey Department of Corrections, N.J.A.C. 10A:18-2.7 and 10A:18-2.6, which are part of an overall regulatory scheme affecting the exchange of written matter between inmates and non-inmates. Specifically, the issue is whether the federal constitution requires that the category of privileged "legal correspondence" be expanded to include correspondence with public officials, government agencies, and the media.
On January 5, 1987, the New Jersey Department of Corrections (DOC) proposed regulations governing mail, visitation, and telephone rights of state prisoners. Although the DOC did not hold public hearings, it solicited written comments from the Public Advocate, the Superintendent of a State Correctional Facility, and two state prisoners. On June 5, 1987, after incorporating certain proposals, the DOC adopted the regulations. 19 N.J.R. 1214. Thereafter, the Public Advocate filed this appeal directly to the Appellate Division.*fn1
The regulations regarding inmate mail, N.J.A.C. 10A:18-1 to 10A:18-5, establish guidelines for processing and examining
mail between inmates and persons or entities outside the correctional facility. The regulations divide mail into four categories: correspondence, legal correspondence, publications and packages. Correspondence is defined as the "exchange of letters" and refers to all mail that is neither a publication nor legal mail. N.J.A.C. 10A:18-1.3. Legal correspondence is the exchange of letters between an inmate and:
1. An attorney of this State or any other state 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 run by accredited law schools of this or any other State;
9. Administrative Office of the Courts;
10. Prosecutors' offices;
11. Federal Public Defender;
12. Department of Corrections' Internal Affairs Unit;
13. Department of Corrections' Ombudsman; and
14. Office of Administrative Law. [ N.J.A.C. 10A:18-1.3].
Publications comprise all other reading matter, such as hardcover books, newspapers, and magazines. N.J.A.C. 10A:18-4.1 to 10A:18-4.17.
The DOC's classification of mail determines how it is processed. "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(g). Correspondence is deemed "disapproved" if
1. [It] 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. [It] contains information regarding the manufacture of:
iii. Controlled dangerous substances;
vi. Anything of a similar ...