Before Judges Baime, Wallace, Jr., and Carchman.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2000
On appeal from New Jersey Department of Corrections.
In response to escalating drug traffic in New Jersey prisons, the Department of Corrections (DOC) adopted a policy subjecting visitors to searches using Ion Scan machines and passive canine units. Kevin Jackson, an inmate, attacks the constitutionality of the recently adopted policy. We discern no violation of the prisoners' constitutional rights.
On April 16, 1999, the DOC instituted a new policy designed to deter the introduction of controlled dangerous substances into New Jersey's correctional institutions. Under the policy, visitors seeking entry to any DOC prison facility may be searched by departmental staff using Ion Scan machines and search dogs. An Ion Scan machine is a small vacuum that is run over the visitor's hands and the outside of his pockets. Within five to ten seconds, it is able to determine the presence of illicit drugs. A dog trained to detect controlled dangerous substances is kept behind a chain-link fence. The dog is able to determine the presence of drugs without having physical contact with the visitor. The visitor is subject to a more intrusive search upon a positive finding by either the Ion Scan machine or the search dog. This may include the search of the visitor's vehicle. If no drugs are found despite the positive finding, the visitor is to be escorted from the prison grounds and is denied a visit on that particular day. If, despite a positive finding, the visitor refuses to be further searched, he is barred from prison visits for a longer period of time. Signs describing the new policy are to be posted at all prison facilities. Visitors may choose not to undergo an Ion Scan machine search or a passive canine search, but they will not be granted readmittance to the institution that same day.
At the outset, we note that the present challenge to the constitutionality of the policy is advanced by an inmate, not a visitor. The question then is whether Jackson has the requisite standing to raise this issue.
Unlike its federal counterpart, our Constitution contains no express language confining the exercise of judicial power to deciding actual cases and controversies. Compare U.S. Const. art. III, § 2 with N.J. Const. art. VI, § 1. Our courts have, nevertheless, long held that we will not render advisory opinions or function in the abstract. Crescent Park Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 107 (1971). Nor will we entertain proceedings initiated by litigants who are mere intermeddlers, interlopers or strangers to the dispute. Id. at 107; see also Bergen County v. Port of New York Authority, 32 N.J. 303, 307 (1960); New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240 (1949). Ordinarily, a litigant may not claim standing to assert the rights of third parties. Jersey Shore Medical Center v. Estate of Baum, 84 N.J. 137, 144 (1980). This principle has particular efficacy where one seeks to vindicate the constitutional rights of strangers to the dispute. See In re D'Aconti, 316 N.J. Super. 1, 13 (App. Div. 1998); State, DEPE v. Dopp, 268 N.J. Super. 165, 174 (App. Div. 1993); In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 185 (App. Div.), certif. denied, 130 N.J. 660 (1988). The related doctrines of standing, justiciability, ripeness and mootness that have evolved over the years are incidents of the primary conception that judicial power is to be exercised to strike down governmental action only at the instance of one who is himself harmed, or immediately threatened with harm, by the challenged conduct. Poe v. Ullman, 367 U.S. 497, 504, 81 S. Ct. 1752, 1756, 6 L.Ed.2d 989, 996 (1961). "In short, the judiciary does not have a roving commission to seek and destroy unconstitutionality." In re Ass'n of Trial Lawyers of Am., 228 N.J. Super. at 185.
Jackson claims that he has a direct and concrete liberty interest in receiving visitors. He asserts that this interest is protected by the Fourteenth Amendment's due process requirement. However, the United States Supreme Court has rejected the notion that an inmate has a liberty interest in unfettered visitation. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L.Ed.2d 506, 515 (1989); Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232, 82 L.Ed.2d 438, 447 (1984). The denial of prison access to a particular visitor "is well within the terms of confinement ordinarily contemplated by a prison sentence," Hewitt v. Helms, 459 U.S. 460, 468, 103 S. Ct. 864, 869, 74 L.Ed.2d 675, 686 (1983), and does not "impose atypical and significant hardship . . . in relation to the ordinary incidents of [inmate] life." Sandin v. O'Connor, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 2300, 132 L.Ed.2d 418, 429-30 (1995).
While we harbor deep reservations concerning Jackson's standing, we choose to decide this case on the merits. As we have noted, Jackson has no recognized liberty interest in having access to visitors under the federal constitution. However, our Constitution has been held to be the source of individual liberties more expansive than those conferred by its federal counterpart. See, e.g., State v. Novembrino, 105 N.J. 95, 144-45 (1987); State v. Williams, 93 N.J. 39, 58-59 (1983); Right to Choose v. Byrne, 91 N.J. 287, 303 (1982); State v. Hunt, 91 N.J. 338, 344-45 (1982); State v. Alston, 88 N.J. 211, 226 (1981); State v. Johnson, 68 N.J. 349, 353 (1975); Pollock, "State Constitutions as Separate Sources of Fundamental Rights," 35 Rutgers L. Rev. 707 (1983); Note, "The New Jersey Supreme Court's Interpretation and Application of the State Constitution," 15 Rutgers L.J. 491 (1984). Our Supreme Court has frequently resorted to the New Jersey Constitution in order to afford broader protection of certain personal rights than that afforded by analogous or identical provisions of the federal constitution. State v. Novembrino, 105 N.J. at 145. We do not suggest that prisoners in New Jersey institutions have a protectable right to have access to visitors under the State Constitution. But that possibility has sparked sufficient concern to compel our consideration of the issue on the merits.
Inmates do not shed all of their constitutional rights at the prison gate. There is no iron curtain drawn between the Constitution and New Jersey prisoners. See New Jersey State Parole Bd. v. Byrne, 93 N.J. 192 (1983); Avant v. Clifford, 67 N.J. 496 (1975). While these principles can be articulated with disarming ease, our effort to define the metes and bounds of an inmate's constitutional protections requires an "intricate balancing of prison management concerns with prisoner's liberty." Sandin v. O'Connor, 515 U.S. at 478, 115 S. Ct. at 2297, 132 L.Ed.2d at 426 (citing Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S. Ct. 2963, 2974-76, 4 L.Ed.2d 935, 950-52 (1974)). "Prisons are dangerous places." Blyther v. New Jersey Dept. of Corrections, 322 N.J. Super. 56, 65 (App. Div. 1999). The courts must afford appropriate deference and flexibility to corrections officers trying to manage a ...