On appeal from a Final Decision of the New Jersey Department of Corrections.
Before Judges Cuff, Lefelt and
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Tafawa Balagun, an inmate at South Woods State Prison, appeals from a final decision of the Department of Corrections imposing disciplinary sanctions for possessing materials relating to a security threat group, the Bloods gang, in violation of N.J.A.C. 10A:4-4.1(a). Balagun argues that he is neither a member of any gang nor sympathetic to the Bloods and has been previously sanctioned for possessing some of the same materials. He also points out that the Department has failed to demonstrate how these materials are gang-related, and contends that the materials contain common cultural expressions in support of black nationalism and against racism. We find merit in these arguments and reverse and remand.
A routine search of Balagun's cell revealed numerous letters and pictures which according to several corrections officers related to the United Blood Nation, a group that presents a recognized security threat to the prison. The officers seized the claimed contraband, placed Balagun in prehearing detention, and charged him with violating N.J.A.C. 10A:4-4.1(a)(*.011), which prohibits"possession... of anything relating to a security threat group."
The seized letters and pictures were reviewed by Senior Investigator Robert Melendez of the Special Investigations Division responsible for disseminating information regarding groups that are security threats. N.J.A.C. 10A:5-6.4(a). After reviewing the seized materials, Melendez concluded that the letters and pictures related to the Bloods and then, presumably to assist subsequent reviewers, highlighted Blood signs, references and symbols located throughout the material.
At the discipline hearing, Balagun indicated that he had received most of the documents from his brother and had possession of them for four to five years. Some of the documents he claimed never to have seen before. The hearing officer found Balagun guilty of the charge by relying on the portions of the evidence highlighted by Senior Investigator Melendez. The hearing officer imposed fifteen-days detention with credit for time served, 180 days of administrative segregation, 180 days loss of commutation credits, and disposal of the contraband. The hearing officer reasoned that the sanctions were appropriate because this was Balagun's second offense for possessing gang related materials. After exhausting his available administrative remedies, Balagun appealed to this court.
The Department argues that because the hearing officer based his decision on substantial evidence in the record, the decision was not arbitrary. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Because there was substantial evidence supporting the decision, according to the Department, we must affirm even if we disagree with the conclusions that were reached. In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990).
While these principles are generally correct, in this case the hearing officer has not provided any reasons explaining why he concluded that these materials are gang related and deserving of sanctions. In providing Balagun with a summary of the evidence relied upon, as is required under Avant v. Clifford, 67 N.J. 496, 522-24 (1975), the hearing officer merely indicated that he relied upon the portions of the documents highlighted by Melendez. While several words in the hearing officer's handwritten summary are totally illegible, this appears to be the only reason provided by the hearing officer to explain the evidence relied upon in reaching his decision. This is unacceptable.
We recognize that determining whether prison materials are gang related constitutes a particular Department of Corrections' expertise that is usually exercised by staff members like Melendez. E.g., New Jersey Dep't of Pub. Advocate v. New Jersey Bd. of Pub. Utils., 189 N.J. Super. 491, 519 (App. Div. 1983). Normally, when reviewing agency decisions, we defer to matters that lie within the special competence of an administrative tribunal. E.g., Brady v. Dep't of Pers., 149 N.J. 244, 256-57 (1997).
But, deference does not require that we forego a careful review of administrative decisions simply because an agency has exercised its expertise. We cannot accept without question an agency's conclusory statements, even when they represent an exercise in agency expertise. The agency is"obliged...'to tell us why.'" In re Valley Hosp., 240 N.J. Super. 301, 306 (App. Div. 1990) (quoting Drake v. Human Serv. Dep't, 186 N.J. Super. 532, 538 (App. Div. 1982)), certif. denied, 126 N.J. 318 (1991).
We have repeatedly stated that while an administrative decision is entitled to deference, we will not perfunctorily review and rubber stamp the agency's decision. Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)(citing Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)). Instead, we insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken.
The exercise of our review function is especially important in this case. Not only did the hearing officer fail to explain his decision, but the sections of the confiscated materials that Melendez highlighted and were relied upon by the hearing officer were not reproduced in the record. Thus, we could not even locate the ...