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Selobyt v. Keough-Dwyer Correctional Facility of Sussex County

February 10, 2005


On appeal from a Final Decision of the Department of Corrections, Sussex County.

Before Judges Kestin, Lefelt and Alley.

The opinion of the court was delivered by: Lefelt, J.A.D.


Submitted December 7, 2004

While confined in Sussex County's Keough-Dwyer Correctional Facility, Joseph Selobyt, a State prisoner, received a ten-day disciplinary detention for possessing and using a non-prescribed intoxicant, N.J.A.C. 10A:4-4.1 (.203,.204), and being in an unauthorized area N.J.A.C. 10A:4-4.1 (.402). After the Facility's warden denied Selobyt's internal appeal, he appealed the disciplinary decision directly to the Appellate Division.

Before us, Selobyt argues for reversal of his disciplinary sanction because the County Facility failed to adhere to the Commissioner of the Department of Corrections' regulations dealing with the taking, custody, and control of urine samples, N.J.A.C. 10A:3-5.10 and 5.11, and because the Facility imposed discipline without sufficient evidence of Selobyt's misconduct.*fn1 We decline to consider these issues because Selobyt's appeal should have been filed in the Law Division as an action in lieu of prerogative writs.*fn2 Consequently, we transfer the matter to the Law Division and dismiss Selobyt's appeal to us.

Here are the basic jurisdictional principles governing judicial review of agency decisions. The 1947 New Jersey Constitution superseded prerogative writs jurisdiction, which had been the primary mechanism for review of agency actions,"and, in lieu thereof," afforded"review, hearing and relief... in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right...." N.J. Const. art VI, § 5, ¶ 4. In accordance with this constitutional provision, the Supreme Court promulgated a rule that allocates appeals, as of right, to the Appellate Division only"to review final decisions or actions of any state administrative agency or officer,*fn3 and to review the validity of any rule promulgated by such agency or officer...." R. 2:2-3(a)(2).

The general rule is that"every proceeding to review the action or inaction of a state administrative agency would be by appeal to the Appellate Division." Cent. R.R. Co. of N.J. v. Neeld, 26 N.J. 172, 185, cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed. 2d 1371 (1958). However,"every proceeding to review the action or inaction of a local administrative agency would be by complaint in the Law Division...." Id. at 184-85."Only two exceptions to this [division of authority between the Appellate Division and the Law Division] have been judicially recognized." Pascucci v. Vagott, 71 N.J. 40, 52 n.2 (1976) (citing Pfleger v. State Highway Dep't, 104 N.J. Super. 289, 291-93 (App. Div. 1968) (requiring appeal to Law Division when a record must be developed), and Baldwin Constr. Co. v. Essex County Bd. of Taxation, 27 N.J. Super. 240, 242 (App. Div. 1953), certif. granted, 14 N.J. 494 (1954), aff'd, 16 N.J. 329 (1954) (requiring appeal to Law Division when agency's authority is confined to single locality)). See Montclair Township v. Hughey, 222 N.J. Super. 441, 446 (App. Div. 1987) (explaining the two exceptions to the normal division of responsibility between the Law Division and Appellate Division).

With these basic principles in mind, we address the County Facility's two arguments for retaining Selobyt's appeal in the Appellate Division. First, the Facility argues that because Selobyt does not seek review of a"mandated ministerial obligation," his appeal is not cognizable as an action in lieu of prerogative writs. The County Facility cites Cohen v. Board of Trustees of the University of Medicine and Dentistry of New Jersey, 240 N.J. Super. 188, 199-200 (Ch. Div. 1989), as support for this argument that R. 4:69-1 applies only"to causes that would previously have been prosecuted under the former writ of mandamus."

Rule 4:69-1, actions in lieu of prerogative writs, however, is not limited to disputes involving the writ of mandamus. Rule 4:69-1 incorporates the four common civil action prerogative writs that were available in the pre-1947 Supreme Court: certiorari, quo warrantor, prohibition, and mandamus. Alexander's Dep't Stores of N.J., Inc. v. Borough of Paramus, 125 N.J. 100, 107 (1991).

In Selobyt's case, certiorari would be the relevant writ as it traditionally had been utilized to review agency determinations. In re LiVolsi, 85 N.J. 576, 594 (1981). The other writs are not applicable. Mandamus was properly utilized to require governmental officials to perform only ministerial duties. McKenna v. N.J. Highway Auth., 19 N.J. 270, 275-76 (1955). Quo warrantor had been utilized to challenge the right of an individual to hold public office. N.J. State Lodge-Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 427 (App. Div.), certif. denied, 22 N.J. 138 (1956). Prohibition had been used to block proceedings when a tribunal was acting manifestly beyond its jurisdiction. Alexander v. Crollott, 199 U.S. 580, 26 S.Ct. 161, 50 L.Ed. 317 (1905).

The County Facility is incorrect in its interpretation of Cohen, supra, 240 N.J. Super. at 199-200, as limiting R. 4:69-1 to mandamus proceedings. Cohen merely analyzed whether the action challenged in that case could be considered ministerial or discretionary, which would not fall within the historic writ of mandamus. The decision did not conclude that only mandamus was encompassed within R. 4:69-1. Indeed, such a conclusion would be in error.

In its second argument, the County Facility recognizes that when determining the proper judicial forum for an administrative appeal, whether an agency can be considered state or county is irrelevant if the agency has only local authority. Montclair Township, supra, 222 N.J. Super. at 446; Mathesius v. Mercer County Improvement Auth., 177 N.J. Super. 626, 634 (App. Div.), certif. denied, 87 N.J. 425 (1981). Though judicial review of actions taken by an agency with only local authority must be brought in the Law Division, Mathesius, supra, 177 N.J. Super. at 634, the County Facility nevertheless argues that it operates"under the jurisdiction of the State Department of Corrections," and that this appeal, therefore, properly belongs in the Appellate Division.

Preliminarily, it is beyond cavil that the Keough-Dwyer County Correctional Facility does not qualify as a state agency under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -24. The APA defines state agencies as including"each of the principal departments in the executive branch of the State Government, and all boards, divisions, commissions, agencies, departments, councils, authorities, offices or officers within any such departments now existing or hereafter established and authorized by ...

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