On Appeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 02-cv-03045) District Judge: Hon. Garrett E. Brown, Jr. On Appeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 02-cv-05298) District Judge: Hon. William H. Walls.
The opinion of the court was delivered by: Stapleton, Circuit Judge
BEFORE: FUENTES, STAPLETON and ALARCON,*fn1 Circuit Judges.
We have before us two cases that have been consolidated on appeal.*fn2 While the District Courts in these cases both addressed the constitutionality of a New Jersey regulation governing the processing of incoming inmate legal mail, they reached conflicting conclusions. These consolidated appeals present two principal issues. First, do state prisoners have an interest protected by the First Amendment in being present when their incoming legal mail is opened? We conclude that our prior case law establishes that they do. Second, may New Jersey open prisoners' legal mail outside of the prisoners' presence pursuant to a state policy intended to protect the safety and security of its prisons by reducing the risk of anthrax contamination? We conclude that New Jersey has not shown that its legal mail policy is reasonably related to its interest in protecting the safety and security of its prisons. Accordingly, New Jersey's legal mail policy does not withstand constitutional scrutiny. We will affirm the grant of injunctive relief in Allah and reverse the District Court's summary judgment for the defendants in Jones.*fn3
Prior to October 19, 2001, New Jersey regulations governing the Department of Corrections required that "[i]ncoming legal correspondence be opened and inspected in front of the inmate to whom it is addressed." See 33 N.J. Reg. 4033(a) (Oct. 23, 2001).
On September 11, 2001, in response to the terrorist attacks on the World Trade Center and Pentagon and associated disruptions, the Acting Governor of New Jersey, Donald DiFrancesco, declared a state of emergency in New Jersey. In that declaration, Executive Order No. 131-2001, Governor DiFrancesco directed that the heads of any agency or instrumentality of the State government with authority to promulgate rules may, for the duration of the Executive Order, subject to my prior approval and in consultation with the State director of Emergency Management, waive, suspend or modify any existing rule the enforcement of which would be detrimental to the public welfare during this emergency, notwithstanding the provisions of the Administrative Procedure Act or any law to the contrary.
Executive Order No. 131-2001 (Sept. 11, 2001) (emphasis added).
In September and October 2001, one or more individuals mailed a string of letters containing anthrax through the postal system. At least four letters containing anthrax were processed in the Hamilton, N.J. mail processing center. In all, five people died and thirteen others were sickened by the mailings. In New Jersey, there were no fatalities, but there were five confirmed and two suspected infections.
In response to these anthrax mailings, the Acting Commissioner of the New Jersey Department of Corrections, acting under the authority provided by the statewide declaration of emergency, issued an amendment to New Jersey's legal mail policy that suspended the regulatory requirement that legal mail be opened in the addressee prisoner's presence. The statement accompanying the amendment reads, in pertinent part:
N.J.A.C. 10A:18-3.4(b) requires that incoming legal correspondence be opened and inspected in front of the inmate to whom it is addressed. Suspension of N.J.A.C. 10A:18-3.4(b) is necessary to protect the health, safety and welfare of the people and to aid in the prevention of loss to and destruction of property . . . .
This special adopted amendment is necessary in order to inhibit the possible spread of contamination should a toxic biological substance be introduced by way of incoming legal correspondence addressed to an inmate who is incarcerated at a facility of the Department of Corrections. The Department is establishing remote areas at each facility for the processing of all incoming correspondence by trained staff members. Inmates shall not be present or involved in the processing or opening of any incoming correspondence.
33 N.J. Reg. 4033(a) (Oct. 23, 2001). The regulation now reads, in pertinent part:
Inspection of incoming legal correspondence
(a) Incoming legal correspondence shall be opened and inspected for contraband only.
(b) Incoming legal correspondence shall not be read or copied. The content of the envelope may be removed and shaken loose to ensure that no contraband is included. After the envelope has been inspected the correspondence shall be given to the inmate.
N.J. Admin. Code § 10A:18-3.4.
The Assistant Commissioner of the Department of Corrections issued a memo to all Corrections administrators providing guidelines for the ...