September 22, 2008
ABDEL SALEH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges Fisher and Grall.
In this appeal, we again consider the sufficiency of the proceedings that resulted in the Department of Correction's transfer of inmate Abdel Saleh to an out-of-state prison. Previously, we remanded for further development of the facts and the source of the evidence relied upon by the hearing officer when he concluded that Saleh was plotting with others to escape from New Jersey State Prison. As we directed, there was another hearing in which Saleh participated by video teleconferencing from an Illinois prison. The hearing officer again determined that there was a basis for the transfer, Saleh again appealed, and we again remand for additional proceedings.
A bit of history regarding the transfer of inmates and the limited extent to which such transfers may implicate federal constitutional values is warranted, as is the extent to which the courts of this State have recognized an inmate's due process rights.
In two noteworthy decisions, a divided Supreme Court concluded that neither an intrastate transfer, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed. 2d 451 (1976), nor an interstate transfer, Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed. 2d 813 (1983), caused the deprivation of a liberty interest that would trigger the requirements of due process. Despite the apparent clarity in those holdings, in a later decision, Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed. 2d 418 (1995), a five-member majority of the Court restructured the manner in which inmate rights in this setting should be considered. And, adding to an understanding of the parameters the Court has staked out in this area is its most recent decision in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed. 2d 174 (2005).
In Meachum v. Fano, the Court held that absent a statutory or customary mandate to the contrary, the Due Process Clause of the Fourteenth Amendment does not, alone, create a liberty interest in prisoners to be free from intrastate prison transfers. In reaching this conclusion, the divided Court rejected the argument that any change that negatively impacts the conditions of an inmate's confinement triggers due process protections, and concluded that, unless specifically required by state law, prison officials are not obligated to furnish an inmate with a hearing before ordering a transfer. In justifying its grant of such latitude to prison officials, the Court explained that given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison if, as is likely, the State has more than one correctional institution . . . .
The conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons. [Id. at 224, 96 S.Ct. at 2538, 49 L.Ed. 2d at 459.]
Later, when considering whether Meachum's view of what constitutes a liberty interest should be extended to an inmate's transfer to an out-of-state facility, the Court similarly held that "confinement in another state, unlike confinement in a mental institution,*fn1 is within the normal limits or range of custody which the conviction has authorized the state to impose." Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed. 2d 813 (1983). The majority in Olim rejected the dissenters' assertion that the inmate's transfer to an out-of-state facility*fn2 constituted "banishment" or "exile," an event long considered in English law and tradition to be "a unique and severe deprivation," id. at 252 n.1, 103 S.Ct. at 1749 n.1, 75 L.Ed. 2d at 825 n.1 (quoting United States v. Ju Toy, 198 U.S. 253, 269-70, 25 S.Ct. 644, 649, 49 L.Ed. 1040 (1905) (Brewer, J., dissenting)), reasoning instead that "[j]ust as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State," id. at 245, 103 S.Ct. at 1745, 75 L.Ed. 2d at 820.
In determining that an inmate has no liberty interest in remaining in a particular prison within a state, the Court appeared to have foreclosed any contentions that such transfers may violate federal due process principles. A later decision, however, revealed the misgivings of five members of the Court about the manner in which prisoner arguments were being adjudicated following Meachum and Olim.
The five-member majority in Sandin concluded that in the aftermath of Meachum and Olim, the lower courts had regrettably misinterpreted the Court's prior decisions by holding that a liberty interest could be found in state procedural regulations that would thereby trigger due process guarantees. The Court concluded that this methodology unnecessarily involved "federal courts in the day-to-day management of prisons" and caused the "squandering [of] judicial resources with little offsetting benefit to anyone." 515 U.S. at 482, 115 S.Ct. at 2299, 132 L.Ed. 2d at 429. In Sandin, Chief Justice Rehnquist explained how the lower courts had misread the Court's prior precedents.
First, the Sandin majority opinion observed that the Court had previously held, in its landmark decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed. 2d 935 (1974), that a prison system where inmates earned time credits for good behavior, which could be revoked by prison officials only for "flagrant or serious misconduct," id. at 545 n.5, 94 S.Ct. at 2969 n.5, 41 L.Ed. 2d at 944 n.5, created a liberty interest of "real substance," id. at 557, 94 S.Ct. at 2975, 41 L.Ed. 2d at 951, and warranted "minimum procedures necessary to reach a 'mutual accommodation between institutional needs and objectives and the provisions of the Constitution,'" Sandin, supra, 515 U.S. at 478, 115 S.Ct. at 2297, 132 L.Ed. 2d at 426 (quoting Wolff, supra, 418 U.S. at 556, 94 S.Ct. at 2975, 41 L.Ed. 2d at 951). This, the Sandin Court recognized, was followed by the Meachum decision, which, as we have already discussed, concluded that an intrastate prison transfer, even to a maximum security facility, was "within the normal limits" authorized by the inmate's criminal conviction. Id. at 478, 115 S.Ct. at 2297, 132 L.Ed. 2d at 426 (quoting Meachum, supra, 427 U.S. at 225, 96 S.Ct. at 2538, 49 L.Ed. 2d at 459). In reaching this conclusion, according to Sandin, the Meachum Court "distinguished Wolff by noting that there the protected liberty interest in good time credit had been created by state law," but that state law applicable to Meachum had not "stripped officials of the discretion to transfer prisoners to alternative facilities 'for whatever reason or for no reason at all.'" Id. at 478-79, 115 S.Ct. at 2297, 132 L.Ed. 2d at 426 (quoting Meachum, supra, 427 U.S. at 228, 96 S.Ct. at 2540, 49 L.Ed. 2d at 461).
The Court in Sandin next determined that because "dictum in Meachum distinguished Wolff by focusing on whether state action was mandatory or discretionary," id. at 479, 115 S.Ct. at 2298, 132 L.Ed. 2d at 426-27, later decisions, such as Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed. 2d 668 (1979) and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed. 2d 675 (1983), had adopted the following methodology:
In evaluating the claims of inmates who had been confined to administrative segregation, it first rejected the inmates' claim of a right to remain in the general population as protected by the Due Process Clause on the authority of Meachum, Montanye [v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed. 2d 466 (1976)], and Vitek. The Due Process Clause standing alone confers no liberty interest in freedom from state action taken "'within the sentence imposed.'" [The Court in Hewitt] then concluded that the transfer to less amenable quarters for non-punitive reasons was "ordinarily contemplated by a prison sentence." Examination of the possibility that the State had created a liberty interest by virtue of its prison regulations followed. Instead of looking to whether the State created an interest of "real substance" comparable to the good time credit scheme of Wolff, the Court asked whether the State had gone beyond issuing mere procedural guidelines and had used "language of an unmistakably mandatory character" such that the incursion on liberty would not occur "absent specified substantive predicates." Finding such mandatory directives in the regulations before it, the Court decided that the State had created a protected liberty interest.
It nevertheless, held, as it had in Greenholtz, that the full panoply of procedures conferred in Wolff were unnecessary to safeguard the inmates' interest and, if imposed, would undermine the prison's management objectives. [Id. at 480, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427 (some citations omitted).]
Chief Justice Rehnquist explained in Sandin that -- as this approach "took hold" -- inmates ceased to rely on a showing that they had suffered a "grievous loss" of liberty retained even after sentenced, and the Court stopped examining the nature of the interest with respect to state-created interests. Id. at 480, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427. The Chief Justice explained in Sandin that in a series of cases that followed, which included Olim v. Wakinekona, the Court "wrestled with the language of intricate, often rather routine prison guidelines to determine whether mandatory language and substantive predicates created an enforceable expectation that the State would produce a particular outcome with respect to the prisoner's conditions of confinement." Id. at 480-81, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427-28 (citations omitted). As a result, according to the majority in Sandin, the Court had "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges" by "shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation." Id. at 481, 115 S.Ct. at 2299, 132 L.Ed. 2d at 428. In this manner, courts drew negative implications by inferring from a regulation's mandatory directive, i.e., that a penalty or consequence "shall" be imposed upon a certain circumstance, that the absence of that circumstance conferred a benefit, which could not be removed or withheld without application of the principles of due process.
The Court recognized that the rise of this negative-implication jurisprudence might be a proper approach to construing a statute but concluded that
[i]t is a good deal less sensible in the case of a prison regulation primarily designed to guide correctional officials in the administration of a prison. Not only are such regulations not designed to confer rights on inmates, but the result of the negative implication jurisprudence is not to require the prison officials to follow the negative implication drawn from the regulation, but is instead to attach procedural protections that may be of quite a different nature. Here, for example, the Court of Appeals did not hold that a finding of guilt could not be made in the absence of substantial evidence. Instead, it held that the "liberty interest" created by the regulation entitled the inmate to the procedural protections set forth in Wolff. [Id. at 481-82, 115 S.Ct. at 2299, 132 L.Ed. 2d at 428.]
Finding that this approach created "disincentives for States to codify prison management procedures in the interest of uniform treatment," id. at 482, 115 S.Ct. at 2299, 132 L.Ed. 2d at 428, and had led to the unnecessary involvement of federal courts in the management of prisons, id. at 482, 115 S.Ct. at 2299, 132 L.Ed. 2d at 429, the Court held that "the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause," id. at 483, 115 S.Ct. at 2300, 132 L.Ed. 2d at 429, and that "[t]he time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum," id. at 483, 115 S.Ct. at 2230, 132 L.Ed. 2d at 429. And, although having held that the approach taken in Olim, as well as others, was "difficult to administer" and "produces anomalous results," the Court held that Olim's ultimate holding, which found no liberty interest impacted by an out-of-state transfer, did not have to be overruled. Id. at 483 n.5, 115 S.Ct. at 2300 n.5, 132 L.Ed. 2d at 429 n.5. In rejecting the approach employed by Olim and others, the Court in Sandin put in its stead a methodology that a change in a prisoner's conditions of confinement does not trigger the need for due process safeguards unless the change imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300, 132 L.Ed. 2d at 430. In applying this atypical-and-significant-hardship standard, the Sandin majority concluded that the inmate had no liberty interest impacted by a thirty-day assignment to segregated confinement.
The Court's structuring of a model upon which to determine the presence of a liberty interest cannot be truly understood, however, without a consideration of its most recent foray into such matters. In Wilkinson v. Austin, the only of these cases in which the Court was unanimous, the Court again recognized that "the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves 'in relation to the ordinary incidents of prison life.'" 545 U.S. at 223, 125 S.Ct. at 2394, 162 L.Ed. 2d at 190 (quoting Sandin, supra, 515 U.S. at 484, 115 S.Ct. at 2300, 132 L.Ed. 2d at 430). In Wilkinson, the Court observed, as it found in Sandin, that the lower courts had "not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system." Id. at 223, 125 S.Ct. at 2394, 162 L.Ed. 2d at 190. Unlike Sandin, the Court did not attempt to refine the matter further, but instead concluded that a classification of a prisoner for placement in Ohio's "Supermax" facility -- where "almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day" and placement in this situation is not for a limited period as in Sandin but is reviewed annually after an initial thirty-day review -- imposed "an atypical and significant hardship under any plausible baseline" and created a sufficient liberty interest as to trigger due process guarantees. Id. at 223-24, 125 S.Ct. at 2394-95, 162 L.Ed. 2d at 190.
Regardless of the limits of the federal constitution recognized by the Supreme Court of the United States in the cases discussed above, the individual states remain "free to follow another course, whether by statute, by rule or regulation, or by interpretation of their own constitutions." Meachum, supra, 427 U.S. at 229, 96 S.Ct. at 2540, 49 L.Ed. 2d at 461-62. In a decision rendered prior to Sandin, our Supreme Court canvassed the authorities that staked out the parameters of a prisoner's federal due process rights. See Jenkins v. Fauver, 108 N.J. 239, 246-51 (1987). We too have considered those parameters on a number of recent occasions in resolving prisoner claims. See Shabazz v. Dep't of Corr., 385 N.J. Super. 117, 123-25 (App. Div. 2006); Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248-50 (App. Div. 2006); Smith v. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001); Moore v. Dep't of Corr., 335 N.J. Super. 103, 109 (App. Div. 2000); Blyther v. Dep't of Corr., 322 N.J. Super. 56, 64-66 (App. Div. 1999). Although it may be difficult to entirely understand the precise limits of federal due process in the wake of Sandin and Wilkinson, there may very well be merit in the contention that our state constitution provides more extensive due process rights than does the federal constitution.*fn3
Indeed, although this court appears to have suggested that our state constitution should mirror the interpretation of the federal constitution adopted by the Supreme Court of the United States, see Szemple, supra, 384 N.J. Super. at 249 (interpreting Jenkins and this court's earlier cases as having "repeatedly expressed our adherence to . . . Sandin"), our Supreme Court has emphasized what the Court had stated in an earlier case: "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." Jenkins, supra, 108 N.J. at 246 (quoting Wolff v. McDonnell, supra, 418 U.S. at 555-56, 94 S.Ct. at 2974, 41 L.Ed. 2d at 950-51). In addition, whatever may be the precise limits of federal due process in prisoner cases following Sandin and Wilkinson, our Supreme Court has recognized the distinction between a dilution of prisoner rights based on "individualized rather than institutional factors," and held that, in the former instance, "the due-process clause guarantees that the prisoner receive a fair hearing." Jenkins, supra, 108 N.J. at 250-51. Whether this was our Supreme Court's view of the federal due process clause, as defined by the decisions of the United States Supreme Court, or its view of the reach of our state constitution, it appears certain that the Court's emphasis on fundamental fairness in Jenkins and later cases would strongly suggest that Saleh is entitled to a hearing that pays more than lip service to due process, and that this is likely an area in which the state constitution provides greater rights than does the federal constitution. Accord Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 239 (2008); Avant v. Clifford, 67 N.J. 496, 519 n.20 (1975). In applying the Jenkins Court's distinction between "individualized factors" and "institutional factors," 108 N.J. at 250-51, we are satisfied that Saleh's case falls within the former rubric. Because the transfer was ostensibly based on the claim that Saleh was involved in an alleged escape plan -- an individualized factor -- he was entitled to the guarantees of due process.
In any event, we need not further expand upon this brief general analysis of the process due to New Jersey inmates in this setting, or further pursue our odyssey through this uncertain legal terrain, because we are satisfied that the existing administrative process created in response to the Legislature's adoption of the Interstate Corrections Compact, N.J.S.A. 30:7C-1 to -12, was not adhered to and that a remand is required for additional proceedings and factfinding.
The regulations adopted to implement the Interstate Corrections Compact provide the skeletal requirements for the hearing to which Saleh was entitled. See N.J.A.C. 10A:10-3.1 to -3.19. We previously alluded to this procedural framework when we found that Saleh's former cellmate was deprived of adequate notice of the similar charges upon which his out-of-state transfer was based. Sheika v. Dep't of Corr., 395 N.J. Super. 266 (App. Div. 2007).
N.J.A.C. 10A:10-3.4(d) describes the five types of inmates who may be transferred to an out-of-state correctional facility as those:
1. Who are bona fide residents of the prospective receiving state to which transfer is desired;
2. Whose behavior constitutes a threat to the safety, security or orderly operation of any New Jersey correctional facility;
3. Whose continued presence in any New Jersey correctional facility poses a threat to themselves;
4. Who can demonstrate a substantial and bona fide reason for being transferred to another state; or
5. Who are residents of New Jersey and meet the classification and custody criteria of out-of-State correctional facilities where bed space is offered for lease or per diem costs by a state which is a state compact member of the Interstate Corrections Compact [and who meet other conditions not relevant here . . .].
Restating somewhat the criteria set forth in the above-quoted regulation, N.J.A.C. 10A:10-3.6 sets forth eight reasons for the ordering of an interstate transfer, namely: (1) when the proposed transfer is to the inmate's home state; (2) to place the inmate in another state with special facilities for treating drug or alcohol abuse, mental or emotional illnesses, or other medical conditions; (3) to avoid overcrowding; (4) to provide temporary housing "at times of crisis"; (5) to comply with a court order; (6) to provide for "the care and custody of security risk inmates"; (7) to provide protective custody; and (8) "[a]t the discretion of the Commissioner."
The initial notice served upon Saleh prior to his first hearing asserted that a transfer was being sought because of the "[p]resence of [a] crisis situation in which reduction of inmate population is essential," and gave this description of the alleged factual underpinnings for this contention:
Based on relevant information and the Special Investigations Division (SID) report on file[,] I/M Saleh has been identified as the leader, soliciting other inmates housed within [New Jersey State Prison] to aid and participate in a plan to escape. It is recommended that I/M Saleh be sent to a state with a low Muslim population to reduce the potential to use his knowledge of Islam to influence other Muslim inmates with negative actions. Transfer of I/M Saleh would aid in the overall safety and security of the [New Jersey Department of Corrections], as inmates who practice the Muslim religion are widely throughout the Correctional Facilities in New Jersey.
The notice indicated that no confidential information would be utilized at the hearing. The applicable regulations recognize that confidential information may be utilized and provides direction in that regard. N.J.A.C. 10A:10-3.9(c) indicates that "[c]onfidential materials may be withheld from the inmate, but the information shall be made part of a confidential correctional facility record" for the proceedings. The regulations also provide that, at least 24 hours prior to the hearing, an investigator "shall visit the inmate to obtain names of prospective witnesses," N.J.A.C. 10A:10-3.10(a), and "shall obtain written statements from the named witnesses and such statements shall be included in the Hearing Officer's final record for the proceedings," N.J.A.C. 10A:10-3.10(b). The inmate has the right to be present at the hearing in person or by video teleconferencing. N.J.A.C. 10A:10-3.11(a).
A hearing based on these allegations took place on March 14, 2006. Saleh appeared with a paralegal assigned to represent him. Based upon the SID report referred to in the notice, the hearing officer determined that the transfer should occur. His written decision stated that confidential material was "not utilized," but other aspects of the decision suggested otherwise:
Hearing officer relies on report from Investigator Dolce stating as a result of an (A-1) investigation inmate Saleh had planned, attempted an escape from the facility. Additionally, inmate Saleh maintained a significant influence upon other inmates of the Muslim faith and solicited the other inmates to acquire explosive/weapons as well as other contraband in an effort to facilitate said plan. In light of the large Muslim population within the State of New Jersey, that significant influence created a serious threat not only to the NJSP facility but the facilities throughout the State of New Jersey. Based on the report, inmate Saleh is referred for inter-state transfer.
On appeal, Saleh argued that he was deprived of due process and that the Department's determination violated his First Amendment rights. We remanded, indicating our concern about the nature of the information upon which the hearing officer relied:
Here, the investigation report upon which the transfer decision was based contains absolutely no indication of how the information with regard to inmate Saleh was gathered. There is not even a reference to it being received from previously reliable sources, and the individual who conducted the investigation did not testify; only his report was received. We should not be understood as saying that Saleh would be entitled to know the details of how the investigator came to the conclusion he reached. The record, however, must contain some independent indication of the reliability of the information contained in the report; there was none. [Saleh v. Dep't of Corr., No. A-3940-05T1 (App. Div. 2007) (slip opinion at 4-5).]
Following our remand, Saleh was served with a new notice, which cited a different reason for seeking interstate transfer*fn4 but adopted the same factual basis in language essentially identical to what was contained in the original notice -- that is, Saleh's alleged escape plans. This notice was served on Saleh at the Stateville Correction Center in Joliet, Illinois.*fn5
He participated in the hearing via video teleconferencing; a paralegal was also provided, but it appears that Saleh eventually declined paralegal assistance.*fn6 Saleh requested that statements be obtained from sixteen witnesses; only nine were obtained.
The hearing officer indicated in his written decision that he had relied upon the SID report, which had also formed the basis for the earlier decision. He also indicated that he relied upon a supplemental report prepared by Investigator Dolce as well as "Hearing Officer review of informants' credibility." Based on this information, the hearing officer recommended the transfer.
After a careful examination of the record on appeal, we conclude that (a) there was an insufficient development of the record following our prior remand, (b) Saleh was deprived of his right to the presentation of written statements from seven additional witnesses, and (c) a further consideration and explanation regarding Saleh's claim that he was transferred because of the exercise of his religious beliefs is warranted.
In examining the hearing officer's written decision and the record on appeal, we conclude there was only marginal improvement from the prior agency decision that we previously found wanting. In response to our mandate, the hearing officer amplified on the earlier decision, but the problem persists that the record does not reveal a studied analysis of the sufficiency or persuasiveness of the evidence and does not contain sufficient findings from which we can gauge whether the decision was arbitrary, capricious or unreasonable.
As we indicated in our prior opinion, the hearing officer's decision indicated that he relied on the SID report without ascertaining what the undisclosed information consisted of or whether it was reliable. Here, the hearing officer again relied on the same SID report, as well as a supplemental report from the same investigator. This supplemental report provides some additional data regarding the confidential information, which we quote at length in order to demonstrate the conclusory nature of the factual presentation in favor of transfer:
Informant #1 has provided credible information more than (12) times over a (16) year period. This informant was able to provide specific detail related to Saleh's involvement in a plan to escape from custody as well as his ability to influence other inmates. Informant #2 was used for the first time. However, the information when judged with known facts as well as information culled through the investigation was found to be credible.
Confidential informant #1 has provided credible information over a period of 16 years as follows:
(1) Information on location of weapons -- 4 times.
(2) Information on location/trafficking of CDS -- 4 times.
(3) Information on planned group demonstrations -- 2 times.
(4) Information on planned assault --1 time.
(5) Information on escape attempt -- 1 time.*fn7
In all these cases the information provided by this informant proved to be credible and/or led to an ongoing investigation. In addition, the informant provided the information in this case at great personal risk. If his identity was discovered he would be in great danger in the general prison population.
Based on the information provided in this case, the fact that he puts himself at risk by providing it along with his past record of reliability, leads this hearing officer to conclude that he is a credible witness. The information he provides will be relied on as evidence.
Confidential informant #2 has never been used before. However, the information he provided was consistent with information gleaned through the investigation. He, like informant #1, provided this information at great personal risk. If his identity were to be discovered he would be in great danger in the general prison population. The information this informant provided is considered to be credible by this hearing officer.[*fn8 ]
No other detail about the information provided by these informants was revealed. It is not even clear from the conclusions provided in this supplemental report to what extent the twelve pieces of information provided by Informant #1 over the past sixteen years actually proved to be credible. The supplemental report states, as quoted above, only that "[i]n all these cases the information provided by this informant proved to be credible and/or led to an ongoing investigation" (emphasis added). Information that was found credible in other matters could provide weight to the worth of whatever Informant #1 might provide, but it does not necessarily follow that information that merely "led to an ongoing investigation" provides a basis for finding Informant #1 credible. The use of "and/or," an inherently ambiguous conjunction/disjunction, to describe the twelve instances over sixteen years in which Informant #1 provided data renders it impossible to ascertain whether all the information was credible or only whether all the information merely led to "an ongoing investigation." Without an understanding, which the record does not provide, about what ultimately happened with any of those "ongoing investigations," the value of the conclusions drawn about Informant #1's credibility as an informant could not be intelligently evaluated by the hearing officer or meaningfully reviewed by us.
Equally troubling is the fact that the supplemental report provides little additional information regarding the factual basis for the transfer, and the hearing officer apparently took no steps to further inquire or produce for the record any details about the past confidential information and why it is that the informants' credibility was accepted. Indeed, we also recognize, as did the hearing officer, that the information regarding the alleged escape plan was not substantial:
Saleh is correct in stating he did not receive disciplinary charges relative to the information provided to the Special Investigations Division. At the point the plan was discovered, substantial evidence, the level of evidence needed to support disciplinary charges, did not exist.
The hearing officer, however, explained that the lack of substantial evidence was no impediment and concluded that transfer was appropriate:
The Department of Corrections would be remiss if action was not taken to avert a potentially dangerous and serious security problem. The fact that Saleh's six inmate witnesses testify that he is of good character does not convince this hearing officer that a serious security risk did not exist.
Credible information was received indicating that Saleh was planning a violent escape from the New Jersey State Prison. The fact that he wielded considerable influence within the inmate population would make it easier for Saleh to solicit participation in the disruption. Based on the above reasons in the interest of the security of the New Jersey Department of Corrections, Saleh is referred for interstate transfer.
As expressed in our decision in Saleh's prior appeal, we remain troubled by the record's lack of specific evidence and by the fact that the hearing officer drew only conclusions.
To summarize, the hearing officer's first decision, which we found inadequate, determined that the investigator's conclusions were credible. The second decision found the investigator's conclusions to be credible when he was only given the investigator's conclusions about the credibility of the confidential informants. We fail to see how the decision-making process has been improved beyond what we found insufficient in the earlier appeal. As far as we can tell from the record before us, the hearing officer never heard the content of what the informants provided and never heard their testimony from which he could judge their credibility. Nor does it appear that the hearing officer was provided with details regarding the results of the other investigations, which were fueled by Informant #1's prior information. Without the insight that a more searching inquiry into this underlying information might provide, little weight should given to the hearing officer's imprimatur on the investigator's view of the informant's credibility.
In making these observations, we are not insensitive to the Department's interest in having truly confidential information remain confidential. N.J.A.C. 10A:10-3.9(c) indicates that "[c]onfidential materials may be withheld from the inmate, but the information shall be made part of a confidential correctional facility record for the out-of-State transfer proceedings." Other regulations consistently permit withholding confidential information from the inmate while, at the same time, making the information available for subsequent review. See N.J.A.C. 10A:10-3.11(c) ("Witnesses statements shall be read to the inmate, unless disclosure would subject the witnesses or other persons to threat of harm and/or the statements or reports are marked confidential"); N.J.A.C. 10A:10-3.12(c) ("Confidential information shall be strictly safeguarded and appropriately marked for the inmate's classification file"). The fact that the supplemental report, which was the only new information provided to the hearing officer following our last remand, merely provides conclusions about confidential information without providing confidential information, generates doubt about whether the transfer was based upon a true concern about prison order or on the hearing officer's willingness to accept as true mere hearsay and conjecture. In short, the existing record does not provide us with any confidence in the conclusory finding that Saleh was involved in an escape plan; indeed, any degree of confidence in this finding is hampered by the hearing officer's concession that there was no substantial evidence to support a disciplinary proceeding on the same grounds. Had the hearing officer required specifics about the underlying information -- and he was so empowered, see N.J.A.C. 10A:10-3.11(c) ("Where the Hearing Officer determines that clarification is desirable, the Hearing Officer may call the witnesses to appear in-person or through [video teleconferencing]") -- that clarifying information could have been included for our consideration even if circumstances required that it remain unavailable to the inmate.
In short, the existing record not only calls into question the sufficiency of the hearing officer's factual determination but defies appellate review. We have been presented with little more than conclusions about the worth of other conclusions. Until further detail of the alleged escape plan and the worth and persuasiveness of the confidential information finds its way into an appellate record, whether in the form of a confidential appendix or not, we remain foreclosed from fulfilling our role in the process of determining whether the decision to transfer was arbitrary, capricious or unreasonable. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).*fn9
Saleh has also argued that his request for statements from certain witnesses was not honored. We agree.
The process provided in the regulations indicates that no later than 24 hours before the hearing, an investigator is required to "visit the inmate to obtain names of prospective witnesses." N.J.A.C. 10A:10-3.10(a). Following that,
The investigator shall obtain written statements from the named witnesses and such statements shall be included in the Hearing Officer's final record of the proceedings. [N.J.A.C. 10A:10-3.10(b) (emphasis added).]
The only stated limitation to the inmate's right to present written witness statements is the hearing officer's "discretion to limit the number of written statements obtained to avoid the collection of evidence which is merely repetitive or is not necessary for an adequate understanding of the case." N.J.A.C. 10A:10-3.10(c).
Saleh requested that statements be obtained from sixteen individuals; the investigator only obtained statements from nine. As suggested by the record, and as conceded by the Department in its brief, statements were not obtained from the other seven individuals, not for any of the reasons set forth in N.J.A.C. 10A:10-3.10(c), but because those individuals were no longer employed by the Department. The Department asserts in a footnote to its brief that N.J.A.C. 10A:4-9.13(a)(7) provides support for its decision not to obtain statements from the other individuals requested by Saleh. That regulation, which applies to prison disciplinary matters, provides exceptions to the right of an inmate or counsel substitute in disciplinary matters to "call and question in-person a fact witness(es)." It does not relate or logically pertain to the obtaining of written statements from witnesses. We find the Department's argument that the authority contained in N.J.A.C. 10A:4-9.13(a) should be transplanted to a hearing for a nonconsensual transfer to be without sufficient merit to warrant a further discussion in this opinion. R. 2:11-3(e)(1)(E). We, thus, conclude that Saleh was deprived of the right to rely upon written statements regardless of the status of the witnesses' employment with the Department. Indeed, considering that Saleh was hampered because he could participate only through video teleconferencing from Illinois, and was afforded no right to counsel, greater leeway should have been allowed for his factual presentation. In short, the remand proceedings should be conducted with an understanding that the fact that an inmate may possess limited procedural rights is not an excuse for rendering those few rights meaningless.
We lastly observe that Saleh has maintained that the transfer was ordered because of the exercise of his First Amendment religious rights. The issues warrants further analysis by the hearing officer than has heretofore occurred.
There is no question that Saleh's religious activities have played a role in the decision, as the hearing officer expressly acknowledged:
Credible information was received indicating that Saleh was planning a violent escape from New Jersey State Prison. The fact that he wielded considerable influence within the inmate population would make it easier for Saleh to solicit participation in the disruption. Based on the above reasons in the interest of security of the New Jersey Department of Corrections, Saleh is referred for interstate transfer.
We recognize there is a fine line to be drawn in this case. Although a transfer may not be based solely upon an inmate's religious beliefs or the exercise of those beliefs, we do not question the Department's authority to effect a transfer if an inmate has advocated or participated in escape plans through the use of ostensibly religious communications. That is, inmates "do not forfeit all constitutional protections by reason of their conviction and confinement in prison," Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed. 2d 447, 472 (1979), and "clearly retain protections afforded by the First Amendment," but those rights may be limited by the need for institutional security, O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49, 107 S.Ct. 2400, 2404-05, 96 L.Ed. 2d 282, 289-90 (1987). See also Allah v. Dep't of Corr., 326 N.J. Super. 543, 547-49 (App. Div. 1999). In remanding for further proceedings, we direct that the hearing officer give further consideration to Saleh's First Amendment argument, permit further evidence in this regard if offered, and describe his determination on this point in greater detail, if he again recommends a transfer.
Remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.