October 1, 2008
NORMAN JAMES, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections, 07-11-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Messano and Chambers.
Norman James appeals from the final agency decision of the Department of Corrections (DOC) that permanently revoked the visiting privileges of two individuals, Karen Jones and Ruth Williams, based upon a finding that James had used a prohibited cell phone in the prison and the subsequent investigation conducted by DOC's Special Investigations Division (SID). James contends the agency's action was arbitrary, capricious, and unreasonable because it violated various administrative regulations. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.
James is serving a thirty-year sentence for murder and robbery at Trenton State Prison. On July 21, 2005, during a search of his prison cell, DOC personnel found and confiscated a cell phone secreted in the false lid of a can. James was cited for various disciplinary infractions, was found guilty of violating N.J.A.C. 10A:4-4.1, (*.009--"Misuse . . . [of] electronic communication device"), and was sanctioned.
The matter was forwarded to SID for further investigation, and forensic examination revealed several phone numbers that had been called utilizing the cell phone. Two of the numbers were identified as belonging to Jones and Williams. Williams' number also appeared on James' "IPIN" list, i.e., a list of phone numbers he provided to DOC and which he was authorized to call. The investigation revealed that Williams had been called a total of 159 times from the cell phone, "however no calls were accepted." Jones' number was not on James' IPIN list, however, she was on his visitor list and had last visited him in October 2004.
The investigation continued for more than a year with attempts to contact Jones being unsuccessful because her phone number was disconnected. The investigators did, however, on October 30, 2006, contact Williams whose daughter had dated James years earlier. Williams told the investigators that she had not spoken to James since his incarceration, had not visited him, did not know he had a cell phone, and refused to provide the investigators with any further information regarding her daughter's whereabouts.
On November 1, 2006, Michelle R. Ricci, Associate Administrator of the facility, notified Jones by letter that she was "permanently banned from participating in the visit program at New Jersey State Prison," and an identical letter was sent to Williams on November 6, 2006, both of which were copied to James. On June 22, 2007, James wrote to Assistant Superintendent of the prison, Charles E. Warren, Jr., noting that his disciplinary infraction occurred four months prior to the November 16, 2006, memorandum DOC issued to all inmates advising that "an emergency rule adoption ha[d] been executed . . . to implement the Zero tolerance for Misuse or Possession of an Electronic Communication Device . . . Policy." Pursuant to the memorandum, "effective immediately" inmates "found guilty of an electronic communication device related prohibited act" would "have their contact visit privileges terminated," and would not be considered for any lower "custody status . . . than medium custody until . . . the contact visit privileges [were] reinstated." These penalties were in addition to the discipline otherwise meted out for a regulatory violation.
James asked Warren to reconsider the visitor ban. In a letter dated June 25, 2007, Warren responded that both Jones and Williams were not on James' "approved visit card," and "were banned by the residing Administrator[.]" He continued, "since you felt it not necessary to inform me as to why these two women were permanently banned from visiting here . . . I am not inclined to revisit this issue." James sent further correspondence, not in the record, and Warren responded again on July 11, 2007. Reiterating his earlier observations, Warren noted he would "not remove these two individuals from our permanently banned list. This matter has been addressed, and is now closed." James then timely filed this appeal.
James argues that 1) the governing regulations terminating visitation for various disciplinary infractions were not in affect at the time of his infraction; 2) the regulations do not permit the termination of visitation privileges for the specific infraction he committed; 3) DOC did not follow proper procedures in terminating the visitation privileges; and 4) even if the visitation privileges were properly terminated, the regulations provide for reinstatement, thus, a permanent ban is in violation of the regulations.
We review the labyrinth of administrative regulations that guide our decision as to each of these contentions. N.J.A.C. 10A:18-6.19, "Denial, termination or suspension of a visit," provides in pertinent part,
(a) An inmate's visiting privileges shall not be denied because of a violation of correctional facility regulations, other than those regulations specifically related to or concerned with visiting privileges, except in the case of a termination of contact visits sanction as established in N.J.A.C. 10A:4-5.1(c).
(b) A visit may be denied, terminated or suspended and a visiting privilege suspended under the following circumstances:
1. The visitor(s) is under the influence of drugs or alcohol;
2. Space is unavailable;
3. The visitor(s) refuses to submit to search procedures;
4. The visitor(s) refuses or fails to produce sufficient identification or falsifies identifying information;
5. The visit rules of the correctional facility are violated by the visitor, provided that such rules are posted;
6. Children are disturbing other persons in the visiting area;
7. Physical contact between the visitor and inmate which is in excess of N.J.A.C. 10A:18-6.16(d);
8. Any action that affects the ability of the staff to ensure the safe, secure and orderly operation of the correctional facility and the visiting room; or
9. A violation of the Zero Tolerance Drug/Alcohol Policy as defined in N.J.A.C. 10A:1-2.2.
(c) Except in the case of a termination of contact visits sanction as established in N.J.A.C. 10A:4-5.1(c), prior to the denial or termination of visiting privileges for circumstances listed in (b) above, less restrictive action should be instituted. Such action may include:
1. Warning the inmate and/or visitor of improper conduct; and/or
2. Transferring the visit to a non-contact visiting area. [N.J.A.C. 10A:18-6.19a.]
DOC concedes that in imposing the permanent ban on James' visitation privileges with Jones and Williams it did not rely on the "no tolerance" policy regarding the misuse of cell phones adopted after James was convicted of the *009 offense. Therefore, any issue as to the timing of DOC's adoption of the "no tolerance" policy is of no moment. Rather, DOC contends that regardless of the specific offense underlying James' disciplinary adjudication, the permanent ban was appropriate under N.J.A.C. 10A:18-6.19(b)(8), because James' conduct "affected the ability of the staff to ensure the safe, secure and orderly operation of the correctional facility and the visiting room."
James also argues that "[w]hen an individual is not approved as a visitor, notice of and reasons for the exclusion shall be given to the inmate who submitted the individual's name. The inmate may appeal the decision to the Administrator who shall respond, in writing, within 10 business days of receipt of the appeal." N.J.A.C. 10A:18-6.9(d). James argues that DOC never followed the process contained in the regulation. In this regard, DOC contends that the regulation only applies to prospective visitors, not visitors already on an inmate's authorized list, like Jones, or visitors whom the inmate never requested be placed on his authorized list, like Williams.
Lastly, James argues that "[a]n inmate may request the reinstatement of contact visit privileges that were terminated in accordance with N.J.A.C. 10A:4-5.1 and 12. After 365 days from the date the sanction was imposed, the inmate may forward a written request for reinstatement of contact visit privileges to the Administrator or designee." N.J.A.C. 10A:18-6.20(a) Thus, James contends, DOC's permanent ban upon visits from Jones or Williams was not authorized by regulation.*fn1
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).
Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. New Jersey Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). But, as we have more recently noted,
[D]eference 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. [Balagun v. New Jersey Dep't. of Corr., 361 N.J. Super. 199, 202-03 (App. Div. 2003)(citations omitted).]
We note that in this case, DOC never advised James why Jones and Williams were permanently banned from his visitors list. Thus, it was predictable that James believed they were banned as a result of his specific disciplinary infraction. Not until it filed its brief in this appeal did DOC cite N.J.A.C. 10A:18-6.19(b)(8) as the basis for its decision. Since the issue has not been squarely presented to us, and its resolution is not necessary for purposes of our decision, we decline consideration of whether such a procedure comports with due process or is otherwise fundamentally fair. See DeCamp v. Dep't. of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006).
In any event, we think it is clear that DOC never established any link between James' use of the contraband cell phone to call Williams and Jones, and some adverse affect upon "the ability of the staff to ensure the safe, secure and orderly operation of the correctional facility and the visiting room," N.J.A.C. 10A:18-6.19(b)(8), regarding visitation. Williams never responded to any of James' phone calls to her, never visited him, and never contacted him. DOC never established that the calls to Jones presented some threat to the ability to secure the facility, particularly since Jones had not visited James after 2004. Moreover, we think it is clear from the regulation's face that if DOC chose to impose a visitation sanction on this theory, it was required to take a "less restrictive action" than a total ban on visits. N.J.A.C. 10A:18-6.19(c). When read in conjunction with N.J.A.C. 10A:6-20, which permits the reinstatement of contact visits if they were terminated for specific disciplinary infractions, we think it is clear that the regulatory scheme envisions a suspension of contact visitation privileges, not permanent termination of the privileges, and the imposition of less-restrictive sanctions when available.
We conclude, therefore, that the final agency action must be reversed and we remand the matter to the DOC for further proceedings. James is permitted to request that Williams be added to his list of authorized guests, if he so chooses, and DOC shall evaluate the request in accordance with the applicable regulations, specifically, N.J.A.C. 10A:18-6.3. As to Jones, the permanent ban on her visitation privileges is vacated. We do not retain jurisdiction.
Reversed and remanded.