October 8, 2008
TIMOTHY CONKLIN, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Reisner and Sapp-Peterson.
In this prison discipline case, Timothy Conklin appeals from a final determination of the Department of Corrections (DOC) finding that Conklin committed Prohibited Act *.011 by possessing security threat group (STG) materials. See N.J.A.C. 10A:4-4.1 (prohibiting possession of STG materials). The materials were confiscated, and Conklin received fifteen days detention, 180 days loss of commutation time, and 180 days of administrative segregation. We reverse and remand for re-hearing.*fn1
Pursuant to DOC regulations, the Commissioner may designate certain groups as security threat groups, although only specially-trained DOC employees may identify inmates as members of such groups:
(a) Only the Commissioner or Deputy Commissioner shall be authorized to designate a group of inmates as a security threat group. Such designation shall be based upon reasonably sufficient evidence and information.
(b) Only the Intelligence Section of the Special Investigations Division shall be authorized to identify inmates as security threat group members and security threat group core members. Such identification shall be based upon reasonably sufficient evidence and information. [N.J.A.C. 10A:5-6.5.]
Pursuant to this regulation, on December 30, 1997, the DOC Commissioner designated the East Coast Aryan Brotherhood as a STG. On December 21, 2005, the Commissioner designated the State Prison Skinheads, or SPS, as a STG, because it was a subgroup of the East Coast Aryan Brotherhood.
On October 13, 2007, Corrections Officer Youchom confiscated literature from Conklin which the officer believed might constitute STG material. The cover page of the material, which is all that has been provided to us, was entitled "The Whole" at the top of the page, with a cross in the middle of the page, and the words "Sowilow Perthro Sowilow" at the bottom of the page. Officer Youchom forwarded the materials to the Special Investigations Division, Intelligence Section.
On October 18, 2007, Senior Investigator Matthew J. Clark, who had been trained to recognize STG materials, issued a report stating that based on his training and experience the material was related to the East Coast Aryan Brotherhood. As "justification" for his conclusion, Clark's report stated:
Use of the terms "Sowilow Pertho Sowilow" which in the runic alphabet is "SPS" which stands for "State Prison Skins[.]" The State Prison Skins are an identified Security Threat Group.
According to an investigation report prepared by investigator T. Ray, Conklin pled not guilty to the charge, and stated "that he is SPS and that they have nothing to do with East Coast Aryan Brotherhood." However, at his courtline hearing Conklin explained that the wording on the confiscated newsletter was not a reference to the East Coast Aryan Brotherhood:
It means divine lightning striking inspiration with nothing left to chance.
SPS means something with news letter. It is a recognized religion. It is not East Coast.
Conklin's inmate counsel substitute further explained that Reverend Wilson had given Conklin permission to have the material, and he asked for a postponement of the hearing. However, although Reverend Wilson was clearly named as someone with important knowledge, the adjudication report noted that the inmate "did not name witnesses." On October 22, 2007, the hearing officer found Conklin guilty based on the STG report issued by Clark.
In an appeal to the prison administrator dated October 23, 2007, Conklin asserted that SPS had not been properly designated as a STG, or if it had been designated, the list of STG's including SPS had not been provided to Conklin. He also asserted that "Rev. Wilcox*fn2 has a memo with a list of what we (Odinist) are allowed to have, including runes. The memo can also verify that Odinism is a recognized religion within the state prison system. Rev. Wilcox has been unavailable for consultation during the preparation of this appeal." In a decision issued on October 24, 2007, the Riverfront State Prison Administrator determined that "[t]he verification of the material being SPS is credible and is accepted." This appeal followed.
In reviewing the DOC decision, we will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). However, it is also fundamental that the agency's conclusions must derive from a hearing that accords the inmate due process, including the right to call witnesses. See Wolff v. McDonnell, 418 U.S. 539, 566-67, 94 S.Ct. 2963, 2979-80, 41 L.Ed. 2d 935 (1974); Avant v. Clifford, 67 N.J. 496, 529-31 (1975).
On this appeal, Conklin contends, as he did below, that the confiscated material was a newsletter, which he claims is "religious material of Odinism, a recognized religion in the New Jersey Prison System." He contends that the newsletter contained "runes," that the officer who accused him took the letters "SPS" out of context, and that "Sowelu Perthro Sowelu" is not a properly designated STG. In his appendix, Conklin has included a page denominated "The Runes" which lists, among others, Sowelu and Perth. According to this page, runes are associated with ancient magic rituals and "are typically used as an oracle, a means of finding guidance from the Higher Self."
Based on his contention that the materials were related to his religion of Odinism, Conklin contends that the DOC violated his First Amendment rights by failing to acknowledge a legitimate religious practice. In that connection, he argues that the prison authorities did not interview Reverend Wilcox, the individual whom Conklin claims approved his having the newsletter and who could verify its religious significance. He also contests that he did not ask to call witnesses, since the hearing officer's report indicates that he asked for a postponement and indicated that Reverend Wilcox had knowledge of relevant facts.
We appreciate the importance to the DOC of keeping security threat groups and their associated materials out of the prison system. See N.J.A.C. 10A:5-1.3. And we intimate no view as to whether the materials at issue here related to a STG. However, we are also mindful of the drastic consequences that may befall a prisoner who is found to belong to a STG or possesses STG materials. In this case, it may have a significant effect on the amount of time Conklin will spend in prison.
We are constrained to remand this matter for re-hearing for two reasons. First, we conclude that Conklin did ask, albeit perhaps not as clearly as he might have, to present information from Reverend Wilcox. Neither party has explained whether Reverend Wilcox is a prison chaplain, but Conklin, being in administrative segregation, was certainly in no position to contact the Reverend, while the investigating prison authorities could have attempted to do so. Conklin should have been given his requested postponement so that he could have called Reverend Wilcox as a witness. This lapse in due process is particularly troubling because the DOC, which is in possession of the twenty-one page newsletter, has only provided us with the first page, thus preventing us from fairly evaluating Conklin's contention that the first page of the materials has been taken out of context.
Moreover, although we do not question Investigator Clark's expertise in STG materials, his report is brief and conclusory. He does not, for example, explain why the use of words beginning with "SPS" necessarily renders the newsletter STG material. Unlike, for example, a gang sign which may involve distinctive hand gestures, words beginning with the letters "SPS" or even equivalent runes, could easily be innocuous. Clark does not explain why it is more likely than not that the use of the words "Sowilo Perthro Sowilo" is STG-related rather than related to Conklin's purported religious practices.
For all of these reasons, we are constrained to vacate the agency's determination and remand this matter to the DOC for re- hearing. Proceedings on remand, including issuance of a final decision, shall be concluded within thirty days. We emphasize that we express no view as to whether Conklin is guilty of the charged violation, only that he is entitled to a new hearing on the charge. We do not retain jurisdiction.
Reversed and remanded.