September 11, 2009
ANTHONY BOONE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2009
Before Judges Payne and Waugh.
Anthony Boone, sentenced on November 22, 1991 to life in prison for murder,*fn1 appeals from his transfer, on September 25, 2007, from New Jersey State Prison to East Jersey State Prison*fn2 and from the December 10, 2008 determination of the Classification Committee that he remain in medium custody and that he be assigned to "any housing." East Jersey State Prison, apparently unlike other state prisons, houses some of its prisoners in dormitory-style surroundings. Boone objects to this practice, preferring to be housed in a single-person cell, as he was housed while in maximum custody status at New Jersey State Prison. He alleges, among other things, that he poses a danger to other prisoners.*fn3
On appeal, Boone presents multiple arguments, as follows:
EAST JERSEY STATE PRISON CANNOT JUST IMPLEMENT RULES, REGULATIONS AND POLICIES THAT VIOLATE THE NEW JERSEY ADMINISTRATIVE CODE AS WELL AS THE ADMINISTRATIVE PROCEDUR[E] ACT.
THE DEPARTMENT HA[S] ILLEGALLY IMPLEMENTED RULES AND REGULATIONS THAT CLEARLY VIOLATE THE REQUIREMENT[S] OF THE ADMINISTRATIVE PROCEDURE ACT AND SERVE TO VIOLATE DUE PROCESS REQUIRING INTERVENTION PURSUANT TO N.J.S.A. 52:14B-1 TO -12.
a. Requirement[s] of the Administrative Procedure Act, Generally.
b. Requirement[s] For Re-Publication Providing Ample Notice When Substantive Changes To Initial Proposal Occur, This Court's Holding In Matter of Adoption of Regulations, N.J.A.C. 7:27-23, and Matter of Adoption of Amendments to N.J.A.C. 7:27-16.
c. Criteria For Determination As To Whether Agency Action Constitutes Rule-Making Mandating APA Compliance As Defined By Our Supreme Court In Geo. Harms Constr. Co. v. N.J. Turnpike Auth., Doe v. Poritz, and State v. Garthe; and This Court In Del Rossi v. Dept. Human Serv.
d. Requirement of the APA Noted In re N.J. Medical Malpractice Recovery Fund Surcharge, N.J.A.C. 11:18.
e. Non-Compliance With Emergent Procedures Regarding Imminent Peril Mandated By N.J.S.A. 52:14B-4(a)(4)(d) and N.J.A.C. 1:30-4.3 and 4.5 and This Court's Ruling In Del. Bay Waterman's Ass'n. v. Dept. of Env. Protec.
f. Address To Department Of Corrections Rule-Making Had By The Supreme Court In Jenkins v. Fauver, and Matter Of Rules Adoption and This Court in Lumumba v. Morton.
THE ADMINISTRATION AND THE CLASSIFICATION COMMITTEE WERE AT THE PRISON KNOWINGLY, PURPOSELY, INTENTIONALLY, WILFULLY AND MALICIOUSLY IMPLEMENTED ILLEGAL RULES AND REGULATIONS WHICH DENIED PRISONERS OF THEIR DUE PROCESS RIGHTS.
THE APPELLANT CLEARLY MEETS ALL THE REQUIREMENTS FOR A STAY PENDING APPEAL IS MERITORIOUS.
A) APPELLANT AND ENTIRE GENERAL PRISON POPULATION WILL BE IRREPARABLY HARMED IF THE STAY IS NOT GRANTED.
B) APPELLANT HA[S] A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS.
C) NO OTHER INTERESTED PARTIES WOULD BE HARMED IF RELIEF IS GRANTED.
D) IT IS IN THE PUBLIC INTERES TO GRANT THE REQUESTED RELIEF.
We preface our analysis with the conclusion that the discretionary transfer of Boone from New Jersey State Prison to East Jersey State Prison did not infringe on any protected liberty interest. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed. 2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed. 2d 466 (1976); Jenkins v. Fauver, 108 N.J. 239, 247, 249-50 (1987); Smith v. Dept. of Corr., 346 N.J. Super. 24, 29-30 (App. Div. 2001); see also N.J.A.C. 10A:9-7.1 to -7.6 (governing transfers).
Further, we have been offered no evidence that the Classification Committee abused its discretion in December 2008 by continuing Boone's custody status at the medium level; a decision that appears to have been based upon the contents of a psychological report that has not been made a part of the record on appeal. Smith, supra, 346 N.J. Super. at 32; N.J.A.C. 10A:9- 4.5 (discretion of Classification Committee).
Boone's main argument concerns his assignment to "any housing," including a dormitory setting. The principles set forth in the cases that we have cited previously provide solid support for our conclusion that Boone has no more liberty interest in his housing arrangements than he has in his assignment to a particular prison or custody status.
Boone argues that the rules adopted at East Jersey State Prison governing housing are invalid, because they were not promulgated pursuant to the procedures set forth in the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15.
However, we do not regard agency action regarding housing in a single prison within the jurisdiction of the Department of Corrections to have the general applicability or to encompass the type of broad policy issue that would require formal administrative rulemaking. Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 330 (1984). Indeed, this form of internal management appears to be specifically exempted from the definition of "administrative rule" set forth in the Administrative Procedure Act. N.J.S.A. 52:14B-2(e). Housing within a prison is one of those matters as to which flexibility is required, since it is dependent on the design of the institution, the size of the prison population, its tendency to violence, and other concerns.
Nonetheless, our review of the record reveals what appears to be an inconsistency between rules and procedures implemented by the Prison. The Dorm Classification Chart supplied by the State indicates that "[i]nmates serving sentences in EXCESS OF 10 YEARS cannot be classified to an 'ANY HOUSING STATUS OR DORM' unless they are minimum eligible and meet the requirements for full minimum." Boone, who is serving a sentence in excess of ten years had not met the requirements for full minimum status.
Hence, the chart suggests that he is ineligible for "any housing" status. It is also possible that Boone fits within the "no dorm" status of ND-15, which is listed variously as "excessive length of sentence (cannot lock near wall)" and "15 yr mm" - descriptions that are unclear to us and have not been discussed by the State.
Despite the foregoing, in a certification given by Assistant Prison Superintendent Steven Johnson in connection with this appeal, he states: "Boone was also assigned to 'Any Housing' status, which is given to any inmate at East Jersey State Prison who has completed fifty percent of their mandatory- minimum sentence." Because we are unable to reconcile these rules without further explanation from the State, we remand the matter, with instructions that further briefing be supplied by it on this apparent rules conflict. Additionally, we require specification of Boone's present housing, and a statement as to the likelihood that he will be housed in a multiple-bunk cell or a dormitory during the remainder of his prison term. Such remand shall be complete within forty-five days of the issuance of this opinion.
We decline to address Boone's remaining arguments, finding them to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).
Remanded. Jurisdiction is retained.