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Conley v. New Jersey Dep't of Corrections

October 5, 2009

KEVIN CONLEY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2009

Before Judges Skillman and Gilroy.

Appellant Kevin Conley is an inmate of the New Jersey State Prison, Trenton. Appellant appeals from the May 16, 2008 final decision of the New Jersey Department of Corrections (DOC) denying his challenge to the agency's enforcement of its April 10, 2008 memorandum, which served as a reminder to prison inmates that the names of their attorneys must be added to their visitor lists before the attorneys will be permitted to schedule visits with them. We affirm.

On April 10, 2008, the prison administrator issued the following memorandum to the inmate population:

This memorandum serves as a reminder that in accordance with [N.J.A.C.] 10A:18-6.7 any attorney requesting to visit an inmate, must be added to your visit list prior to scheduling the visit, utilizing form 292-I. If the attorney is not added to your visit list prior to a schedule[d] visit, he/she will not be permitted to visit.

Please be advised that if your family hires an attorney on your behalf, it is the responsibility of your family to provide you with the attorney's information, so that you may add the attorney to your visit list utilizing form 292-I.

On May 1, 2008, appellant filed an Inmate Remedy System Form, contending that the memorandum violated N.J.A.C. 10A:18-6.7(a) and N.J.A.C. 10A:18-6.7(d). Appellant asserted that the memorandum made material changes to the administrative regulations governing inmates' visits by third-parties, contrary to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, violating the inmates' "Constitutional, Statutory and regulatory rights to counsel."

On May 8, 2008, the DOC denied appellant's challenge. On May 13, 2008, appellant filed an administrative appeal. On May 16, 2008, the DOC issued its final decision, denying appellant's challenge to the memorandum, advising that "this has been the [standard operating procedure] and is now being enforced. There is no violation [of the administrative regulations]."

On appeal, appellant argues that: 1) the memorandum constitutes a formal amendment to a regulation in violation of the APA; 2) the enforcement of the visitation policy violates the inmates' right to counsel in violation of the Federal and State Constitutions; 3) the visitation policy violates the inmates' right to petition government for redress by restricting their access to the courts; and 4) the visitation policy violates the inmates' rights to protection and defense of liberty guaranteed by the State Constitution.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res.

Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980).

We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without merit. R. 2:11-3(e)(1)(E). ...


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