On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
Tyrone Barnes is a prison inmate who has served approximately sixteen years of a lengthy sentence. He was found to have violated prohibited act.256, refusing to obey a staff member's order, N.J.A.C. 10A:4-4.1, based on conduct that allegedly occurred on October 8, 2008. Barnes filed this appeal, arguing, among other things, that there was insufficient evidence to support the finding and that he was denied due process.
Barnes filed his brief on the merits on March 27, 2009. Rather than timely file a brief, the Department of Corrections (DOC) filed a motion, on August 10, 2009, in which it represented that the DOC "has decided that a remand of the disciplinary charges is appropriate [because] the record is not clear whether Barnes was afforded the right to confrontation of adverse witnesses, his right to call witnesses on his behalf and the [DOC's] recognition of Barnes' request to take a polygraph examination." As a result, on September 15, 2009, we granted the DOC's motion and ordered that the remand proceedings be completed within 20 days.
The DOC refused to comply with our September 15, 2009 order. Consequently, Barnes moved for an order compelling DOC to conduct the remand proceedings. The only response to this motion was a letter dated November 23, 2009, in which a Deputy Attorney General represented to the court that he was "unable to respond to appellant's motion [due to] difficulty receiving information from my client... [because] [i]t appears that the [DOC] has lost/misplaced the records related to the hearing in which Mr. Barnes is appealing." Based on these assertions, the DOC sought "an extension to determine if the [DOC] will be able to locate the records," and represented that if the records could not be located, "the [DOC] will be dismissing appellant's charges." We assumed the DOC's good faith in this regard and, on December 1, 2009, granted that extension by ordering the DOC to comply with our prior order within 30 days or voluntarily dismiss the charges.
The DOC failed to comply with our December 1, 2009 order. It neither conducted the remand hearing nor dismissed the charges. As a result, on January 28, 2010, Barnes was once again compelled to seek enforcement of our prior orders. The Attorney General filed no response. We thus entered an order on March 8, 2010, in which we recited the sorry history of the DOC's failure to abide by the very orders it had sought and the impact of that contumacious conduct on Barnes's right to have his appeal heard; as we then said, the DOC has not conducted the remand proceedings and has failed ever since to adequately explain why it has not commenced the very proceeding that it asked -- approximately six months ago -- to conduct. Fundamental fairness requires that we restore the matter to the status quo ante. As a result, the DOC is barred from filing a brief on the merits of Barnes's appeal, and the clerk is directed to place the appeal on a calendar for disposition on the merits as soon as practicable.
Now -- following the DOC's deplorable conduct in seeking and obtaining a remand for the purpose of scheduling a hearing it apparently had no intention of ever conducting -- the matter is finally before this court for a ruling on the merits of Barnes's appeal. In light of the DOC's concession, contained in the Attorney General's August 10, 2009 motion, that the record fails to demonstrate Barnes was provided with all the process due him, we reverse the order under review and dismiss the disciplinary charges commenced against Barnes.