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Grimes v. New Jersey Department of Corrections

Superior Court of New Jersey, Appellate Division

December 5, 2017

EDWARD GRIMES, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

          Submitted May 31, 2017

         On appeal from New Jersey Department of Corrections.

          Edward Grimes, appellant pro se.

          Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

          Before Judges Messano, Suter, and Grall.

          PER CURIAM

         The New Jersey Department of Corrections (DOC) has informally adopted a policy that "[for] security reasons, " does not permit inmates to place phone calls to "cellular, business or non-traditional telephone service numbers" (calling policy).[1]As DOC acknowledges, the calling policy applies in all DOC's correctional facilities and "is not codified in statute or regulation."

         Edward Grimes is an inmate confined at the New Jersey State Prison (NJSP). His relatives live in other states and none have a phone other than a cell phone. After Grimes's several attempts to obtain an explanation for and change of the calling policy by invoking the inmate remedy process, N.J.A.C. 10A:1- 4.1, -4.5 to -4.6, DOC provided this final response:

[T]he [DOC] prohibits inmates from making calls to cellular telephones. This practice is in effect for a number of security reasons. Family members and friends of an inmate will be unable to accept telephone calls unless they have a functioning land line telephone. The [DOC] strongly encourages inmates to correspond with family and friends through letters in addition to telephone calls in an effort to maintain strong family ties.[2]
[Emphasis added.]

         Grimes appeals and challenges the calling policy and DOC's informal action establishing and implementing it. R. 2:2-3(a)(2). He contends the policy was not adopted in compliance with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31. Grimes also asserts violations of United States Constitution: failure to provide procedural protections required by the Due Process Clause; and violations of the Equal Protection Clause of the Fourteenth Amendment and the First Amendment, "applicable to the States through the Fourteenth Amendment, " Reed v. Town of Gilbert, __ U.S. __, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236, 245 (2015).

         We conclude the APA requires adoption of the calling policy in conformity with the rulemaking procedures of the APA, N.J.S.A. 52:14B-4 to -5, and remand to the Commissioner for commencement of that process.[3] We further conclude the record on appeal, even as supplemented by the parties with leave of court, is inadequate to permit proper review of his constitutional claims. See State v. Robinson, 200 N.J. 1, 20-21 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). We are, however, convinced that immediate invalidation of the calling policy would leave a void and create a sudden disruption detrimental to important interests of the inmates, DOC and the public. Accordingly, we exercise our discretion to keep the calling policy in place pending cure of the APA-violation by promulgation of a regulation in conformity with the APA. See Hampton v. Dep't Corr., 336 N.J.Super. 52 0, 530 (App. Div. 2001); Dep't of Corr. v. McNeil, 209 N.J.Super. 120, 125-26 (App. Div. 1986).

         I.

         Telephone calls are one of many modes of communication between inmates and their relatives and friends, which DOC authorizes, regulates and lists among the inmates' rights and privileges. N.J.A.C. 10A:8-3.5(b)(3)(iii); 10A:18-1.1(a). Other modes of communication include visits, correspondence, packages and publications. N.J.A.C. 10A:8-3.5(b)(3)(iii); 10A:18-1.1(a). In addition, since 2015, NJSP has allowed inmates to receive emails and photos sent by cell phone. DOC has made that possible with a kiosk system installed in several facilities, including NJSP. The service provider delays transmission and receipt for fifteen minutes ...


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