Submitted May 31, 2017
appeal from New Jersey Department of Corrections.
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).
Judges Messano, Suter, and Grall.
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).As DOC acknowledges, the calling policy
applies in all DOC's correctional facilities and "is
not codified in statute or regulation."
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
[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.
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).
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. 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).
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 ...