KEVIN CONLEY v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5341-07T35341-07T3

KEVIN CONLEY,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________

 

Submitted September 24, 2009 - Decided

Before Judges Skillman and Gilroy.

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

Kevin Conley, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

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). Nevertheless, we add the following comments.

Appellant does not challenge the validity of the existing administrative regulations governing the inmates' attorneys' visits with their respective clients at the prison. N.J.A.C. 10A:18-6.1 to -6.7. Appellant's primary argument is that the April 10, 2008 memorandum materially alters or amends those regulations. We disagree. The April 10, 2008 memorandum does not alter or amend the existing regulations governing attorneys' visits with inmates. The memorandum only serves as a reminder to the inmate population of the existing regulations, and of the DOC's intention to enforce those regulations.

Appellant also contends that the policy contained in the memorandum is unreasonable because its enforcement "will unquestionably create delays" in inmates' exercising their rights to counsel. Because there is no evidence that enforcement of existing regulations has resulted in denial of an inmate's right to counsel, we will not address the issue. See Crescent Pk. Tenant's Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971) (holding that New Jersey courts do "not render advisory opinions or function in the abstract"). Should, however, the DOC unreasonably deny an inmate's request to include an attorney on his or her visitor list, or unreasonably delay in acting upon such a request, judicial remedies are available to address such action or inaction.

Affirmed.

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A-5341-07T3

October 5, 2009