IN THE MATTER OF PROPOSED AMENDMENT TO N.J.A.C. 10A:9-5.5

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5555-08T25555-08T2

IN THE MATTER OF PROPOSED AMENDMENT

TO N.J.A.C. 10A:9-5.5

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Submitted May 19, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from the final agency decision of the Department of Corrections.

Clarence Haley, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent New Jersey Department of Corrections (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Clarence Haley, who is currently incarcerated in a community release program at The Harbor in Newark, appeals the administrative decision of respondent New Jersey Department of Corrections (DOC), rejecting his petition for rulemaking filed pursuant to N.J.S.A. 52:14B-4(f). We affirm.

Haley petitioned DOC for an amendment to its regulations with respect to the restoration of lost commutation credits. Specifically, he sought to have DOC add a new section to N.J.A.C. 10A:9-5.5 with the following wording: "(j) Any inmate charge free for more then five (5) years may seek from the ICC or a designated ad hoc committee for a restoration of lost commutation time." DOC rejected the proposal, in part because it would conflict with regulations that limit the ability of inmates to seek restoration of credits forfeited for certain types of offenses. Haley appeals that decision.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if the agency's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

Our review of the record leads us to the conclusion that DOC's reasons for rejecting the proposed rule amendment were not "inconsistent with its statutory mission" or "arbitrary, capricious, or unreasonable." Although the loss of credits may cause an inmate to serve longer than he or she might otherwise have served if the credits had not been lost, the loss itself simply does not increase the length of the sentence imposed by the court. Consequently, we reject Haley's contrary argument.

It is suggested in Haley's brief that DOC misinterpreted the breadth of his proposed amendment. While it is possible that Haley did not intend to seek a change that would cause all lost credits to be subject to restoration, we note that the proposal was not worded that narrowly. A narrower rule was not submitted to DOC and the agency did not have the opportunity to address it. We will not consider issues that were not first raised with the administrative agency.

Affirmed.

 

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A-5555-08T2

June 1, 2010