CHARLES HAMILTON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHARLES HAMILTON,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

_______________________________

November 22, 2016

Submitted September 29, 2016 - Decided

Before Judges Lihotz and O'Connor.

On appeal from the New Jersey Department of Corrections.

Charles Hamilton, appellant pro se.

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

PER CURIAM

Appellant Charles Hamilton, an inmate held in East Jersey State Prison, appeals from a November 4, 2015 decision denying his request to dissolve the visitation ban of Tania Peppers, a person he placed on his visiting list.1 Appellant suggests this imposed sanction was arbitrary and capricious.

Respondent, the New Jersey Department of Corrections, maintains the visiting ban did not result from appellant's violation of prison rules, rather, respondent banned Peppers' participation in visitation at all New Jersey State Prisons when she became the subject of a Department of Corrections Special Investigations Division (SID) investigation. Therefore, only Peppers may seek the ban's removal. Further, its decision denying appellant's request to remove the ban was not arbitrary, capricious or unreasonable.

Following our review, we conclude respondent has failed to provide the factual and legal support for its determination. We remand the matter for further proceedings, including a complete statement of reasons for its final determination to deny appellant's grievance.

These facts are taken from the record. Appellant identified Peppers as his children's mother. On April 13, 2010, Peppers was notified she was temporarily banned from participating in the visitaton program and advised to call SID for further information.

Respondent reveals in its brief, SID's investigation commenced after the seizure of a cellular telephone, possessed by a different inmate contrary to institutional regulations. SID learned this inmate was engaging in money laundering and funds were transmitted to Peppers' sister, with whom she lived. Peppers' sister was not listed as a visitor of any inmate.

In a February 16, 2012 letter in response to appellant's inquiry regarding lifting the ban, a Department official advised the matter remained open because Peppers had not responded to SID's request for an interview. Peppers eventually notified SID and scheduled an interview for June 6, 2012. However, she declined to answer questions after Miranda2 warnings were issued and she was requested to sign a Miranda form.

Appellant filed an inmate grievance on September 9, 2015, requesting Peppers' visitation ban be removed. A second request was filed on October 24, 2015. Appellant replied "Peppers will remain on the banned list based on her refusal to cooperate with the SID unit. If [she] is willing to be interviewed by SID, please advise." Respondent filed an inmate grievance with SID on November 8, 2015, suggesting Peppers was now willing to be interviewed. The response from SID stated: "This SID office did not request an interview with her."

The record contains an undated and unsigned letter purportedly from Peppers to Commissioner, Gary M. Lanigan, asking for assistance to resolve "this issue" following her termination of the meeting with SID. On November 10, 2015, appellant filed another inmate grievance form, repeating his request to restore Peppers' participation in the visitation program. The response, from which the appeal is taken, stated "at this time . . . the ban will remain in effect for Ms. Peppers. You can resubmit in one year from today . . . for another review for window visits only."

Appellant sought an administrative appeal. On December 3, 2015, respondent's written decision noted the arguments appellant raised applied to inmates subject to a visitation ban as a disciplinary measure. However, N.J.A.C. 10A:18-6.19 authorized respondent to ban any visitor for 365 days. This appeal followed.

Although the scope of our review of a final agency action "is limited, we cannot be relegated to a mere rubber-stamp of agency action." Williams v. Dep't of Corrs., 330 N.J. Super. 197, 204 (App. Div. 2000). Rather, we engage in a careful and principled examination of the agency's findings. Id. at 204. Mere doubts as to the wisdom of the decision or the fact the record may support more than one outcome does not warrant this court's intrusion into the agency's determinations. In re Taylor, 158 N.J. 644, 657 (1999) (stating if agency decision is supported by "sufficient credible evidence in the record[,]" a reviewing court must uphold the decision "even if [it] believes that it would have reached a different result" (citations omitted)). Consequently, our task is to ensure the agency's determination is based on substantial evidence and supported by the record. In re Carter, 191 N.J. 474, 483 (2007).

However, we will reverse an administrative decision "if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citation omitted). Substantial evidence is evidence that "furnish[es] a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). Substantial evidence has also been defined as evidence that "a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corrs., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). The burden rests on the challenging party to show the administrative agency decision was arbitrary, capricious, or unreasonable. McGowan, supra, 347 N.J. Super. at 563.

Prior to addressing appellant's challenge, we consider respondent's assertion the appeal must be dismissed for lack of standing. "'The issue of standing is a matter of law,' to which we must exercise de novo review." In re Project Authorization Under New Jersey Register of Historic Places Act, 408 N.J. Super. 540, 555 (App. Div. 2009) (quoting People for Open Gov't v. Roberts, 397 N.J. Super 502, 508 (App. Div. 2008)).

Standing "involves a threshold determination which governs the ability of a party to initiate and maintain an action before the court." Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001). New Jersey courts take a liberal approach to standing. N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 415 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed, 152 N.J. 361 (1998). Our courts confer standing in those cases where the party's concern with the subject matter of litigation evidences "a sufficient stake and real adverseness." CrescentParkTenantsAss'nv. RealtyEquitiesCorp., 58 N.J. 98, 107 (1971). In making that determination, we give "due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of 'just and expeditious determinations on the ultimate merits.'" Id. at 107-08 (quoting Tumarkin v. Friedman, 17 N.J. Super. 20, 21 (App. Div. 1951), certif. denied, 9 N.J. 287 (1952)).

We reject respondent's request to dismiss the appeal. Appellant filed a grievance on September 6, 2015, seeking some explanation for the continued ban. Respondent's November 4, 2015 reply indicated the ban was still in effect, but stated, "If Ms. Peppers is willing to be interviewed by SID please advise." Appellant answered affirmatively and a letter, purportedly from Peppers sent sometime in 2015, followed these instructions and sought the ban be vacated. In response to appellant's submissions, his request was denied and the ban continued as imposed for another year. Under our expanded view of standing, appellant may challenge what he perceives is a change of position to his detriment.

Respondent points out the visitation ban was not a disciplinary consequence following appellant's actions. The record shows Peppers' visits were barred because she did not comply with the SID interview in 2012.

The authority to impose a ban on any individual who seeks to visit those incarcerated is found at N.J.A.C. 10A:18-6.3(c), which states

Persons determined, by substantial evidence, to have a harmful influence upon the inmate or to constitute a threat to the security of the correctional facility shall be banned from visiting an inmate committed to the custody of the Department of Corrections for a minimum of 365 days and the visitor shall be required to apply in writing to the Administrator for approval/disapproval of the reinstatement of visit privileges.

Until the prospective visitor seeks reinstatement of visiting privileges in writing, as required by this provision, regulations state "[a] visit may be denied, terminated or suspended . . . ." N.J.A.C. 10A:18-6.19(b)(7).

Respondent apparently accepted appellant's November 10, 2015 request, submitted on Peppers' behalf, conveying her willingness to be interviewed, which respondent had advised was the first step in removing the ban. He was thereafter informed SID did not request Peppers' interview. This was followed by respondent's determination advising the matter was under review and the ban would remain in place for another year, a decision unaccompanied by factual explanation.

An administrative agency "'must set forth basic findings of fact, supported by the evidence and supporting'" its determination "'for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result is sufficiently and soundly grounded or derives from arbitrary, capricious or extra-legal considerations.'" In re Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 172 (1990) (quoting In re Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960)). "The requirement of findings is far from a technicality and is a matter of substance. It is a fundamental of fair play that an administrative judgment express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." N.J. Bell Tel. Co. v. Comm. Workers of Am., 5 N.J. 354, 375 (1950) (internal citation omitted).

The record does not allow us to ascertain the factual basis upon which appellant's grievance was denied and the continued visitation suspension imposed as stated in respondent's November 16, 2015 and December 3, 2015 determinations. Assuming the initial 2010 visitation ban was premised on N.J.A.C. 10A:18-6.3(c), and upheld on account of Peppers' refusal to respond to the SID's questions at the 2012 interview, respondent subsequently wrote to appellant on November 4, 2015, stating it solicited Peppers' SID cooperation. Inexplicitly, SID responded to the request stating "no interview was sought." One might interpret SID's terse statement as its determination it no longer needed Peppers' interview prior to lifting the visitation ban. Yet, respondent denied appellant's request for reinstatement of Peppers' visitation privileges.

Hampering our review is the fact the November 16, 2015 denial of appellant's request is unaccompanied by findings of fact or conclusions supporting that determination. We conclude the agency's decision is insufficient because it lacks a "reasoned explanation based on specific findings of basic facts," which is essential. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989). "When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency." Ciba-Geigy Corp., supra, 120 N.J. at 173.

Accordingly, the November 16, 2015 and December 3, 2015 determinations are vacated and the matter remanded for complete factual findings, which support the final agency determination of appellant's grievance.

Remanded for further proceedings consistent with this opinion.

1 Although it is not clear whether the November 4, 2015 decision denying Peppers' visits was subject to additional administrative review, the State does not contend the appeal is not from a final agency decision. See R. 2:2-3 ("[A]ppeals may be taken . . . to review final decisions or actions of any state administrative agency or officer.").

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).