Massey v. Dept. of Corrections

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In the Circu it Court for A llegany Cou nty Case No. C-02-021277 IN THE COURT OF APPEALS OF MARYLAND No. 142 September Term, 2004 ______________________________________ RICHARD L. MASSEY, JR. v. SECRETARY, DEPARTM ENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Bell, C.J., Dissents and Co ncurs _______________________________________ Filed: November 21, 2005 The State De partmen t of P ublic Safety and Correctional Services (DPSCS) and the Division of Corre ction (DO C), a unit w ithin the Departm ent, have ad opted certa in directives that (1) create and define administrative offenses for w hich DOC inmates are subject to administrative discipline, (2) prescribe the kinds of discipline, including the revocation of earned diminution credits against the inmate s sentence, available upon a finding of guilt, (3) set forth the procedure for charging inmates with offenses, adjudicating their guilt or innocence of those offenses, and imposing discipline, and (4) establish procedures for receiving, considering, and adjudicating complaints made by inmates regarding policies, procedures, and conditions in the prison. The question before us is whether certain of those directives constitute regulations that must be adopted in conformance with the State Admin istrative Proce dure Ac t. We shall answer that question in the affirmative, and, because it is undisputed that they were not so adopted, we shall declare them ineffective. BACKGROUND Procedural Construct The State prison system is under the direction and control of DOC which, as noted, is a unit within DPSCS. Subject to the authority vested by law in the Secretary of DPSCS, the Commissioner of Correction is in charg e of D OC. See Maryland Code, § 3-203 of the Correctional Services Article (CS). CS §2-109(c) requires the Secretary to adopt regulations to govern the policies and management of correctional facilities in the Division of Correction in accordance with Title 10, Subtitle 1 of the State Government Article but excepts from that requirement a guideline pertaining to the routine internal management of correctional facilities in the Division. CS § 3-205 authorizes the Commissioner to adopt regulations for the operation and maintenance of the units in DOC and requires that the regulations shall provide for . . . the discipline and conduct of inmates, including the character of punishm ents for violations of discipline. T here is no ex emption in § 3-205 f rom the req uirements o f title 10, sub title 1 of th e State G overnm ent Art icle (SG ). SG, title 10, subtitle 1 (which comp rises §§ 10-101 throug h 10-117) is the part of the State Administrative Procedure Act dealing with the adoption of regulations. It applies to every unit in the Executive Branch of the State Government, unless otherwise expressly provided by law. SG § 10-102. Neither DOC nor DPSCS is exempted, so the subtitle applies to both the Department and the Division.1 The term regu lation is def ined in SG § 10-101(g)(1) as a statement, or amendment or repeal of a statement, that (1) has gene ral application and future effect, (2) is ad opted (i) to detail or carry out a law that the unit administers, (ii) govern the organization or proced ure of the unit, or (iii) govern practice before the unit; and (3) is in any form, including a 1 In an attempt to escape from the requirements of the APA, DPSCS sponsored a departmental bill in the 2005 Session of the General Assembly which would have amende d CS § 2 -109(c)(2) to provide tha t the requirem ent of com pliance w ith SG, title 10, sub title 1 did not app ly to the cla ssificatio n, discip line, or co nduct o f DO C inm ates. See HB 782 (2 005). The bill received an unfavorable repo rt by the House Judiciary Committee and therefore did not pass. -2- guideline, rule, standard, statement of interpretation, or statement of policy. Section 10101(g)(2) excludes from the definition, among other things not relevant here, a statement that . . . concerns only internal management of the unit [] and . . . does not affect directly the rights of the pub lic or the proced ures av ailable to the pub lic. SG, title 10, subtitle 1 imposes procedural requirements on the adoption of regulations. With certain exception s for eme rgency regula tions, it requires that the unit (1) submit a propose d regulation to the Attorn ey General o r unit couns el for appro val as to legality (§ 10-107), (2) submit the proposed regulation to the General Assembly s Joint Committee on Administrative, Executive, and Legislative Review (AELR Committee) at least 60 days prior to adoption (§§ 10-1 10, 10-112), (3) publish th e propose d regulation in the Maryland Register at least 45 days prior to adoption (§ 10-111), and (4) after adopting a regulation, submit the full text of the reg ulation to the Admin istrator of the Division of State Documents for publication in the Maryland Register and the Code of Maryland Regulations (COMAR) (§ 10-114). A regulation is not effective until each of those requirements has been met. SG § 10-117. Pursuant to their respective authority under CS §§ 2-109 and 3-205, the Secretary and the Commissioner have adopted a number of regulations in accordance with SG, title 10, subtitle 1; they appear in COMAR, title 12, subtitle 2. Most of the rules governing the operation of the State correctional facilities, however, and especially those dealing with inmates, are in the form of directives adopted either by the Secretary (DPSCSDs) or by the -3- Commissioner (DCDs) without any pretense of compliance with SG, title 10, subtitle 1. Those directives seven substantial volumes of them were promulgated to establish formal written policy and procedures relating to all aspects of correctional administration and operatio n. DCD 1-3. We are concerned principally with DPSCSD 105-4 and 105-5 and, to a lesser extent in this case, with DC D 185-001 through 185-40 3, which are applicable to all institutions within the Division. DPSCSD 105-5 does two things. First, in an appendix, the directive defines the kind of conduct that will subject inmates to discipline. Fifty-seven offenses are listed, divide d into five categories of seriousness. C ategory I offenses include suc h things as e ngaging in disruptive activities, committing acts of violence, and possessing weapons or other dangerous contraband. Category II of fenses m ostly involve ref usals by inma tes to participate in activities that result in their removal from certain p rograms. Category III offenses include gambling, theft, and the possession of certain somewhat less dangerous contraband. Category IV offenses include disobeying a direct lawful order, refusing to work, giving false information, making unauthorized phone calls, and possessing any other kind of contraband; and Category V offenses include such things as failing to display one s identification badge, engaging in horseplay, and failing to maintain personal cleanliness. DPSCSD 105-5 also prescribes a procedure for charging offenses. It requires a prompt investigation of co nduct that m ight constitute an offen se, preparatio n of a rule violation report containing certain information, review of the report by a supervisor, the -4- shift supervisor, and, if administrative segregation is recommended as a punishment, by the shift commander. Under DPSCSD 105-4, the shift supervisor , if convince d that there is o nly a Category IV or V violation, ma y prepare an incident rep ort rather tha n a rule violation report and offe r the inmate a n informa l disposition. A n Appe ndix to D PSCS D 105-4 lists the possible sanctions available for an informal disposition, ranging from a reprimand , to loss of certain privileg es, to cell restriction for up to o ne month . The inmate may accept the inform al dispo sition by sig ning th e notice or may re ject it and opt for a hearin g. If the inmate either is not offered an inform al disposition o r rejects one, h e or she is served with a formal Notice of Inmate Rule Violation and Disciplinary Hearing. DPSCSD 105-5 sets forth the procedu res for a he aring befo re a DO C hearing officer w hen an inm ate may be found to have waived a hearing, when charges may be dismissed on p reliminary review, the a utho rity of a hearing off icer to offer an inform al disposition, th e applicable standard of proof, consideration of an inmate s request for representation or for the attendance of witnesses, preliminary motions, requests for postponement, taking a plea to the charge, the kind of evidence that may be admitted, presentation of a defense, fact-finding and decision by the hearing officer, and imposition of a sanction. The directive also provides for an appeal to the warden, review by the warden, and the options available to the warden. DPSC SD 105 -4, in addition to providing for an initial offer of informal disposition, sets forth a matrix of punishmen ts for the various offense s, taking into account the catego ry of the offense, the inmate s prior rule-violation history, any aggravating and mitigating -5- circumstances invo lved in the instant v iolat ion, a nd th e inm ate s adju stme nt history. Sanctions may include segregation, cell restriction, revocation of good conduct and special project program credits (diminution credits), and loss of visitation and other privileges for various periods of time. Some of those penalties are mandatory for certain offenses. Revocation of diminution credits is expressly authorized by CS § 3-709(a) and will usually result in an increase in the inmate s period of incarceration.2 A finding of a violation, whatever the sanction, may also directly or indirectly affect an inmate s chance for parole or the sanction to be imposed in the event of any further violation. The DCD 185 series of directives deal with the processing of inmate complaints about prison policies, procedures, and conditions such things as medical services, access to courts, religious liberties, lost, damaged, stolen, or confiscated property, use of force, conditions affecting an inmate s health, safety, and welfare, and the administration of the Administrative Remedy Procedure. See DCD 185-002. It is not available to protest classification, parole, or adjustment (offen se) decision s but may be u sed to pursu e compla ints of form al or inf ormal r eprisals . Id. DCD 185-100 provides for three asp ects of the Administrative Remedy Procedure an informal resolution procedure, a formal complaint to the warden for investigation and 2 CS § 3-709(a) provides that, [i]f an inmate violates the applicable rules of discipline, the Division may revoke a portion or all of the diminution credits awarded under §§ 3-704 (go od cond uct) and 3-7 07 (special p rojects) of this s ubtitle accord ing to the natu re and f requen cy of the v iolation . -6- resolution at the headquarters level, and a formal appeal of an adverse decision by the warden to the Commissioner. Remedies available include a written change in the substance, interpre tation, or applica tion of a policy, rule , or proc edure. See Appendix 1 to DCD 185100. A formal complaint is initiated by the filing of a Request for Administrative Remedy on a form attached as an appendix to DCD 185-100. An administrative remedy coordinator is required to process all formal complaints, and investigators are respon sible for the tim ely and su fficien t comp letion of an inve stigation on eac h assign ed com plaint. The warden may dismiss a request upon determining that it is frivolous or malicious. DCD 185-002 limits the number of requests for administrative remedy that an inmate may file to five a month and authorizes the warden to administratively dismiss any request not determined to be an em ergency that is in excess of that limit. A decision by the warden may be appealed to the Commissioner. A final decision by the Commissioner exhausts the DOC Administrative Remed y Procedure . Further adm inistrative review lies with the In mate Grievance Office. The Inmate Grieva nce O ffice (IG O) is a s tatutory un it within DPS CS. See CS § 10202. After exhausting the Administrative Remedy Procedu re provided by DOC , an inmate who has a grievance against an official or employee of DO C may sub mit a complaint to IGO. If, afte r prelimin ary review, the IG O Exec utive Direc tor conclud es that the co mplaint is wholly lacking in merit on its face, the complaint may be dismissed without a hearing and without making specific findings of fact. CS § 10-207(b). Such an order constitutes the final -7- decision of the Secretary for pu rposes of judic ial review . Id. Absent such a conclusion, the complaint is referred to the Office of Administrative Hearings for a hearing before an Administrative Law Judge (ALJ) in conformance with the procedures set forth in CS § 10208. The ALJ may dismiss a complaint as wholly lacking in merit, and that, too, will constitute the final decision of the Secretary for judicial review purpo ses. CS § 10-209 (b)(1). Otherwise, the ALJ prepares a proposed order for review by the Secretary. CS § 10209(b)(2). The inm ate is entitled to se ek judicial rev iew from any final decis ion of the Secretary. CS § 10-210. Massey s Complaint On June 19, 2 002, appe llant Mass ey, then an inmate at the Western Correctional Institution in Cumberland, submitted a Request for Administrative Remedy to the warden of that institution. The handwritten request was as follows: Current Dept. of Public Safety and Correctional Services directives (DPSCSD s) pertaining to disciplinary rules, procedures and sanctions have been and remain adopted by [the] Commissioner of Correction, in violation of the Maryland Administrative Procedure Act (APA), State Government Ar ticle (SG), T itle 10, S ubtitle 1 . Said regu lations are un lawful, and I am currently being punished, i.e., serving additional prison time, as a result. (My complaint is singular the regulations are unlawful and v iolate my interest in fairness). I request prompt corrective action and any appropriate damages and atto rney fees , etc. in the event o f future litigation . (Emphasis add ed). -8- On or about June 24, the Institutional Coordinator, apparently acting for the warden, dismissed the request on the ground that Massey had exceeded the monthly limit of five requests. In accordance with DCD 185-100, Massey appealed to the Commissioner who, on July 1, 2002, dism issed the ap peal after co ncluding th at the Institution al Coordinator properly dismissed the complaint pursuant to DCD 185-205. We infer from that response that the Commissioner rejected the appeal because Massey had exceeded the five requests/m onth limit allow ed by tha t DCD . In accordance with CS § 10-206, M assey submitte d a grievan ce to IGO . He stated h is grievance to be that DCD 185-002, which restricts the number of administrative complaints, is both unconstitutional and ineffective per the Administrative Procedure Act (State Gov t Art., § 10-113). He made clear in Attachments that the basis of his complaint was that the directive that contained the five requests/month limitation had not been validly adopted. On August 27, 2002, the Executive Director administrativ ely dismissed the appeal as being on its face wholly lacking in merit. He did not base his rejection of the appeal on the five requests/m onth limitation, however, and, indeed, stated that it would not be necessary to address the procedural issue associated with the dismissal of your ARP [Request for Administrative Remedy] complaint because I am prepared to address the sub stantive issue. In that regard, he stated: Not only did your original ARP complaint fail to adequately set forth a specific complaint, but more importantly the general basis which you referred to w as erroneous. While the docume nts you men tioned ( e.g. disc iplinary ru les, etc) were -9- properly referred to as directive s , you later erron eously referred to them as regulations as falling under the Maryland Administrative Procedure Act. Directives and Regulations are two separa te and d istinct en tities. Clearly implicit in that ru ling is IGO s determination that the directives issued by the Secretary at least those applicable to Massey s complaint and grievance were not regulations as defined in the APA and did not need to be adopted as such. Massey then filed a petition for ju dicial review in the Circu it Court for A llegany Cou nty. He argued to that court that his complaint was specific, that he challenged the validity of directives that subjected him to increased punishment and restricted his access to the courts, that the directives qu alified as reg ulations that h ad to be adopted in accordance with the APA, and that they did not constitute guidelines as to routine internal management. The State s response was that the DPSCSD 105-4 and 105-5 concerned only internal management and did not affect directly the rights of the public or procedures available to the public, and that they therefore did not have to be adopted in conformance with SG, title 10, subtitle 1. After a hearing, at which Massey appeared (as he had througho ut) withou t counsel, the court, on March 10, 2003, entered an order affirming the IGO decision . No reasons w ere given. Massey then filed an application for leave to appeal to the Court of Special Appeals. That court eventually granted the application and transf erred the ca se to its regular d ocket, but, before argum ent, we granted certiorari on our own initiative to review the two issues raised in Massey s brief whether the directives relev ant to this case are s ubject to SG , title 10, subtitle 1, and whether the IGO should ha ve set the m atter in for hearing. We need not -10- address the second issue. DISCUSSION The Issue Before Us The first thing we need to do is determine more precisely what is before us. Massey filed a request for administrative remedy pursuant to the DCD 185 series. He was thus invoking a directive adopted by the Com missioner p ursuant to CS § 3-205. His complaint was that he had been subjected to discipline and had lost diminution credits pursuant to the substantive and proc edural prov isions of DPSC SD 105 -4 and 10 5-5, which he believed to be invalid, in part, at least, because they had not been adopted in conformance with the APA. His initial challenge, a s he mad e clear, was not to wh ether he w as guilty of an infraction that called for the discipline imposed but only to the Secretary s directives pursuant to which the matter w as adju dicated . Massey s complaint was dismissed by the Institutional Coordinator and ultimately by the warden solely because he had exceede d the five re quests/mo nth limit established in DCD 185-002. That was not the basis for the dismissal of his com plaint by the IGO, how ever. The IGO express ly did not reach the procedural impediment issue but instead ruled on the merits of Massey s initial request, holding that DPSCSD 105-4 and 105-5 were not regulations that needed to be adopted in conforma nce with the AP A and that they were therefo re valid a nd eff ective. -11- Judicial review in this instance is of the IG O decision, which was a summ ary dismissal and, under CS § 10-207(b)(2)(ii), constituted the final decision of the Secretary. See CS §10-210(b) ( The complainant is entitled to judicial review of the final decision of the Secreta ry under § 10-20 7(b)(2) (ii) . . . of this subtitle. ). The final decision of the Secretar y, in other words, wa s that DPSCS D 105-4 and 105-5 were not regulations that needed to be adopted in conformance with the APA. We are therefore n ot concerned here with the application or validity of the DCD 185 series, but only whether DPSCSD 105-4 and 105-5 are legally effective. The State does n ot contest th at DPSCSD 105-4 and 105-5 fall within the definition of regulation in SG § 10-101(g)(1), and clearly that is the case.3 They constitute statements that have g eneral app lication throu ghout all of the correctio nal institutions in DOC and apply to all inmates in those institutions; they have future effect; they were adopted by a unit to carry out laws that the unit administers; and they are in the form of rules, standa rds, state ments o f interp retation , and sta temen ts of po licy. The only defense posed by the State is that the Secretary is excused from complying with the procedural requirements of SG title 10, subtitle 1 because (1) the directives concern only internal management of the unit [and do] not affect directly the rights of the public or 3 It is important to note that we are not dealing here with all of the directives issued by the Se cretary, bu t only thos e applic able in th is case DPS CSD 105-4 and 10 5-5. W e do caution the Secretary and the Commissioner to review very carefully all of the directives that they have issued, however, and determine, at least from their perspective, whether, in light of this Opinion, they need to be adopted in the form of regulations. -12- the procedu res available to the public and therefore are excluded by SG § 10-101(g)(2) from the definition of regula tion, and (2 ) they constitute a guideline p ertaining to the routine internal management of c orrectional f acilities in the D ivision of C orrection a nd, even if deemed to be a regulation under SG § 10-101(g), they need not be adopted in conformance with S G, title 10 , subtitle 1 by virtue o f CS § 2-109 . As to both provisions, the State s pos ition is that the Secretary s directives govern how DOC maintains order and manages the inmate population, which are matters of internal management for which great flexibility is required. It refers, in that regard, to some of the more mundane provisions, such as how the correctional staff is to prepare notices of disciplinary infractions and the manner in which inmates may waive a hearing. Massey points out, of course, that the directives do a great deal more than that that they define both the substantive and procedural construct under which inmates may have their incarceration extended and thus affect Constitutionally-protected liberty interests. Both parties cite out-ofState cases to support their respective positions. Authority of the Secretary Before we address the particular arguments of the parties, we need to co nsider a more fundamental matter that bears directly on the validity, rather than merely the effectiveness, of the two directives. DPSCSD 105-4 and 105-5 are directives adopted by the Secretary, presuma bly pursuant to CS § 2-109(c). They are not directives adopted by the Commissioner -13- pursuant to CS §3-205. That is why, in clear contrast to the DCD 185 series and many other DCDs in the seven volumes of directives, they are denominated as DPSCSD (Department of Public Safety and Correctional Services Directives) rather than DCD (Division of Correction Directiv es). A preliminary question thus arises w hether, if DPSC SD 105-4 and 105-5 are, indeed, guidelines that pertain only to the routine internal management of correctional facilities in the Division of Correction, as the State so ardently contends, the Secreta ry had an y statutory au thority to ad opt them . CS § 2-1 09 states, in fu ll: (a) Office of Secretary. The Secretary shall adopt regulations for the offic e of t he Secre tary. (b) Review of regulations of units. (1) The S ecretary shall review reg ulations pro posed by a u nit in the De partment. (2) The Secretary may approve, disapprove, or revise regulations p roposed b y a unit in the D epartmen t. (c) Correctional facilities. (1) Exce pt as provid ed in paragraph (2) of this subsection, the Secretary shall adopt regulations to govern the policies and management of correctional facilities in the D ivision of Correction in accordance with Title 10, Subtitle 1 of the State Government Article. (2) Paragrap h (1) of this su bsection do es not apply to a guideline pertaining to the routine internal management of correct ional fa cilities in th e Divis ion of C orrectio n. In presenting its argument, the State necessarily assumes a rather limited construction of subsection (c)(2) that it simply means that regulations adopted by the Secretary pursuant to subsection (c)(1) that pertain to the routine internal management of DOC correctional -14- facilities need not comply with the regulation-making requirements of the APA. That is not the construction we perceive, however. Both the language of subsection (c)(2) and the immediate legislative history of that subsection, especially when read in harmony with CS § 3-205, lead rather to the conclusion that regulations that pertain only to the routine internal management of DOC facilities are to be adopted by the Commissioner and not by the Secretary. The Secretary has the power to approve, disapprove, or revise proposed regulations of the Commissioner, but there is no clear grant of authority to adopt internal man agem ent regulatio ns as regu latio ns of the S ecre tary. Subsection (c)(2) states tha t paragraph (1) does n ot apply to rou tine internal management guidelines. It is paragraph (1), however, that is the source of the Secretary s authority to adopt regulations for the management of DOC facilities in the first instance, and if that paragraph does not apply to routine intern al manag ement gu idelines, there w ould seem to be no authority for the Secretary to adopt such guidelines. That impediment is even more apparent from the legislative history of the provision. The Revisor s Note to CS § 2-109 states that it was derived without substantive change from former A rt. 41, § 4-104(b) and (h). Fo rmer § 4-104(b) made the Secretary responsible for promulgating regulations for h is office an d empow ered the Se cretary to approve, disapprove, or revise regulations of the various units in the Department. Section 4-104(h) was the direct predecessor of CS § 2-109(c). It contained three paragraphs: (1) [The Secretary] shall adopt regulations governing the policies and man agemen t of correctio nal facilities w ithin -15- [DOC ]. (2) Except as provided in paragraph (3) of this subsection, and notwithstanding the provisio ns of § 10 -101(e)(2)(i) o f the State Government Article, the regulations described in paragraph (1) of this subsection shall comply with Title 10, Subtitle 1 of the State Govern ment Ar ticle (Adm inistrative Procedu re Act Regulations). (3) The requirements of paragraphs (1) and (2) of this subsection do not apply to guidelines pertaining to the routine internal mana geme nt of co rrection al facilitie s within [DO C]. (Emphasis add ed). Section 4-104(h)(3 ) could no t be clearer: neither ¶ (1) nor ¶ (2) applied to routine internal manage ment guid elines. It was n ot just comp liance with the APA requireme nts subsection (h)(2) that was exempted; the authority conferred in subsection (h)(1) to adopt regulations also was inapplicable to routine internal management guidelines. All that the code revision of that sectio n did wa s to combine what had been paragraphs (h)(1) and (h)(2) into one paragraph § 2-109(c)(1) without any substantive change. There is nothing illogical about such a construction. The law gives the Commissioner control over the management of the prisons within DOC and specifically gives the Commissioner independent authority in CS § 3-205 (and its predecess or, Art. 27, § 6 76) to adopt regulations for the operation and maintenance of the facilities within DOC, including the discipline and conduct of inmates. Routine internal management is left to the -16- Commissioner and is no t to be mic ro-m anag ed by the S ecre tary. 4 Accord ingly, if the State is correct in its vigorous assertion that DPSCSD 105-4 and 105-5 are merely guidelines pertaining to the routine internal managem ent of the DO C correctional facilities, they are ultra vires and invalid for that reason. The fact is, however, that those directives are not merely guidelines pertaining to internal ma nagement, routine or o therwise. Both the nature and the history of those directives m ake that clear. Internal Management In 1970, eighty-two DOC inmates, after being transferred from medium and minimum security facilities to the segregated confinem ent unit at the Ma ryland Peniten tiary, filed suit in U.S. District Court, complaining about the procedures used to implement the transfer and 4 We are aware of CS § 2-113 which, with exceptions not relevant here, authorizes the Secreta ry to exercise a ny power, d uty, responsibility, or fu nction of a ny unit, unit head, or appointing officer in the Department. If the Legislature had not, in CS § 2109(c), dealt specifically with regulations concerning the routine internal management of DOC facilities and expressly withdrew the power from the Secretary to issue regulations of that k ind, § 2- 113 w ould m ost likely p ermit the Secreta ry to adop t such re gulation s. The question is one of legislative intent, and we have long followed the rule that, when there is a conflict between a general statute and one dealing specifically with the issue at hand, the specific statute controls. See Smack v. Dept. of H ealth, 378 Md. 298, 306, 835 A.2d 11 75, 1179 -80 (2003 ) and cases cited there. [ W]here th e statute to be c onstrued is a part of an entire statutory scheme, construction of the provisions of the scheme must be done in the context of that schem e. When , in that contex t, two statutes c onflict and one is general and the other sp ecific, the statutes may be harmonize d by viewing the mo re specific statute as an exception to the more general one. Id. at 306, 835 A.2d at 1179 (citations omitted) (quoting Governm ent Employee s Ins. Co. v. Insurance C omm r, 332 Md. 1 24, 133 , 630 A .2d 713 , 718 (1 993)). See also State v. Ghajari, 346 Md. 101, 116, 695 A.2d 14 3, 150 (1997). -17- the additional punishment meted out to them.5 The court agreed with the thrust of the prisoners complaint and concluded, as a matter of Federal due process requirements, that, when the loss of diminution credits was at risk, the inmates were entitled to notice of the charges against them and a fair hearing on those charges, and that the procedures used by DOC were C onstitutionally deficie nt. See Bundy v. Cannon, 328 F. Supp. 165 (D. Md.197 1). Following announcement of the court s intention to enter an order providing relief, DOC 5 Seventy-two of the inmates were transferred from the Maryland House of Correction by reason of their alleged involvement in a non-violent work stoppage that was called to protest medical conditions at the prison and the punishment of eight inmates who had complained about those conditions. After the work stoppage had continued for three days, correctional officials decided to transfer a large number of inmates to the Penitentiary. Two officers were directed to prepare lists of those to be transferred. Those on the lists were brought before a disciplinary board consisting of three persons, including one of the officers who compiled the lists. They were not advised in advance of any charge, nor, until a few hours before, the time of the hearing. Seventeen of the 72 inmates w ere notified a t the hearing that they wer e being tran sferred be cause of s pecific acts of misconduct; the other 55 were told that they were being transferred because they were not amenable to the program security level at the House of Correction. The inmates w ere permitted to respond but were not allowe d represen tation, the right to confront their accusers, or the right to call witnesses in their defense. The only evidence consisted o f the written reports of th e correction al officers. T he 17 cha rged with specific misconduct were indefinitely confined in the segregation unit at the Penitentiary and they lost 105 days of good conduct credit. The situation with respect to the ten inmates transferred from the minimum security facility, due to a work stoppage and formation of an unauthorized inm ate association, was similar. At the time, there was n o handbook setting forth any detailed prison rules. There was a published list of ten general rules of conduct and a list of possible sanctions for the violation of those rules. In addition, there was an a dministrative directive setting forth administrative adjustment procedures for disciplining inmates due to infractions and for transfe rring the m bec ause of their ina bility to adju st to lesse r security st atus. See Bundy v. Cannon, 328 F. Supp. 165 , 168-70 (D. M d. 1971). -18- agreed to ad opt n ew p roce dure s that had been draf ted b y amicus in the case and that we re attached as an ap pendix to the co urt s op inion. Id. at 174-77. Those procedures, which defined and dealt with both minor and major violations, were obviously intended, and w ere regarded by the court, as minimally necessary to bring DOC into compliance with the due process requirements enunciated by the court. The initial procedures we re amended pursuant to consent orders on two subsequent occasions. See Bundy v. Cannon, 453 F. Supp. 856 (D. Md. 1978) and Bundy v. Cannon, 538 F . Supp . 410 (D . Md. 1 982). See also Michael A. Millemann, Prison Disciplinary Hearings and Procedural Due Process The Requirement of a Full Administrative Hearing, 31 M D. L. R EV. 27 (1971). They are the predecessors of DPSCSD 105-4 and 105-5. The due process underpinning of the Bundy procedures, at least when the revocation of earned diminution credits is at risk, was confirmed by the Supreme Court in Wolff v. McD onnell, 418 U.S. 539, 94 S. Ct. 29 63, 41 L. E d.2d 935 (1974). Th e Court the re held that, where a State prov ides for dim inution cred its and their rev ocation, a du e process lib erty interest is triggered that the State having created the right to good time and itse lf recognizing that its deprivation is a sanction authorized for major m isconduct, the prisoner s interest has real substance and is sufficiently embraced within Fourteenth Amendment libe rty to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to in sure that the sta te-created righ t is not arbitrarily abroga ted. Id. at 557, 94 S. Ct. at 2975, 41 L. Ed.2 d at 951 . Compare Meachum v. Fano, -19- 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed.2d 451 (1976) (no liberty interest involved in transfer of inmate to m aximum security prison) and Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed.2d 418 (1995) (pla cement o f inmate in segregated confinement did not trigger due process liberty interest).6 The first Bundy case was decided within a year after the creation of the Department of Public Safety and Correctional Services as a principal department of the State Government and the reorgan ization of the structure and governa nce of the State correct ional syste m. See 1970 Md. Laws, ch. 401. At the time, Maryland Code, Art. 41, § 204C (b) authorized the Secretary to promulgate rules and regulations for his office and to review, approve, disapprove, or revise the rules and regulations of all of the units in the Department, including DOC. Art. 41, § 204D(a) created DOC, to perform the functions and exercise the powers previously vested in the Dep artment of Corre ctional Services. The office of Commissioner of Correction was created by Art. 27, § 673. Section 676 of that article authorized the Com missioner to adopt rule s and regu lations, not inco nsistent with law, for the operations and maintenance of the several institutions and agencies in the Depa rtment, 6 In Sandin, the Court reviewed its past decisions regarding prison d isciplinary regulations and procedures and reaffirmed the approach it had taken in Wolff that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, w hile not exc eeding the sentence in such an u nexpecte d manne r as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, supra, 515 U.S. at 483-84, 115 S. Ct. at 2300, 132 L. Ed.2d at 429-30 (citations omitted). -20- for the discipline and conduct . . . of prisoners, and for the duties, discipline and conduct of officers and employees of the several institutio ns and ag encies. Th ere was n othing in any of those statutes that created any distinction between rules and regulations or between rules or regulations that concerne d only interna l manage ment and those that had a broader reach.7 Nor, although likely implicit, was there any specific mandate that rules or regulations be adopted in conformance with other statutory procedural requirements. Requirem ents for the adoption of regulations were much less rigorous then than they are now. A rt. 41, § 9 required an agency to submit proposed regulations to the Attorney General for approval as to legality; § 245(c) of that Article required the agency, prio r to adoption, to publish or otherwise circulate a proposed regulation and afford interested persons an oppo rtunity to comm ent on them , orally or in writing; and § 246 required the agency to file a certified copy of the re gulation w ith the Clerk of the Court of Appeals, the Secreta ry of State , and ce rtain oth er depo sitories. Although we may presume from the fact that the Attorney General represented the State in the Bundy case that he approved the agreed-upon procedures attached as an Appen dix to the court s o pinion, there is no indicatio n that 7 the Secretary or the The AP A in effe ct at the time, ad opted initially in 19 57 and su bstantially rewritten in 1961, used the term rule, rather than regulation, but rule was defined as includin g a regu lation an d essen tially as reg ulation is now define d. See 1957 Maryland Code, Art. 41, § 244(c) (1982 Repl. Vol.). The definition, as it had since the 1957 enactment, excluded from its scope regulations concerning only the internal management of the agency and not directly affecting the rights of or procedures available to the public. -21- Commissioner complied with an y of the other requirements then in the law. The C lerk of this Court has no record of a certified copy of the procedures being filed. Perhaps the Secretary and the Com missioner assumed that, as the procedures form ed part of a Federal court order, it was not necessary to comply with State statutory requirements, minimal though they were. The new req uirements f or adopting regulations w ere enacted in 1972 and 1974. The 1972 law (1972 Md. Law s, ch. 699) created the AELR Committee and required that agencies, at least 30 days prior to the adoption o f any rule, regu lation, or stand ard, subm it a copy to the committee . The 197 4 Act the State Documents Law (1974 Md . Laws. ch. 600) created COMA R and the Maryland Register and required agencies to send a copy of any proposed rule or regulation to the Administrator of State Documents at least 60 days prior to adoption, for publication in the Maryland Register. The current organization and terminology of the APA provisions were enacted as part of the State Gov ernment A rticle a Cod e Rev ision pro duct in 1984. See 1984 Md. Laws, ch. 284. The current versions of DPSCSD 105-4 and 105-5 were adopted in January, 2002. Although the Secretary and the Commissioner are obviously still bound to respect the due process requirements enunciated in Bundy, Wolff, and Sandin , it seems clear that those directives were not adopted pursuant to, and did not become part of, any extant Federal court order. There is no indication that they were ever submitted to or approved by the Federal court. They are purely State regulations. Nonetheless, the fact that they proceeded from, and -22- were des igned to im plement, ba sic Federal due process requirements is powerful evidence that they are not merely guidelines for routin e, or even n on-routine , internal man agemen t, subject to change at the w him of the Secretary or the C ommissioner. At least w here discipline may serve to leng then an inm ate s period o f incarceratio n or subjec t an inmate to other atypical punishment, regulations of that kind are required to protec t the C onst itutio nallybased liberty interest of prisoners. Neither the Secretary nor the Co mmission er could sim ply abrogate them and put nothing in their place, or amend them in a manner as would cause them not to provide the Constitutionally-required protection. The Court of Special Appeals essentially confirmed that view in Hopkins v. Md. Inmate Griev. Com m n, 40 Md. App. 329, 391 A.2d 1213 ( 1978) , cert. dismissed sub nom., Secretary v. Hopkins, 285 Md. 120 (1979). At issue there was a predecessor of DPSCSD 105-5, requiring tha t an inmate c harged w ith a rule violation be afforded a hearing within 72 hours after the alleged infraction unless prevented by exceptional circumstances. The hearing afforded Hopkins occurred five days, rather than three days, after the infraction. IGO rejected Hopkins s complaint, holding that the delay was justified by exceptional circumstances and was not prejudicial, and the Circuit Court, on judicial review, affirmed that decision. The Court of Special Appeals concluded that the recor d did not su pport a finding of exceptional circumstances and that the time requirement was not merely directory, but was man dato ry. Applying then the principle enunciated in Accardi v. Shaughnessy, 347 U.S. 260, -23- 74 S. Ct. 499, 98 L. Ed . 681 (1954), the court held it to be well-established, as a general rule, that regulations adopted by an administrative agency cannot be waived, suspended, or disregarded in a particular case so long as tho se regulations remain in fo rce. The court recognized that there were exceptions to that general principle, one of which was an agency s departure from proce dural ru les ado pted fo r the ord erly transa ction of agenc y busines s. Hopkins, supra, 40 Md. App. at 336, 391 A.2d at 1217. It concluded, however, that the regulation at issue was not of that type: It is clear that [DOC Rule 105-2(c)(1)], which is couch ed in unambiguous, mandato ry language, w as not intend ed to govern internal agency proc edures bu t was spec ifically adopted to confer important procedural benefits and safeguards upon inmate s . . . . Id. at 337, 391 A.2d at 1217. We dealt with an allied matter in Pollock v. Patuxent, 374 Md. 463, 823 A.2d 626 (2003). At issue was a directive adopted by Patuxent Institution, a correctional institution that is not part of DOC and that adopts its own directives, dealing with the handling of urine specimens collected from inmates. We expressly adopted the Accardi doctrine, that an agency must ordin arily comply with the rules and regulations th at it has adop ted, along w ith the exception recognized in Hopkins permitting departures from procedural rules adopted for the orderly transa ction of agency business, although, in contrast to one of the pronoun cements in Hopkins, we held that, to be entitled to relief by reason of an unauthorized departure, the claimant must show prejudice. In discussing Accardi and its -24- prog eny, we pointed out that, as a minimum, an agency s failure to comply with its own regulations automatically nullifies its action where the regulation is promulgated to affect fundamental rights derived from the Constitution or a federal statute and that nullification had been required even when less fu ndam ental r ights w ere invo lved. Pollock, supra, at 489, 82 3 A.2d at 642. Our ultimate con clusion w as that, in determ ining wh ether the Accardi doctrine applies, a co urt must scrutinize the agency rule or regulation at issue to determine if it implicates Accardi because it affects individual rights and obligations or whether it confers important procedural benefits or, conversely, whether Accardi is not implicated because the rule or regulation falls within the ambit of the exception which does not require strict agency complian ce with internal procedural rules adopted for the ord erly transaction of agency business, i.e., not triggering the Accardi doctrin e. Id. at 503, 823 A.2d at 650. We are not dealing here, of course, with Accardi, but the analysis is p ertinent in its distinction between regulations that affect fundam ental rights, especially those that are Constitution ally derived, an d those go verning m erely the orderly transaction of agency busine ss. The clear implication is that, if the regulation in question affects fundamental rights, it is not one that can be characterized as for the orderly transaction of agency business and thus n ot one that p ertains only to rou tine internal m anagem ent. An exemption from many of the requirements for adop ting regulatio ns that pertain only to the internal management of an agency has been part of the Model APA for nearly five -25- decades and appears in the law of nearly every State that has adopted a version of the Model APA. Although there have been many cases determining whether a particular rule or regulation falls within the ambit of the exemption, there has be en surprising ly little comment on the g eneral m eaning and sco pe of th at exem ption. The few commentators who have addressed the matter agree that the exemption was a pragmatic and balan ced one that to carry the procedural rule-making requirements too far into the internal workings of the agency would completely stifle agency activities if it were enforced. See Gary M. Haman & Robert P. Tunn icliff, Idaho Administrative Agencies and the New Idaho Adm inistrative Procedure Act, 3 IDAHO L. R EV. 61, 79 (19 66); see also Arthur Earl Bonf ield, The Iowa Administrative Procedure Act: Background, Construction, Applicability, Public Access To Agency Law, The R ulemaking Process, 60 IOWA L. R EV. 731 (1975) [herein after B onfield , The Iowa Administrative Procedure Act]; A RTHUR E ARL B ONFIELD , S TATE A DMINISTRATIVE R ULE M AKING § 6.17.2 (1986 & Su pp. 1993); Carl A. Auerbach, Admin istrative Rule making in Minne sota, 63 M INN. L. R EV. 151, 241-42 (1979). Bonfield noted the inefficiency and expense of requiring agencies to comply with the statutory requirements every time they gave an instruction of any sort to their employees, no matter how internal, and pointed ou t, as well, that the public ben efit wou ld be doubtful because the public is not really affected in any cognizable way by a large portion of the agencies internal houseke eping matte rs. Bo nfield, The Iowa Administrative Procedure Act, supra, at 833. Bonfield also ob served, howev er: -26- On the other ha nd, agenc ies could too easily subvert pu blic rulemaking requirements if they could avoid those procedures for anything they called an in ternal directive to staff. Af ter all, the public s rights can as easily be define d by statemen ts formally addressed to the agency staff Punish any person who litters a public park as by statements formally addressed to the public Any person who litters a public park will be punished. Id. In his book, Bonfield viewed the internal management exclusion as a very narrow ly drawn provision with several important qualifications. A RTHUR E ARL B ONFIELD , S TATE A DMINISTRATIVE R ULE M AKING § 6.17.2, at 402. It is meant, he asserts, to assure that matters of internal ag ency mana gement that are purely of concern to the agency and its staff are effectively excluded from normal rule-making and rule-effectiveness requirements. Id. (Empha sis added). In h is law review article, Bonf ield agreed that no ex clusion will b e allowed if the agency statement substantially affects rights of the public of a sort that are cognizab le as a matter of law; that is, rights which are normally enforceable against the agency or other parties through legal processes. Bonfield, The Iowa Administrative Procedure Act, supra, at 834. The kinds of statements falling within the ambit of the exemption, he concluded, face inwards and do not substantially affect any legal rights of the public or an y segment of the public, g iving as examples purely internal personnel practices and directions. Id. The question of whether policies and procedures like DPS CSD 10 5-4 and 105-5 should be exempt from the normal rules governing the adoption of regulations is not new. -27- At the time the Iowa and Minnesota law review articles were written, both Iowa and Minne sota had expressly add ressed th e issu e by statutorily expanding the internal manage ment exemption to include policies relating to inmates in State correctional institutions, thus indicating that those policies would not otherwise come within the exemption. A stylistically different but substantially similar approach was taken in the 1981 version of the Model APA drafted by the Uniform Law Commissioners. Section 3-116 of that Mode l Act not on ly excludes fro m the proc edural requiremen ts rules conc erning on ly internal manage ment that d o not subs tantially affect pro cedural or s ubstantive rig hts of any segment of the public but separately excludes rules concerning only inmates of a correctional or detention facility. Bonfie ld s and Auerbach s articles are cited in the Comment to that section. Some States have adopted that approach. See Jensen v. L ittle, 459 N.W.2d 237 (N.D. 1990) and Beasley v. Commissioner of Correction, 718 A.2d 487 (Conn. App. C t. 1998), notin g the No rth Dako ta and Co nnecticut law s to that effe ct. One thing of particular interest is that the separate exclusion suggested in the 1981 Model APA, recently rejected by the M aryland Leg islature, cover s not just inm ates in correctional facilities but also students enrolled in public educational institutions and patients admitted to public hospitals, for the same reason: The sheer burden of subjecting to usual rule-making and rule-effectiveness requirements the thousands of rules concerning the details of these agencies daily relationships with inma tes, students, an d patients w ould be intolera ble. A RTHUR E ARL B ONFIELD , S TATE A DMINISTRATIVE R ULE M AKING § 6.17.7, -28- at 415-16. In that regard, we note that the basic requirements regarding the disciplining of students in the public schools were adopted by the State Board of Education in conformance with the APA and appe ar in CO MAR 13A.08 .01. The B oard obv iously did not regard those procedu res as mere internal man agemen t. At least four S tates have c onsidered the issue judicially. New York had a Constitutional requ irem ent th at no rule or re gula tion of an y State a gen cy except . . . as relates to the organization or internal management of [the agency] was effective until filed with the State Secretary of State. The Commissioner of Correction suspended existing regulations pertaining to inmate disciplinary hearings and adopted, in their place, new regulations intended to be temporary. He did not file them with the Secretary of State, and several inmates who w ere discipline d in proceedings conducted under the new regulations challenged their valid ity. The Commissioner sought to justify them as relating to the internal management of the prison. In Jones v. Sm ith, 478 N.E.2d 19 1, 192 (N.Y. 198 5), the court rejected that defense, holding: Rules and regulations o f correction al institutions tha t affect a prisoner s liberty interests, as here, ma y not properly be s aid to involve matters of organization or internal managem ent , thus exemptin g them fro m the filing r equirements . . . . Such rules and regulations affect the entire prison population, that segment of the general public over which the Department of Correction al Services e xercises dire ct authority, and c onstitute a kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of condu ct for the future. (Citations omitted). -29- In Michigan, there was an exclusion for intra-agency directives that did not affect the rights of, or proce dures and practices av ailable to, the public. An inmate sued to declare the prison disciplinary rules invalid because they had not been adopted in conformance with the State APA, and the question arose whether the rules constituted procedures affecting the rights of the public whether inmates were part of the public. In Martin v. Department of Corrections, 384 N.W.2d 392 (M ich. 1986), the court held that inmates were part of the public and that the exclusion did not apply. The court rejected the Department s argument that prison discipline rules affect only the inmates and that public comment on those rules would be of little benefit, noting that [t]his belief seems to overlook the obvious public concern of hum anitarian and civil rights groups [and] completely overlooks the concern of the Leg islature. Rhode Island and Tenness ee have ru led to the con trary. See L H eureux v. S tate Dept. of Corrections, 708 A.2d 549 (R.I. 19 98); Mand ela v. Cam pbell, 978 S.W.2d 531 (Tenn. 1998) . Neithe r decisio n is pers uasive . In Rhode Island, the procedural rules governing prison disciplinary proceedings w ere promulgated to comply with a Federal court decree. The rules were eventually reissued as part of a permanent injunction issued by the Federal court, and both the rules and the injunction remained in effect at the time of L Heureux. A prisoner sued the Department of Corrections in State court, complaining of violations of those rules. Neither the nature of the alleged violations nor the relief sought is explained. The thrust of the Rhode Island Supreme -30- Court opinion was that the contested case provisions o f the State A PA did n ot apply to inmate disciplinary proceedings and that decisions m ade in those proceedings w ere therefore not subject to judicial review. Several cases were cite d for that proposition.8 Without the benefit of any analysis, the court then simply concluded that, if the contested case part of the APA did not apply, neither did the rule-making requirements: We are persuaded by the rationale of the foregoing federal an d state cases [all of which involved only the contested case provisions of the APA] that the intricate structure of our APA provisions r elating both to contested cases and to the exercise of the rule-making power would be ill suited to the management of the often volatile population of the ACI. L Heureux, supra, 708 A.2d at 553. In sweeping with such a broad bru sh, the Rho de Island co urt did not se em to take into account the prospect that the revocation of diminution credits mig ht be at risk in disciplinary procee dings perhap s Rho de Islan d did no t provid e for su ch cred its. The Tennessee decision was influenced in part by L Heureux, which the court quoted, 8 That proposition is founded, at least in part, on the holdings in Wolff v. McDonnell, supra, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed.2d 935 and Sandin v. Conner, supra, 515 U.S. 472, 115 S. Ct. 2293, 132 L . Ed.2d 418 that, unless dim inution credits are revoked, thereby extending a prisoner s incarceration, or some similar kind of significant deprivation is imposed, a prisoner has no Constitutionally-protected liberty interest in the outcome of prison disciplinary proceedings, those leading m erely to temporary segregation or the loss of privileges. The theory seems to be that (1) if there is no Constitution al interest at stake , there is no C onstitutional rig ht to a hearin g, (2) if there is no Constitutional or statutory right to a hearing, the proceeding is not a contested case under the A PA, and (3) if the proc eeding is no t a contested case, absen t a statute, there is no right of judicial review. In Clardy v. Levi, 545 F.2d 1241 (9 th Cir. 1976), the court concluded that Congress did not intend for the contested case requirements of the Federal APA to apply to inmate disciplinary proceedings in the Federal prisons. -31- and in part by the court s observation that the L egislature had delegated c onsiderable deference and broad discretion to the Tennessee DOC, from which it concluded that [t]his broad grant of discretion also envisions that those persons intimately involved with the intricacies of the prison system and not the voting public are best equipped to establish policies and procedures for inmate discipline. Mand ela, supra, 978 S.W.2d at 534. With due respect to the Tennessee court, that is not the issue. Clearly, control over prison management is vested in DOC, subject to the Secretary s overall supervision, and not the voting public or, inde ed, the J udiciary. See State v. McCray, 267 Md. 111, 134, 297 A.2d 265, 277 (197 2); see also Lumumba v. Morton, 655 A.2d 487 (N.J. S uper. Ct. App. Div. 1995) (holding that prison rule prohibiting inmates from wearing shirts that could show military rank or group membership was not subje ct to formal APA rule-making requirements). The question is simply whether inmate discipline procedures adopted by the Secretary that can directly or indirectly affect an inmate s actual length of incarceration qualify as me rely internal man agemen t guidelines, an d, to us, they do n ot. The basic regime of identifying prohibited conduct, setting ranges of discipline for the various offenses, and establishing due process-compliant procedures for charging offenses, informing inmates of the offenses charged, and adjudicating culpability has been in place, with occasional modifications, for over 30 years. It is the framework within which much of the discretion accorded to DOC in dealing with inmates o perates. It is not the myriad of rules governing the details of prison life what inmates may wear, what they may or may not keep -32- in their cells or on their persons, the rules governing security, sanitation, hygiene, phone calls, mail, and visits, for example or the discretionary calls available to correctional officers when c onfronting inmate misbehavior that must be adopted a s regulations , but only the framework. Upon this analysis, we hold that DPS CSD 1 05-4 and 105-5 co nstitute regulations under SG § 10-101(g), that they are not exempt from the APA requirements, and that, to be legally effective, they must be adopted in conformance with those requirements. Delayed Effect Although there may be a fine line here between substance and procedure, the legal deficiency in D PSC SD 1 05-4 and 105-5 is e ssen tially a proc edural one they were not adopted in conformance with the proced ural req uireme nts of th e APA . Massey may or may not be entitled to relief on his basic claim, but he is entitled to have his claim resolve d in accordance with validly adopted procedures. The Legislature has made clear that regulations are not effec tive unless an d until there h as been co mpliance with the statutory requirements, and we ha ve enf orced th at legisla tive dete rminatio n. See Delmarva Power v. PSC, 370 Md. 1, 803 A .2d 460 (2002 ), on recon sideration, 371 Md. 356, 809 A.2d 640 (2002). On the other hand, there are some important practical considerations that must be taken in to accoun t. As we observed, the directives at issue were put into place in order to comport with Federal due process req uirements, so simply declarin g them im mediately ineffective and leaving nothing in their place is not an option. That would bring prison disciplinary proceedings to -33- a halt. Under Maryland R ule 8-606 , the disposition of an app eal is evidenced not by the Court s opinion but by a manda te issued by the c lerk in conf ormance with the opinion . It is the mandate, which is ordinarily issued 30 days after the filing of the opinion, that constitutes the judgment of the Co urt. Rule 8-606(b) permits the Court to advance or delay the issuance of the mand ate, and, altho ugh we rarely exercise that discretion, this case is one in which a delay is appropriate, in order to give the Secreta ry time to comply with the APA requirements.9 To that en d, we sha ll direct the clerk to withhold the mandate for 120 days. Massey is entitled to have his claim, unless it has become moot, considered in accordance with va lid and e ffectiv e regula tions. JUDGMENT OF CIRCUIT COURT FOR ALLEGANY COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE DECISION OF INMATE GRIEVANCE OFFICE AND TO REMAND CASE TO THAT OFFICE FOR FURTHER PROCEEDINGS WITH RESPECT TO MASSEY S COMPLAINT; MANDATE TO ISSUE 120 DAYS AFTER FILING OF TH IS OPINION; COSTS TO BE PAID BY APPELLEE 9 It is not our function to advise the Secretary how to proceed. We do call her attention, however, to SG § 10-111(b). -34- IN THE COURT OF APPEALS OF MARYLAND No. 142 September Term, 2004 ______________________________________ RICHARD L. MASSEY, JR. v. SECRETARY, DEPARTM ENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Dissenting and Concurring Opinion by Bell, C.J. ______________________________________ Filed: November 21, 2005 In a thoughtful, thorough, and well reasoned opinion, the majority addresses the validity of certain of the directiv es, adopted by the State Department of Public Safety and Correctional Services (DPS CS), the appellee, and pursua nt to wh ich Ric hard L . Mass ey, Jr., the appellant, having been found to have violated them, was serving additional prison time. The appellant argued that the directiv es at iss ue in this case are in actua lity regula tions, and, therefore, were required to be promulgated in conform ance with the State Administrative Procedu re Act (the APA ), Maryland Code (1 984, 200 5 Repla cement Volume) §§ 10-101 10-117 of the State Government Article.. After conducting the appropriate analysis, the ma jority, agreeing with the appellant, concluded that the directives are indeed regulation s, as define d in § 10-101 (g) (1)1 of the State Government 1 Maryland C ode (198 4, 2005 R eplaceme nt Volum e) § 10-10 1(g)(1) of th e State Government Article provides: Regulation means a statement or an amendment or repeal of a statement that: (i) has general application; (ii) has future e ffect; (iii) is adopted by a unit to: 1. detail or carry ou t a law that the unit administers; 2. govern o rganization of the unit; 3. govern the procedure of the unit; or 4. govern practice before the unit; and (iv) is in any form, including: 1. a guideline; 2. a rule; 3. a standard; 4. a statement of interpretation; or 5. a statem ent of p olicy. Subsection (g) (2) excludes from the definition of regulation, inter alia: (i) a statemen t that: (continued...) Article, because they constitute sta tements that have general application throughout all of the correctional institutions in DOC and apply to all inmates in those institutions; they have futu re ef fect ; they w ere a dopted b y a unit to carry out laws that the unit administers; and they are in the form of rules, standards, statements of interpretation, and statements of policy, ___ Md. ___, ___, ___ A. 2 d ___, __ _ (2005) [ slip op. at 12]. Moreover, continued the majority, the reg ulations w ere not statem ents conce rning only internal management of the unit, that do not affect directly the rights of the p ublic or the p rocedures available to the public, thus rejecting the appellee s contention in that regard, that the exception, contained in § 10-101 (g) (2) applied. Then, noting the absence of a dispute with respect to the appellant s allegation that these regulations were not adopted in conformance with the APA, the majority declared the regulations to be invalid a nd inef fective . Id. at ___, ___A. 2d at ___ [slip o p. at 2]. Spec ifically, the majority ho lds that DPSCSD 105-4 and 105 -5 constitute regulations under SG § 10-101(g), that they are not exempt from the APA requirements, and that, to be legally effective , they must be a dopted in c onform ance with those requirements. Id. at ____, ___ A. 2d at ___ [slip op. at 33]. With these holdings and conclusion s, I am in com plete agreem ent, and so c oncur in the opinion to th is point. Having enforced the legislative m andate with respect to the manner of promulgating (...continued) 1. concerns only internal management of the unit; and 2. does not affect directly the rights of the public or the proced ures av ailable to the pub lic. -2- regulations, the majority, noting the motivation for, and the history of, the adoption of the regulations in this case - to comply with Federal due process requirements - and concerned about bring[ing] prison discipline proceedings to a halt, delays the issuance of the Co urt s mandate for 120 d ays in order that th e appellee w ill have tim e to com ply with th e APA . ___ Md. at ___, ___ A. 2d at ___ [slip op. at 34]. To justify this result, it characterizes the deficiency in the challen ged regu lations as ess entially a proce dural o ne. Id. at ___, ___ A. 2d at __ _ [slip o p. at 33] . As to the appellant s claim, the majority concludes that it remains alive, but that the appellant is not entitled to any specific relief . While it pointedly and expressly refrains from opining on the me rits, the majority acknow ledges that th e appellant h as the right to have his claim resolved in accordance with validly adopted procedures. Id. Implicit in the majority s decision is either that the appellan t did not raise a challenge entitling him to dismissal of the charges against him or any such relief and/or that, in any event, he was not prejudiced by the appelle e s failu re to act in confo rmity with the AP A. Ac cordin g to the m ajority, [The appellant s] complaint was that h e had bee n subjected to discipline and had lost diminution credits pursuant to the substantive and procedural provisions of DPSCSD 105-4 and 105-5, which he believed to be invalid , in part, at least, because they had not been adopted in conformance with the APA. His initial challenge, as he made clear, was not to whether he was guilty of an infraction that called for the discipline imposed but only to the Secreta ry s directiv es purs uant to w hich the matter w as adju dicated . Id. at ___, ___ A. 2d at ___ [slip op. at 11]. In effect, it says: unless an appellant, at the least, disputes his o r her guilt or states precisely that he or she believes both the charge and -3- the punishment to be deficient, the substantive sufficiency of the one not mentioned has not been challenged and, thus, need not be addressed. It is, therefore, apparently the majority s position that the appellant failed to preserve the issue of his culpability for the infractions with which he was charged and punished. In reaching this conclusion, it gives the appellant s complaint the narrowest possible construction, not to mention an untenable and a straine d one. I have no s erious qua rrel with the d ecision to de lay the mand ate in this case . In fact, in view of the purpose of the regulations, specifically pointed out by the m ajority, see ___ Md. at ___, ___ A. 2d at ___ [slip op. at 34] to ensure that prisoners are afforded due process, as required by the Constitution sensitivity to there being such regulations in place, without a g ap, is not simp ly commen dable, it is essen tial. Whether the charges and the punishment meted out to, and challenged by, the appellant should be subject to retrial upon th e adoption of new , valid regulatio ns is quite another matter. I do not share the majority s view that the appellant failed to raise the issue of his guilt of the infractions with which he was charged, having chosen, altruistically, perhaps, to chide the appellee on ly as to its procedu ral default, ne glecting en tirely to challenge the substantive deficiency. The record does not support that view as a matter of fact. The appellant s initial complaint was that the regulations are unlawful, as a consequence of which, in violation of his interest in fairness, he was being punished by being -4- required to serve additional prison time. And, although the grievance he filed following the denial of that complaint addressed only the ground of the de nial that the appellant s complaint exceeded the number of requests for administrative remedy that the appellee permitted by regulation, as to which he argued that such regulation suffered from the same deficiency as those he initially challenged, it was not validly promu lgated the appellant s petition for judicial review reverted to his original ground: he contended that the regulations subjecting him to increased punish ment and limiting his acc ess to court w ere not valid ly adopte d beca use the y were n ot adop ted in ac cordan ce with the AP A. I do not belie ve, as the m ajority does and seems to requ ire, that where there are various objections to regulations th at could be made, separately and seriatim, in a comp laint, a prisoner ex pressly must m ake each one he inte nds to purs ue to preser ve that objection. That is simply not necessary. By challenging the validity of the regulations pursuant to which he had receiv ed addition al punishm ent, it is clear beyond cavil that the appellant was doing more than simply raising whether the reg ulations were properly promulgated as a procedural issue: he was contending that the entire process, from his being charged, found guilty and punished, was a nullity. If the regulations forming the basis for an infraction are invalid, it seems to me clear that the proceedings pursued pursuant to those regulations can be no more valid. There is, in that circumstance, therefore no necessity that a complainant would, or should, address the particulars of those proceedings; discussing the issue of his guilt or the appropriateness of the punishment imposed, under these circumstances, is simply irrelevant -5- and un necess ary. I agree w ith the major ity that the appellan t is entitled to ha ve his claim resolved in accordance with validly adopted procedures. ___ Md. at ___, ___ A. 2d at ___ [slip op. at 33]. On the other hand, this Court s holding that the regulations pursuant to which the appellant was charged, convicted and punished were no t validly promu lgated answ ered fully and adequately the appellant s concer n. Becau se the regula tions were invalidly promulgated and thus are a nullity, the effect of that holding necessarily is that the actions taken pursua nt theret o are nu llities, as w ell. The appellant s additional punishment therefo re is of n o effe ct and th is Cou rt should clearly an d unhe sitatingly sa y so. -6-