KENNETH E. WILSON 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NOT FOR PUBLICATION WITHOUT THE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-2135-07T12135-07T1

KENNETH E. WILSON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted October 6, 2008 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Final Decision of the New

Jersey Department of Corrections.

Kenneth E. Wilson, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Melissa H. Raksa, Deputy Attorney

General, of counsel; Keith S. Massey, Jr.,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kenneth Wilson, an inmate at New Jersey State Prison, appeals from a final decision of the Department of Corrections "permanent[ly]" denying his application for restoration of his contact visit privileges. We reverse and remand for further review by the Commissioner of the Department of Corrections (DOC).

The facts are not complex. Appellant, serving a life sentence, was charged with two "zero-tolerance" disciplinary infractions involving the use of drugs. The first offense on January 24, 2000, arose after appellant tested positive for opiates in his urine. Following this offense, he received a number of sanctions including temporary loss of contact visits. Appellant appealed that determination, and we affirmed. Wilson v. Dep't of Corrections, No. A-3766-99 (App. Div. January 10, 2001).

In March 2002, appellant committed a second disciplinary infraction when he was found in possession of a glassine envelope containing heroin. Consistent with the then-extant DOC regulations, he received, among other sanctions, "permanent" loss of his contact visit privileges.

According to appellant, since the time of the last infraction in 2002, he has not incurred additional infractions and, in fact, he has completed a twelve-step program for substance abuse, completed a paralegal certification program and has been designated as a housing unit representative.

In December 2005, appellant sought restoration of his contact visits pursuant to N.J.A.C. 10A:18-6.20(b) (the Regulation). That request was denied. In denying the request, the Director noted that since appellant received two zero-tolerance disciplinary charges, "[his] contact visits cannot be restored."

Appellant, thereafter, made another application in July 2007, citing his infraction-free record and other achievements. That, too, was denied with the notations that since appellant received two zero-tolerance offenses, "[he was] not entitled to restoration of contact visits." His appeal of that denial prompted the Administrator's response: "[r]equest is denied. Do not reapply you have two Zero Tolerance charges. Your loss of contact privileges is Permanent." (emphasis added.) Finally, on November 16, 2007, after reconsideration of appellant's request, plaintiff was informed that his request for contact visit privileges was denied based solely on his two prior zero-tolerance infractions. This appeal followed.

We focus our attention on the relevant regulation. N.J.A.C. 10A:18-6.20(b) provides:

The reinstatement of contact visit privileges for an inmate who has been found guilty of a second or subsequent prohibited act identified in a zero tolerance policy as established in N.J.A.C. 10A:4-5.1 and 12 will be considered after the inmate has completed all consecutive sanctions imposed and has submitted a request to the Administrator or designee.

The promulgation of the Regulation in the context of DOC's zero-tolerance policy is illuminating. DOC has a zero-tolerance policy concerning use, sale, and possession of drugs and alcohol in its facilities. See N.J.A.C. 10A:1-2.2. Consistent with that policy, DOC adopted a regulation providing that a second drug-related disciplinary infraction would result in the loss of an inmate's contact visits. N.J.A.C. 10A:4-5.1(c) and N.J.A.C. 10A:4-12.3. That policy has evolved into a more flexible approach to the issue.

N.J.A.C. 10A:18-6.20(b) was originally proposed on August 3, 1998, to "reflect the intention of the New Jersey Department of Corrections to maintain a drug/alcohol free correctional facility environment in which to live and work." 30 N.J.R. 2810(a) (August 3, 1998). DOC urged that drug-related offenses threatened the operation of the facility, and as such, the proposed regulation supported DOC's efforts to maintain a zero- tolerance of drug use, sale, and possession. The then proposed regulation was absolute by its terms: "The reinstatement of contact visit privileges shall not be considered for an inmate who has been found guilty of a second or subsequent drug or alcohol related prohibited act as established in N.J.A.C. 10A:4-5.1(c) or 5.2(c)." Ibid. The regulation was adopted on November 2, 1998. 30 N.J.R. 3965(2) (November 2, 1998).

On April 5, 2004, DOC proposed an amendment to the regulation to "establish that the reinstatement of contact visit privileges for an inmate who has been found guilty of subsequent drug or alcohol related prohibited act as established in N.J.A.C. 10A:4-5.1 or 5.2 may be requested by the inmate after completion of all consecutive 365-day sanctions imposed." 36 N.J.R. 1657(a) (April 5, 2004). The absolute-bar provisions of the Regulation were modified. The new regulation deleted "reinstatement shall not be considered" and new language was added to provide for discretion to allow consideration of reinstatement of contact visit privileges for an inmate who has been found guilty of a second or subsequent drug or alcohol related prohibited act. Ibid. The subsection was adopted on August 2, 2004, and read:

The reinstatement of contact visit privileges for an inmate who has been found guilty of a second or subsequent drug or alcohol related prohibited act as established in N.J.A.C. 10A:4-5.1 or 5.2 will be considered after the inmate has completed all consecutive 365-day sanctions imposed and has submitted a request to the Administrator or designee.

[ 36 N.J.R. 3552(a) (August 2, 2004).]

A further amendment on December 5, 2005, deleted reference to "drug or alcohol," and broadened the provision to apply to prohibited acts identified in a zero-tolerance policy. 37 N.J.R. 4575(a) (December 5, 2005). Additionally, the reference to "365-day" was deleted "because the sanction is termination rather than a specific time period of 365 days"; however, reinstatement could still be considered after 365 days from the time the sanction was imposed under N.J.A.C. 10a:18-6.20(a). Ibid.

In sum, the amended Regulation created a discretionary reinstatement policy eliminating the non-discretionary policy that previously existed. Our concern on this appeal is that DOC did not exercise discretion but acted on the premise that a policy of mandatory denial was still in place.

We recognize that our review of administrative determinations is limited. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. In re Herrmann, 192 N.J. 19, 27-28 (2007); R & R Mktg. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We further recognize that in a prison environment, a zero-tolerance policy serves important public and penal interests. But such circumstances and public and penal interest do not relieve any party of dealing fairly and responsibly with those within their charge.

We do not determine that contact visits should be granted. We do conclude, however, that appellant is entitled to a reasoned and carefully considered review of his application for reinstatement of contact visits taking into account the respective interests of the penal system and appellant.

We remand this matter to DOC for further consideration consistent with this opinion.

 

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A-2135-07T1

November 12, 2008