UMAR M. ALI-KHAN 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NOT FOR PUBLICATION WITHOUT THE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-0

UMAR M. ALI-KHAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

December 5, 2014

Submitted November 13, 2014 Decided

 
Before Judges Alvarez and Carroll.

On appeal from the New Jersey Department of Corrections.

Umar M. Ali-Khan, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).

PER CURIAM

Umar M. Ali-Khan, an inmate at the Adult Diagnostic and Treatment Center in Avenel, appeals from a final decision of the Department of Corrections (Department) finding him guilty of prohibited acts .256, refusing to obey an order of any staff member, and .402, being in an unauthorized area, both in violation of N.J.A.C. 10A:4-4.1(a). As a result of the adjudication, Khan was sanctioned with fifteen days of detention, ninety days of administrative segregation, sixty days of suspension, 360 days loss of commutation time, and ten days loss of recreation privileges.

In denying Khan's appeal, the Department briefly stated that the hearing was conducted in compliance with procedural safeguards, and that Khan's explanation that there was a "misinterpretation" of the facts along with his "plea for leniency," had been considered and rejected. The decision also stated that he was obliged to follow institutional rules and regulations as enforced by staff. In the opinion of the administrator, the sanction imposed by the hearing officer was proportionate to the offense.

We now vacate and remand for a new hearing to be conducted in accordance with this opinion, as we find, pursuant to Ratti v. Department of Corrections, 391 N.J. Super. 45 (App. Div. 2007), that a new hearing is necessary. As in Ratti, different hearing officers conducted separate proceedings during the evidentiary phase of this matter. See id. at 47.

On September 7, 2013, Senior Corrections Officer Billero observed Khan on the first floor corridor walking towards the law library during a "visit package movement" of inmates. Khan had earlier obtained a first floor pass, and left his unit to walk to the law library. Even with this pass, however, Khan was obligated to leave his wing to go to the law library as part of another inmate movement some fifteen minutes later. When seen in the "visit package movement," Billero called down to Khan's wing to ask if he was authorized to be in that group, and was told he was not. Since he left his wing with the wrong group of inmates, he was charged with .402, being in an unauthorized area.

Billero confronted Khan, however, it took three orders and, as described by the officer, "a verbal confrontation," in order to convince the inmate to return to his unit. When he headed back towards the law library with the correct movement, Khan was ordered to give Billero his identification and stand by the wall. At that point, Billero alleged that Khan "became verbally loud and confrontational towards [him] until Lieutenant McLeod had to intervene and calm the inmate down." It is not clear if Khan was charged with .256 for this or his earlier encounter with Billero.

Because this was not a more serious asterisk offense, counsel substitute was not assigned nor sought by Khan. According to the "Adjudication of Disciplinary Charge Correctional Facility's Copy," Khan did not request that any witnesses be produced. At the hearing, Khan claimed he was not guilty of the charged offenses because having obtained a pass, he had the right to be in the area where the law library was located. He further claimed that he had the right to demand that the officer explain the reason he was being returned to his wing and not permitted to move on to the law library. Because he ultimately complied with Billero's order, Khan did not consider himself to be guilty of anything.

The first hearing date was scheduled on September 11, 2013. Hearing Officer Russell presided. The hearing was postponed because Russell requested both a "copy movement list" and "clarification of charge."

When the hearing resumed on September 13, Hearing Officer Nolley presided. Nolley concluded that because Khan was in the wrong movement of inmates, earlier than the group with which he was supposed to go to the library, he was properly ordered back to his wing. Nolley further found that when he was ordered to return, Khan "refused and became confrontational with staff." Lastly, Nolley found that Khan "reported to the library eventually but after all of the other inmates" reported. As a result, he upheld the charges.

Khan raises the following point of error

APPELLANT WAS DENIED PROCEDURAL DUE PROCESS AND SUBSTANTIVE DUE PROCESS BY HAVING TWO DIFFERENT HEARING OFFICERS HEAR HIS CASE AND THE SECOND HEARING OFFICER RECEIVED OR CLAIMED TO RECEIVE CONFIRMATION THAT APPELLANT WAS IN AN UNAUTHORIZED AREA EITHER VIA WORD OF MOUTH TESTIMONY OUTSIDE PRESENCE OF THE APPELLANT OR BY WRITING WHICH APPELLANT WAS NEVER SHOWN OR ALLOWED TO SEE OR QUESTION. THE APPELLANT GAVE HIS EVIDENCE AND TESTIMONY TO THE ORIGINAL HEARING ON SEPTEMBER 9, 2013.

In Ratti, we stated that it was essential that only one hearing officer conduct the evidentiary phase of disciplinary hearings. Id. at 47. Clearly, there is no problem with different hearing officers conducting pre-hearing proceedings during the course of which pleas are entered, witness lists provided, or other preliminary steps taken. Our concern in this case, however, is that it appears that the evidentiary portion of the proceedings had already begun. Otherwise Russell would not have sought either the movement list or clarifications of the charge, as the need would not have arisen unless the evidentiary portion had commenced.

Admittedly, unlike in Ratti, the testimony in this case was not divided into two phases. There, the inmate's challenge to his adjudication on disciplinary charges required credibility rulings to be made. Such rulings, almost by definition, require a single fact-finder.

In this case, it may well be that Ratti's dictates were honored, namely, that when "the original hearing officer is unavailable on the date the hearing resumes, the evidentiary phase of the hearing must begin anew before the replacement hearing officer." Id. at 48. But we cannot discern from the record if that procedural safeguard was accorded to Khan. The adjudication sheet was signed by both hearing officers. Nolley's findings appear immediately above Russell's signature, although Russell's signature and Nolley's signature were affixed to the document on September 11 and September 13 respectively. Accordingly, we vacate the adjudication and imposition of sanctions, and remand for new proceedings to be conducted in accordance with this decision.

One final point should be addressed. The State contends the Ratti issue should not be considered on appeal as Khan did not raise it either before the second hearing officer or the State agency. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This rule generally applies to administrative agency decisions. In re Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div. 2008). This point neither pertains to the jurisdiction accorded to the hearing officer nor to a matter of great public interest.

In Avant v. Clifford, 67 N.J. 496, 523-24 (1975), the Supreme Court established that because a prison disciplinary proceeding is not a criminal prosecution, it does not require the same due process protections available to defendants in criminal proceedings. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 499 (1972). Inmates are only entitled to: (1) written notice of the charges at least twenty-four hours before the hearing; (2) an impartial tribunal; (3) a limited right to call witnesses and present documentary evidence; (4) a limited right of confrontation; (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (6) a limited right to the assistance of counsel substitute. Avant, supra, 67 N.J. at 52537.

Even so, as Ratti explained, "the conduct of the evidentiary hearings by two different hearing officers is unacceptable as a violation of the fundamental fairness that must attend all prison disciplinary proceedings." Ratti, supra, 391 N.J. Super. at 47. That the hearing should begin and end with the same hearing officer presiding seems foundational in according inmates due process as defined by Avant. Avant, supra, 67 N.J. at 521 ("in applying the requirements of procedural 'due process' to our scrutiny of the standards under review, we use the term in that broader aspect, not confined entirely to constitutional right as such but going beyond").

In this case, the sanctions included not only administrative segregation, detention, and loss of recreational privileges, but also 360 days loss of commutation time. The sanctions were indeed a "'grievous loss' by way of punishment for serious misconduct." Id. at 519. In light of the consequences to this inmate and the fact that the violation of the Ratti rule of law infringed upon his fundamental due process rights, we feel compelled to address Khan's claim despite his failure to raise the issue earlier. Randolph Town Ctr., L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006) ("Courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." (citations omitted)).

Khan is therefore entitled to a new evidentiary hearing conducted by only one officer.

Reversed and remanded.