TERRY TRAYLOR 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5472-15T2
                                                                     A-5473-15T2

TERRY TRAYLOR,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

GERALDO MORALES,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                    Submitted October 11, 2018 – Decided October 24, 2018

                    Before Judges Accurso and Vernoia.
            On appeal from the New Jersey Department of
            Corrections.

            Terry Traylor and Geraldo Morales, appellants pro se.

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa Dutton Schaffer, Assistant
            Attorney General, of counsel; Suzanne M. Davies,
            Deputy Attorney General, on the brief).

PER CURIAM

      In these appeals, which were scheduled back-to-back and consolidated for

purposes of this opinion, Geraldo Morales and Terry Traylor (collectively,

appellants) challenge the New Jersey Department of Corrections' (DOC) July

20, 2016 final decisions rejecting their claims the DOC lacked authority to

install padlocks on, and limit access to, refrigerators in the Special Treatment

Unit (STU) where appellants are housed pursuant to civil commitments under

the Sexually Violent Predator Act,  N.J.S.A. 30:4-27.24 to -27.38 (SPVA). We

affirm.

      The pertinent facts in the record before the DOC are not disputed. 1 The

DOC's STU Search Plan Coordinator issued a written directive requiring the


1
  We do not address appellants' numerous factual assertions that find no support
in the record. For example, appellants' brief details alleged "problems [they]
and the resident population [of the STU] are experiencing." Those factual
allegations, and others, were not presented to the DOC and cannot properly be


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installation of locks on the refrigerators in the STU housing units. He further

directed that DOC officers shall lock and unlock the refrigerators, monitor the

refrigerators while they are open and inspect the refrigerators for contraband

prior to relocking them. The directive also required that the refrigerators be

opened a minimum of two times during each of the DOC officers' work shifts

and during the residents' "mess movements."

      In identically worded "Request System & Remedy Form[s]," appellants

separately challenged the installation of the locks on the refrigerators. 2 They

alleged the DOC "overstepped [its] official authority" and failed to comply with

 N.J.S.A. 30:4-27.34(c), which provides that "[a]ppropriate representatives of the

[DOC] and the Department of Human Services shall participate in an

interagency oversight board to facilitate the coordination of the policies and

procedures of the facility."   The STU Custody Department issued written




considered for the first time on appeal. See, e.g., Davis v. Devereux Foundation,
 209 N.J. 269, 296 n.8 (2012) (explaining appellate review is limit to the record
presented to the trial court).
2
   It is unclear from the record whether the STU Search Plan Coordinator's
written directive preceded or followed appellants filing of the Request System
& Remedy Forms. It is unnecessary to determine when the written directive was
issued, however, because appellants challenge the DOC's authority to lock the
refrigerators and not the means by which the STU Search Plan Coordinator
communicated the requirement.
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                                       3
responses to appellants' challenges to the directive, stating STU residents are

provided access to the refrigerators no less than four times per day and

explaining "the refrigerators are secured to control and deter the introduction of

contraband and its movement" in the facility.

      Appellants appealed to the DOC, arguing the Custody Department's

responses did not "mention whether the issue will be presented to the"

interagency oversight board, and the directive failed to include a policy

governing the "'time' when residents[] might receive access to their food inside

of the locked refrigerators." The DOC issued written final decisions denying

the appeals and upholding the Custody Department's decisions. The present

appeals followed.

      In their joint brief, appellants present the following arguments for our

consideration:

            POINT I

            THE DEPARTMENT SHOULD BE COMPELLED TO
            CREATE AND ENFORCE WRITTEN INTERNAL
            MANAGEMENT PROCEDURES GOVERNING THE
            LOCKING     AND     UNLOCKING      OF
            REFRIGERATORS PURSUANT TO N.J.A.C. []
            10:36A-1.5.




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                                        4
            POINT II

            THE DEPARTMENT MUST DO MORE [THAN]
            MERELY ASSERT A SECURITY CONCERN AND
            MUST     DO    MORE     THAN     OFFER
            CONCLUSIONARY STATEMENTS AND POST
            HOC RATIONALIZATIONS FOR ITS CONDUCT.

      Our role in reviewing decisions of administrative agencies is limited. See

In re Stallworth,  208 N.J. 182, 194 (2011). Decisions of administrative agencies

carry with them a presumption of reasonableness. Newark v. Nat. Res. Council,

 82 N.J. 530, 539 (1980).      We will not disturb the determination of an

administrative agency absent a showing that it was arbitrary, capricious, or

unreasonable. Circus Liquors, Inc. v. Middletown Twp.,  199 N.J. 1, 9 (2009).

Thus, we must determine whether: (1) "the agency's action violates express or

implied legislative policies"; (2) "the record contains substantial evidence to

support the findings on which the agency based its action"; and (3) "in applying

the legislative policies to the facts, the agency clearly erred in reaching a

conclusion that could not reasonably have been made on a showing of the

relevant factors." Id. at 10 (quoting Mazza v. Bd. of Trs., Police & Firemen's

Retirement Sys.,  143 N.J. 22, 25 (1995)). Nonetheless, we must "engage in a

'careful and principled consideration of the agency record and findings.'"




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                                       5
Williams v. Dep't of Corr.,  330 N.J. Super. 197, 204 (App. Div. 2000) (citation

omitted).

      Appellants argue for the first time here that the Search Plan Coordinator 's

directive requiring the locking of STU housing unit refrigerators is invalid under

N.J.A.C. 10:36A-1.5.3 We reject the argument because it was not "properly

presented to" the DOC and does not "go to the jurisdiction of [the DOC] or

concern matters of great public interest." State v. Robinson,  200 N.J. 1, 20

(2009) (quoting Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973)); see

also In re Stream Encroachment Permit,  402 N.J. Super. 587, 602 (App. Div.

2008) (noting we will not consider issues that were not raised before an

administrative agency unless they are of public importance).

      We also reject the argument because it is wholly bereft of merit.

Appellants' contention is founded on N.J.A.C. 10:36A-1.5, which provides that

"[t]he [Division of Mental Health and Addiction Services (DMHAS)] Clinical

Director and the [DOC] Administrator, or their designees, shall develop and

maintain written policies and procedures for the operation of the program and


3
  The record shows appellants argued before the DOC only that the directive
contravened the requirements of  N.J.S.A. 30:4-27.34(c). They do not reprise
that argument on appeal, and we therefore do not address it. See Jefferson Loan
Co. v. Session,  397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (finding an issue
not briefed on appeal is deemed waived).
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                                        6
facility, consistent with this chapter." They contend the DOC's decision to

install the locks and the STU Search Plan Coordinator's directive are invalid

because N.J.A.C. 10:36A-1.5 requires that such actions be adopted and

implemented jointly by the DOC and DMHAS. Appellants argue that since there

is no evidence the DMHAS was involved in the decision to install the locks , the

DOC's actions are invalid under the regulation. We disagree.

      Appellants' contention is founded on a misinterpretation of N.J.A.C.

10:36A-1.5. The regulation requires that the DOC and DMHAS develop and

maintain policies for the operation of the STU, but does not condition the

validity of the actions of either agency upon the involvement or approval of the

other.  N.J.S.A. 10:36A-1.5 requires only that written policies promulgated by

either the DOC or DMHAS be developed and maintained "consistent with"

Chapter 36A of Title 10 of the New Jersey Administrative Code. 4

      The DOC and the DMHAS are vested with separate and distinct

responsibilities under the SVPA. The DOC is "responsible for the operation of

any facility designated for the custody, care and treatment of sexually violent



4
 In accordance with  N.J.S.A. 30:4-27.34(d), the regulations included in Chapter
36A were jointly promulgated by the Commissioner of the DOC and the
Commissioner of Human Services.  38 N.J.R. 1984(a) (May 15, 2006).


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                                       7
predators, and shall provide or arrange for custodial care of persons committed

pursuant to" the SVPA.         N.J.S.A. 30:4-27.34(a).     The DMHAS in the

Department of Human Services "provide[s] or arrange[s] for treatment" of

sexually violent predators civilly committed to the STU under the SVPA.

 N.J.S.A. 30:4-27.34(b). We recognized this division of responsibilities in R.R.

v. New Jersey Department of Corrections,  404 N.J. Super. 468, 476 (App. Div.

2009), observing that the operation of the STU involves two primary objectives;

treatment of sexually violent predators with a goal of rehabilitation and security

concerns after a sexually violent predator has been civilly committed. We

explained that to achieve those goals, the SVPA vests the DOC with the

responsibility for STU security and the Department of Human Services , within

which the DMHAS operates, with the responsibility for treatment of sexually

violent predators. Ibid.

      Chapter 36A distinguishes between the respective responsibilities of the

DOC and the DMHAS in a manner consistent with the express terms of the

SVPA. N.J.A.C. 10:36A-1.1(c) provides that the DOC is responsible for the

"operation of any facility designated for the custody, care control and treatment

of sexually violent predators." N.J.A.C. 10:36A-1.1. provides that the DMHAS




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                                        8
is responsible for "provid[ing] or arrang[ing] for sex offender treatment of

persons committed pursuant to the SVPA."

      Chapter 36A further authorizes "[s]earch[es] of residents and facilities in

order to control and deter contraband,"5       N.J.A.C. 10:36A-1.2(a)(7), and

specifically authorizes the DOC to conduct such searches pursuant to a

comprehensive written search plan, N.J.A.C. 10:36A-4.1(a) to (b). The DOC is

required to appoint a Search Plan Coordinator who is responsible for submitting

reports concerning "searches completed and contraband recovered." N.J.A.C.

10:36A-4.1(d).

      The DOC's decision to install locks on the refrigerators and the Search

Plan Coordinator's written directive is "consistent with" Chapter 36A of Title 10

of the New Jersey Administrative Code, N.J.A.C. 10:36A-1.5, because the DOC

is vested with the responsibility for the security of the STU and the control,

deterrence and recovery of contraband, N.J.A.C. 10:36A-1.1, -1.2(7), and -4.1.

The challenged DOC decision and directive requiring installation of the locks

are grounded in the SVPA and the regulations, and are reasonably designed to

provide a safe and secure STU by deterring and detecting the possession and



 5 N.J.A.C. 10:36A-1.4 includes a comprehensive definition of the term
"contraband."
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distribution of contraband. We therefore discern no basis in the record to

conclude the DOC's final decisions are arbitrary, capricious or unreasonable,

and appellants offer none. See Circus Liquors, Inc.,  199 N.J. at 9-10.

      Affirmed.




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