Montague v. N.J. Dep't of Corr.

• Decision Date: 25 October 2019
• Docket Number: DOCKET NO. A-4889-17T1
• Parties: ARTHUR MONTAGUE, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
• Court: New Jersey Superior Court — Appellate Division

ARTHUR MONTAGUE, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

DOCKET NO. A-4889-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted October 7, 2019

October 25, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino and Natali.

On appeal from the New Jersey Department of Corrections.

Arthur Montague, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Suzanne Marie Davies, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Arthur Montague appeals from a May 22, 2018 final agency decision of the New Jersey Department of Corrections (NJDOC) that continued his designation as a high risk inmate. After considering the parties' arguments in light of the record on appeal and the applicable legal principles, we vacate and remand for further proceedings.

I.

Appellant is currently incarcerated at New Jersey State Prison (NJSP) in Trenton. On January 2, 2014, he was discovered with "two . . . homemade handcuff keys sewn into the cuff of his thermal undershirt" while he was being processed for a court appearance. As a result, the NJDOC found appellant guilty of prohibited acts *.803, "attempting to commit, aiding another person to commit or making plans to commit any Category A and or B offense," and *.102, "attempting or planning escape," contrary to N.J.A.C. 10A:4-4.1. In addition, the NJDOC High Risk Inmate Designation Committee (HRIDC) designated appellant as a high risk inmate.

From November 2017 through March 2018, appellant sought removal of his high risk designation to effectuate a transfer from Trenton to East Jersey State Prison (EJSP) in Rahway to be closer to his family, and to participate in rehabilitative programs. The NJDOC informed appellant that a meetingregarding his high risk designation would "take place at the end of January [2018]." On March 4, 2018, NJDOC notified appellant that his designation was "reviewed by the . . . Committee and the decision notices [would] be sent out by institutional mail." There is nothing in the record detailing the results of the HRIDC's review as it relates to appellant's requests.

On May 3, 2018, appellant filed a grievance pursuant to N.J.A.C. 10A:1-4.5, challenging his continued high risk designation on the grounds that the NJDOC's high risk policy was not promulgated as a regulation under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31. The next day, Major Craig Sears informed appellant that he would "remain on [h]igh [r]isk status until deemed otherwise by a committee." Sears further advised appellant that he was still classified as high risk because he "repeatedly assaulted correctional staff and [had] attempted escape . . . [by] alter[ing] clothing and . . . possess[ing] implements to escape."

Appellant responded to Sears on May 17, 2018, and stated that he never "assault[ed] [any] correctional staff . . . and it [was] not on [his] record, [and neither were] any other assaults . . . ." Further, appellant restated his claim that the NJDOC's high risk policy required promulgation under the APA because (1) the policy "applie[d] to all inmates in correctional facilities"; (2) the policy [had]no exceptions; (3) the policy "could not possibly [have been] applied to reach back in time"; (4) "the [Committee's] restriction [was] not inferable on any basis other than the breadth of the Commissioner's discretion to operate the correctional facility"; and (5) "the [high risk policy] . . . involve[d] an exercise of the Commissioner's discretion and expertise." Five days later, on May 22, 2018, Assistant Superintendent Amy Emrich, according to the NJDOC, "upheld the decision," and informed appellant that his case would be "routinely reviewed by the [Committee] and given consideration . . . [and he would] be notified via institutional mail of the decision rendered."¹ This appeal followed.

Appellant raises two primary arguments on appeal. First, he maintains that the NJDOC policy that classifies an inmate as high risk constitutes improper rulemaking, contrary to the APA and, thus, his designation as a high risk inmate is unenforceable. Second, he argues that the NJDOC's May 22, 2018 decision was not supported by substantial credible evidence in the record because he never "assaulted correctional staff."

Initially, we note that in his reply brief, appellant also asserts that: 1) the NJDOC improperly refused to transfer him to a less secure prison based on his high risk classification, and his classification has negatively affected his desire to transfer to EJSP and participate in certain programs, contrary to his liberty interests as defined by the United States Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995); and 2) the NJDOC arbitrarily and capriciously designated him a high risk inmate by denying his request for an administrative hearing to "confront, challenge, and present any evidence [as to] why he should or should not be placed on [or removed from] [h]igh [r]isk." We do not consider these arguments as they are improperly raised for the first time in a reply brief. See State v. Smith, 55 N.J. 476, 488 (1970) (declining to consider a reply brief argument "enlarg[ing] on [defendant's] main argument and attack[ing] an additional evidential ruling of minor nature"); Bacon v. N.J. Dep't of Educ., 443 N.J. Super. 24, 38 (App. Div. 2015) ("By failing to raise their original jurisdiction argument in their initial brief, plaintiffs have waived this contention.").

We note, however, that in Szemple v. Dep't of Corr., 384 N.J. Super. 245 (App. Div. 2006), we held that a high risk designation, which "merely subject[s] [an inmate] to increased security in the form of additional prison guards . . .when he is escorted from the prison" does not constitute the type of "atypical and significant" scrutiny that triggers an inmate's liberty interest and requires a hearing. Id. at 251.

Further, no decision from the NJDOC Institutional Classification Committee (ICC), which possesses the requisite authority to effectuate inmate transfers and program assignments, is before us and nothing in the record establishes that appellant sought to effectuate a transfer through the ICC.² Rather, the May 22, 2018 final decision addressed only the HRIDC's decision to maintain appellant as a high risk inmate. Finally, as detailed infra at pp. 10-13, we are remanding the matter for the NJDOC to more thoroughly explain and amplify its bases for maintaining appellant's high risk designation.

II.

The scope of our review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or . . . is not supported by substantialcredible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

III.

With respect to appellant's first point, we initially note that he has not included in the record on appeal an actual copy of the policy that he maintains constitutes improper rulemaking, and we could reject appellant's first argument on that basis alone. He does, however, acknowledge the existence of such a policy. Indeed, in appellant's appendix, he provides a January 24, 2008 memorandum from the Deputy Attorney General referencing "Standard Operati[ng] [Procedure] [No.] 437," which allegedly "sets forth the purpose of the [h]igh [r]isk designation" and includes procedures that the NJDOC staff should follow relating to high risk placement, as well as "factors to be considered" in designating an inmate as high risk. We accordingly glean from the record and the parties' arguments the existence of the policy and the fact thatthe HRIDC applies the operating procedure in determining whether or not to designate an inmate as high risk.

"The APA defines an administrative rule as an agency's 'statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements' of the agency." In re Authorization for Freshwater Wetlands Statewide Gen. Permit 6, 433 N.J. Super. 385, 413 (App. Div. 2013) (quoting N.J.S.A. 52:14B-2(e)). The New Jersey Supreme Court has identified six factors to assess whether an agency engaged in improper rulemaking contrary to the APA's requirements. Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 (1984).

In accordance with Metromedia, a court should examine if the policy:

(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate . . . prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the

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