A Pro Se Prisoner Invalidates the Department of Corrections’s Outbound Calling Policy, But …

Grimes v. New Jersey Dep’t of Corrections, ___ N.J. Super. ___ (App. Div. 2017).  This appeal, decided today, had two unusual wrinkles, apart from its substantive outcome.  First, a pro se prisoner plaintiff prevailed over a government agency.  Second, a published opinion was issued per curiam, instead of being signed.  The panel consisted of Judges Messano, Suter, and Grall.

The issue revolved around a “calling policy,” applicable to all correctional facilities, that “[for] security reasons,” forbids inmates to make telephone calls to “cellular, business, or non-traditional telephone service numbers.”  The calling policy “is not codified in statute or regulation.”  In part because of that, the policy was described inconsistently in different places, and there was even doubt as to when the calling policy went into effect.

Plaintiff, an inmate at the New Jersey State Prison, has relatives who all live in other states.  They all have cellphones only, due in part to the expense of maintaining both cell and landline phones.  Plaintiff challenged the calling policy as violative of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. (“APA”), and the First and Fourteenth Amendments to the United States Constitution.  Given the public importance of the APA claim, the panel addressed it even though plaintiff raised it for the first time in his reply brief on appeal.  The court found, however, that the record was insufficiently developed to allow a decision on the constitutional issues.

The APA issue, however, was sufficient for plaintiff to prevail.  Applying the six-factor test of Metromedia, Inc. v. Dir. Div. of Taxation, 97 N.J. 313 (1984), the panel concluded that the calling policy should have been the subject of formal rulemaking.

But that did not end the matter.  The panel still had to decide whether the calling policy was exempt from the APA as either “concerning the internal management or discipline” of the Department of Corrections or an “intra-agency” statement.  The calling policy did not fall under either exception.  Though it concerns inmates, its impact falls directly on numerous persons outside prison:  the persons whom inmates seek to call.  The policy thus did not relate to “internal management” or constitute an intra-agency statement.

The calling policy was thus found wanting because required rulemaking procedures were not followed.  But the panel recognized that “immediate invalidation would disserve the important institutional, public and personal interest implicated” in the case.  Accordingly, the Appellate Division left the calling policy in place while remanding for “prompt commencement of rulemaking.”

 

 

 

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