Opinion
DOCKET NO. A-3570-13T2
01-27-2016
LAWRENCE MCGRIFF, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Lawrence McGriff, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the New Jersey Department of Corrections. Lawrence McGriff, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM
Lawrence McGriff, an inmate at East Jersey State Prison (EJSP), appeals a January 31, 2014 New Jersey Department of Corrections' (DOC) decision denying his request for reinstatement of visitation privileges with his sister, F.G. We remand for further proceedings consistent with this opinion.
We employ initials to protect the privacy of McGriff's sister.
We discern the following facts and procedural history from the record. McGriff is serving a fifty-year sentence with a twenty-five year period of parole ineligibility for aggravated manslaughter, robbery, and weapons possession. In February and March 2012, the Special Investigations Division (SID) at EJSP conducted an investigation and determined that members of McGriff's family, including F.G., received money from another inmate's mother as partial payment of drug debts owed to McGriff.
The record includes the DOC's confidential appendix.
In a March 19, 2012 letter, the DOC informed F.G. that her visitation privileges had been temporarily suspended. The letter did not include a statement of reasons or legal authority for the imposition of the temporary suspension.
On September 29, 2013, McGriff filed an Inmate Remedy System Form (IRF) requesting restoration of F.G.'s visitation privileges. The request was denied on October 8, 2013, and McGriff filed an administrative appeal. On October 21, 2013, the DOC upheld the denial, with the explanation that F.G. was "permanently banned due to a pending criminal matter" and because she had "not complied with a request for an SID interview."
On December 16, 2013, McGriff filed a second IRF requesting that F.G.'s visitation ban be lifted. On January 29, 2014, the Associate Administrator at EJSP issued a decision stating that McGriff's "[r]equest for visitor restoration [is] denied." McGriff filed another administrative appeal. On January 31, 2014, the DOC denied defendant's appeal, stating that the Associate Administrator's denial was "appropriate." The DOC's denial did not include any findings of fact or conclusions of law. This appeal followed.
In his initial brief on appeal, McGriff argues:
POINT ONE
In his reply brief, McGriff argues:APPELLANT WAS DEPRIVED OF HIS DUE PROCESS WHEN HIS VISITING PRIVILEGES WITH HIS SISTER [F.G.] WERE TERMINATED FOR A CHARGE THAT DID NOT CARRY SUCH A SANCTION PURSUANT TO N.J.A.C. 10A:4-5.1, AND WAS NOT A SANCTION IMPOSED BY THE COURT-LINE HEARING OFFICER; AND FURTHER DEPRIVED OF DUE PROCESS AFTER THE APPELLANT SERVED ALL SANCTIONS, MET THE CRITERIA FOR THE REINSTATEMENT OF VISITS, AND THE DEPARTMENT OF CORRECTIONS ARTICULATED NO REASON FOR THE DENIAL OF REINSTATEMENT OF VISITS.
[POINT ONE]
THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE THE DEPARTMENT DECISION DENYING MR. MCGRIFF
VISITING PRIVILEGES WAS ARBITRARY, CAPRICIOUS, BASED ON EVIDENCE NOT SUPPORTED IN THE RECORD, AND THE PERMANENT VISITATION BAN PLACED ON HIS SISTER [FG] IS A VIOLATION OF DEFENDANT[']S EIGHTH AMENDMENT RIGHT.
This court will reverse an agency's final decision only if there is "'a "clear showing" that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]'" In re Pontoriero, 4 39 N.J. Super. 24, 34 (App. Div. 2015) (alteration in original) (quoting Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009)). An action is arbitrary, capricious, or unreasonable if it (1) violates the law, including "express or implied legislative policies," (2) is unsupported by substantial evidence in the record, or (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.'" In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). "[W]e will 'intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
"'[N]o matter how great a deference the court is obliged to accord the administrative determination . . . , it has no capacity to review at all unless . . . the agency has stated its reasons grounded in th[e] record for its action.'" In re Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 173 (1990) (first alteration in original) (quoting State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)). We cannot exercise deference unless we have "confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).
"The requirement of findings is far from a technicality and is a matter of substance. It . . . is a fundamental of fair play that an administrative judgment express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." N.J. Bell Tel. Co. v. Comm. Workers of Am., 5 N.J. 354, 375 (1950) (internal citation omitted).
An administrative agency "'must set forth basic findings of fact, supported by the evidence and supporting'" its determination "'for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result is sufficiently and soundly grounded or derives from arbitrary, capricious or extra-legal considerations.'" Ciba-Geigy Corp., supra, 120 N.J. at 172 (quoting In re Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960)).
McGriff contends the DOC's January 31, 2014 denial of his request for reinstatement of F.G.'s visitation privileges is arbitrary and capricious because it constitutes an unauthorized sanction imposed after he was found guilty in 2012 of engaging in prohibited act .754 under N.J.A.C. 10A:4-4.1(a). He asserts that the hearing officer did not impose the visitation ban on F.G. as a sanction against him for the disciplinary infraction. He also contends, and correctly so, that a visitation ban is not an authorized sanction under N.J.A.C. 10A:4-5.1(b) for the commission of prohibited act .754.
In pertinent part, N.J.A.C. 10A:4-4.1(a) provides that an inmate is subject to disciplinary action and a sanction if he engages in prohibited act numbered .754, which is defined as "giving money or anything of value to, or accepting money or anything of value from, a member of another inmate's family . . . with an intent to circumvent any correctional facility or Departmental rule, regulation or policy or with an intent to further an illegal or improper purpose." --------
In its brief on appeal, the DOC argues F.G.'s visitation ban was not imposed as a sanction against McGriff for his 2012 disciplinary infraction, but instead was imposed directly upon F.G. pursuant to N.J.A.C. 10A:18-6.3(c), which vests the prison's administrator with the authority to ban an inmate's visitors. "Persons determined, by substantial evidence, to have a harmful influence upon the inmate or to constitute a threat to the security of the correctional facility shall be banned" by the administrator from visiting an inmate. N.J.A.C. 10A:18-6.3(c). The ban imposed shall be "for a minimum of 365 days and the visitor shall be required to apply in writing to the Administrator for approval/disapproval of the reinstatement of the visit privileges." Ibid.
A resolution of the parties' conflicting contentions cannot be made based upon the record before us. The DOC's January 31, 2014 denial of McGriff's request for reinstatement of F.G.'s visitation privileges lacks the requisite findings of fact and conclusions of law essential to appellate review. Ciba-Geigy Corp., supra, 120 N.J. at 173.
The record does not allow us to ascertain the factual and legal basis upon which the suspension was initially imposed, and has been continued. The initial visitation ban was imposed in the DOC's March 19, 2012 letter to F.G., which stated only that her visiting privileges were temporarily suspended. The letter, however, did not include a statement of reasons and did not indicate whether the suspension was imposed as a sanction against McGriff, was based upon N.J.A.C. 10A:18-6.3(c), or was founded upon other legal authority.
In its October 21, 2013 denial of McGriff's initial request for reinstatement of F.G.'s privileges, the DOC indicated that F.G. was permanently banned from visitation "due to a pending criminal matter" and because she had not "complied with" a request for an interview with the SID. In its brief here, the DOC relies upon this statement of reasons as the basis for the January 31, 2014 denial which is the subject of this appeal.
Again, the record does not permit our reliance upon those reasons as a basis for the January 31, 2014 denial. The January 31, 2014 denial does not make reference to, or incorporate, the reasons contained in the October 21, 2013 denial, and the arguments of counsel in the DOC's brief do not create an evidentiary record we may properly consider on appeal. See Baldyga v. Oldman, 261 N.J. Super. 259, 265 (App. Div. 1993) ("The comments following [Rule 1:6-6] illustrate that its purpose is to . . . eliminate the presentation of facts which are not of record by unsworn statements of counsel made in briefs and oral arguments.") (citing Pressler, Current N.J. Court Rules, comment 1 on R. 1:6-6 (1992)).
In addition, we are convinced the reasons set forth in the DOC's October 21, 2013 denial do not have evidentiary support in the record. There is no evidence as to when or why the DOC took action to transform the March 19, 2012 temporary suspension of F.G.'s visitation privileges into a permanent ban. There is nothing in the record supporting the DOC's finding that F.G. had a "pending criminal matter" or had failed to respond to a request for a SID interview subsequent to the imposition of the temporary ban. Even assuming the reasons contained in the DOC's October 21, 2013 rejection of McGriff's request provided the basis for the January 31, 2014 denial, the record does not permit a determination that the DOC's reasons are supported by substantial credible evidence.
The DOC's January 31, 2014 denial of McGriff's request for reinstatement of F.G.'s visitation privileges is unencumbered by findings of fact or conclusions supporting its determination. A "reasoned explanation [for the determination] based on specific findings of basic facts" is required. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989). We are unable to determine whether the DOC's January 31, 2014 denial is arbitrary, capricious, or unreasonable, or lacks fair support in the record, because the DOC failed to make the findings of fact and conclusions of law essential for proper appellate review. "When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency." Ciba-Geigy Corp., supra, 120 N.J. at 173.
Because we remand the matter for further proceedings, it is unnecessary to address McGriff's remaining arguments.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION