Opinion
DOCKET NO. A-1399-12T4 DOCKET NO. A-2473-12T4
10-30-2015
STEVEN KADONSKY, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Steven Kadonsky, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol and Erin M. Greene, Deputy Attorneys General, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the New Jersey Department of Corrections. Steven Kadonsky, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol and Erin M. Greene, Deputy Attorneys General, on the briefs). The opinion of the court was delivered by OSTRER, J.A.D.
Steven Kadonsky is a "jailhouse lawyer." Kadonsky appeals from two disciplinary decisions of the Department of Corrections that arose out of his legal assistance of other prisoners. In A-1399-12, he appeals from a single finding that he possessed contraband, specifically, reports of the Special Investigations Division (SID). The reports pertained to a lawsuit filed on behalf of six inmates at the Edna Mahon Correctional Facility for Women (EMCFW) against certain corrections officers and other officials. In A-2473-12, he appeals from a decision finding him guilty of charges that he accepted money or value for his legal work and engaged in unauthorized use of mail or telephone. All of the infractions on appeal are non-asterisk prohibited acts.
We consolidate the appeals, which were scheduled back-to-back, solely for the purposes of this opinion.
Department Inmate Disciplinary Regulations classify "asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1; see also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).
Kadonsky challenges the legal and factual bases for the findings of guilt and asserts for the first time on appeal that the charges were brought to retaliate against him for assisting the EMCFW inmates. Having reviewed Kadonsky's arguments in light of the record and applicable principles of law, we reverse the finding of guilt in A-1399-12; we affirm in part and reverse in part the findings of guilt in A-2473-12, and remand for reconsideration of the sanction.
I.
We discern the following facts from the record. At all relevant times, Kadonsky was incarcerated in the New Jersey State Prison (NJSP). He is serving a life sentence, with a twenty-five-year mandatory minimum term, on a conviction for leading a narcotics trafficking network, N.J.S.A. 2C:35-3.
Kadonsky is involved in the representation of the plaintiffs in Afdahl v. Melgar, No. HUN-L-466-12 (Law Div. filed July 23, 2012), an ongoing multi-plaintiff civil rights action brought by six EMCFW inmates. As discussed below, he entered into so-called "distribution agreements" with all six plaintiffs, who agreed to share a portion of any recovery with him. Although the exact nature of Kadonsky's legal assistance to the women is unclear from the record on appeal, we note he has filed papers in the case, and has communicated with private attorneys who are formally representing the plaintiffs.
Automated Case Management System (ACMS) records of Afdahl include Kadonsky in the case attorney list, denominating him pro se, although the plaintiffs are also represented by law firms. ACMS also indicates that Kadonsky has filed papers in the case.
It is undisputed that Kadonsky possessed two SID reports that were obtained in discovery in the Afdahl case. One of the outside attorneys wrote to the NJSP administrator to explain that "[t]he SID report was obtained in anticipation of the [Afdahl] lawsuit." The attorney sent the document to Kadonsky at the Afdahl plaintiffs' request. Kadonsky stated he received the documents as legal mail in June 2012. He asserts that he sent copies of the document to the Attorney General's Office, which represents multiple defendants in Afdahl.
The record is unclear on whether Kadonsky possessed two copies of the same report, or two different reports. Neither party has included the report(s) in the record on appeal.
The documents were seized on October 18, 2012, and on November 2, 2012, Kadonsky was charged with prohibited act .210, barring "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels." Kadonsky argued he possessed the SID reports in connection with his legal assistance of the Afdahl plaintiffs and that an outside attorney sent the documents to him. He also contended the prison official who searched his legal mail reviewed the SID documents and then gave them to Kadonsky. He argued this indicated his possession was permitted and that he was not notified in advance he could not possess the documents.
The prohibited acts are listed in N.J.A.C. 10A:4-4.1(a). For convenience, we will simply refer to the prohibited act numbers.
The hearing officer rejected these arguments. The record included written answers by a SID Officer to questions posed by Kadonsky. In response to multiple questions as to the source of the allegation that his possession of the SID report was prohibited, the officer referred to an "AG's letter" and an apparent communication from a deputy attorney general. No specific regulation was cited. Relying on this officer's testimony, the hearing officer, in a November 15, 2012 decision, found that Kadonsky was not entitled to possess discovery in Afdahl because he was not a party to the lawsuit. The hearing officer imposed a sanction of fifteen days detention; ninety days administrative segregation and sixty days loss of commutation time, both suspended for sixty days.
A week after the hearing officer found Kadonsky guilty of the .210 prohibited act, additional charges were filed. Kadonsky was charged with: six counts each of "giving money or anything of value to, or accepting money or anything of value from, another inmate," prohibited act .752, and attempting to do so, prohibited act .802; "unauthorized use of mail or telephone," prohibited act .701; two counts of "accepting money or anything of value from a member of another inmate's family or another inmate's friend 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," prohibited act .754; and "commencing or operating a business or group for profit . . . without the approval of the Administrator," prohibited act .705.
.802 provides that "attempting to commit any of the above acts, aiding another person to commit any of the above acts or making plans to commit any of the above acts shall be considered the same as a commission of the act itself."
The charges were embodied in multiple disciplinary reports, all issued on the same day.
The six counts of .752/.802 were based on the "distribution agreements" that each Afdahl plaintiff entered into with Kadonsky in September 2012. Each plaintiff promised Kadonsky ten percent of her net recovery. If an attorney handled the case on a contingency basis, his recovery would be based on the net recovery to plaintiffs. Kadonsky argued unsuccessfully that the agreements were unenforceable, and unlikely to produce any recovery in any event.
Kadonsky allegedly committed the .701 violation when an investigator monitoring his calls discovered that he called "several numbers on his Pin list and ha[d] the intended caller facilitate three way calls on a regular basis." It was also alleged that Kadonsky assisted in placing three-way calls for another inmate. The hearing officer sustained the charge, noting that it was supported by a recording in which Kadonsky identified himself and asked the person he called to call a third person. The hearing officer rejected Kadonsky's argument that the calls were placed by utilizing speaker phones, as opposed to actual three-way calling. The hearing officer found, "[I]nmate is still circumventing the system designed to monitor numbers being called."
With respect to the .754 charges, it was alleged that Kadonsky prepared a post-conviction relief petition for another inmate, James Roberts. It was undisputed that Roberts sent $700, in two checks, to a friend of Kadonsky outside prison named Al Stuart. Kadonsky argued Roberts had offered to pay him significantly more for his work; Kadonsky refused, but Roberts insisted on paying him something. So, Kadonsky admitted, "I told him my friend is sick and if he wants to send him something, that's on Roberts, but I will do the legal work at no charge." Based on Kadonsky's work in Afdahl and for Roberts, he was also charged with the .705 violation.
After a hearing, Kadonsky was found guilty of these charges, and the Administrator affirmed the findings. On each of the six .752/.802 violations, Kadonsky received ninety days administrative segregation and sixty days loss of commutation time, to run consecutively, for a total of 540 days of administrative segregation and 360 days of loss of commutation time. For the .701 charge, he received ninety days of administrative segregation, sixty days loss of commutation time, and loss of telephone privileges for one year, also consecutive. On the two .754 charges related to his legal work for Roberts, he received fifteen days of detention with credit for time served, plus two consecutive terms of ninety days administrative segregation and sixty days loss of commutation time, all consecutive to the other sanctions. No additional sanction was imposed for the .705 violation.
Thus, Kadonsky's aggregate sanction for these multiple violations was: fifteen days detention, 810 days administrative segregation, 540 days loss of commutation time, and one year's loss of telephone privileges. Adding in the sanction imposed for the .210 violation, the total aggregate sanction was fifteen days detention; 900 days administrative segregation; 600 days loss of commutation time; and loss of telephone privileges for a year.
Kadonsky filed a notice of appeal in A-1399-12 from the finding of the .210 violation in November 2012, alleging that the agency refused to consider his administrative appeal. We granted his motion for a stay of the sanction pending appeal. In May 2013, the administrator agreed to consider a late appeal, and affirmed the hearing officer's decision. The administrator explained that the SID reports contained inmate and staff information, and Kadonsky was not authorized to possess them "as you are not the attorney of record, nor do you have Administrative permission to conduct a business or provide legal assistance to any inmate." The administrator increased the loss of commutation time to ninety days, suspended for sixty days, and modified the fifteen days detention to "[c]redit time served."
We make no finding that he in fact filed a timely administrative appeal. We note that his notice of appeal was dated November 14, 2012, the day he claims the hearing officer rendered the decision. He provides no copy of the administrative appeal that was allegedly ignored.
Kadonsky filed a separate appeal, A-2473-12, from the decision in the case involving the subsequent multiple charges.
II.
Kadonsky presents the following points on appeal; the first two relate to A-1399-12, and the remainder to A-2473-12.
I. THE .210, POSSESSION OF CONTRABAND CHARGE, THE SUBJECT OF THIS APPEAL AGAINST APPELLANT STEVEN KADONSKY[,] MUST BE VACATED AS THE S.I.D. REPORT WAS SENT TO HIM THROUGH AUTHORIZED CHANNELS, A PRISON OFFICIAL REVIEWED THE DOCUMENT AND DEEMED IT NOT CONTRABAND AND GAVE IT TO HIM AND HE HAD NO PRIOR NOTICE THE POSSESSION OF THE S.I.D. REPORT WAS [AN] ACT IN VIOLATION OF HIS DUE PROCESS RIGHTS.
II. THE .210, POSSESSION OF CONTRABAND CHARGE, THE SUBJECT OF THIS APPEAL MUST BE DISMISSED AT THIS TIME DUE TO EXTREME AND DIRECT RETALIATION AGAINST APPELLANT FOR HELPING SIX FEMALE PRISONERS CONFINED AT THE
EMCFW SUE THE DEPARTMENT AND AN S.I.D. OFFICER, OR IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED FOR A HEARING REGARDING THE RETALIATION.
III. THE ELEVEN CHARGES SUBJECT TO THIS APPEAL MUST BE DISMISSED AT THIS TIME DUE TO EXTREME AND DIRECT RETALIATION AGAINST APPELLANT FOR HELPING SIX FEMALE PRISONERS CONFINED AT THE EMCFW SUE THE DEPARTMENT OF CORRECTIONS AND AN S.I.D. OFFICER, OR IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED FOR A HEARING REGARDING THE RETALIATION.
IV. THE SIX 802/752 CHARGES FOR ATTEMPTING TO ACCEPT ANYTHING OF VALUE MUST BE DISMISSED, AS THERE WAS NOTHING OF VALUE THAT APPELLANT COULD HAVE ATTEMPTED TO [RECEIVE].
V. THE .701 CHARGE FOR UNAUTHORIZED USE OF THE TELEPHONE MUST BE DISMISSED AS THE ACTIONS OF APPELLANT WERE NOT LISTED AS UNAUTHORIZED CONDUCT IN ANY PRISON INSTITUTIONAL MANUAL OR MEMORANDUM AND NEVER POSTED FOR INMATES TO SEE AT ANYTIME.
VI. THE TWO .754 INSTITUTIONAL CHARGES FOR ACCEPTING ANYTHING OF VALUE MUST BE VAC[]ATED AT THIS TIME AS APPELLANT NEVER RECEIVED ANYTHING OF VALUE.
VII. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS DENIED THE ABILITY TO PRESENT AND INTERVIEW WITNESSES AT THE COURTLINE HEARING.
III.
A.
Our standard of review is well-settled. We will disturb a disciplinary decision of the Department only upon a finding that the decision is "arbitrary, capricious or unreasonable," or is unsupported "by substantial credible evidence in the record as a whole." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010).
In determining whether an agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:
"(1) [W]hether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether 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."Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing a reasonable basis for the agency's action." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (internal quotation marks and citations omitted).
[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Tr., 143 N.J. 22, 25 (1995)).]
We defer to the agency's fact-finding and give some deference to the agency's interpretation of regulations that are "'within its implementing and enforcing responsibility.'" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We do so in part because the agency that drafted and promulgated the rule should know its meaning. Essex Cty. Bd. of Taxation v. Twp. of Caldwell, 21 N.J. Tax 188, 197 (App. Div.) (citation omitted), certif. denied, 17 6 N.J. 426 (2003). We also may choose to defer "when the agency's interpretation is grounded in its technical or specialized expertise." L.C. v. Bd. of Review, Dep't of Labor, 439 N.J. Super. 581, 591 (App. Div. 2015) (citing In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)). However, "[a]n appellate tribunal is . . . in no way bound by the agency's . . . determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Thus, we may intervene when an agency's decision rests upon a misinterpretation of a regulation. See Mazza, supra, 143 N.J. at 25.
We are also mindful that the Department has "broad discretionary powers" to promulgate regulations governing correctional facilities. See Jenkins v. Fauver, 108 N.J. 239, 252 (1987). We have noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
Nonetheless, administrative regulations must be "sufficiently definite" to provide notice to those governed by them. In re Health Care Admin. Bd., 83 N.J. 67, 82, cert. denied, 449 U.S. 944, 101 S. Ct. 342, 66 L. Ed. 2d 208 (1980). "Notice of conduct that is prohibited is a basic component of due process and fundamental fairness in prison disciplinary proceedings." Jenkins, supra, 412 N.J. Super. at 251 (citation omitted) (rejecting vagueness challenge to disciplinary regulation). "The test is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties." In re DeMarco, 83 N.J. 25, 37 (1980) (construing statute authorizing Board of Medical Examiners to impose penalties for violating provision of regulatory law); see also Jenkins, supra, 412 N.J. Super. at 252 ("Therefore, in analyzing the clarity of the regulation, it is expected that a person of ordinary intelligence who is affected by the standard will use common sense and be guided by principles applicable to the context." (citations omitted)).
In interpreting a regulation, we look to the same canons of construction that apply to statutes. Essex Cty. Welfare Bd. v. Klein, 149 N.J. Super. 241, 247 (App. Div. 1977). We look first to the regulation's plain language. Cruz-Diaz v. Hendricks, 409 N.J. Super. 268, 275-76 (App. Div.) (stating that court, when interpreting regulations, must consider plain meaning of the language used, assuming the drafter meant to ascribe to the words their ordinary meaning), certif. denied, 200 N.J. 548 (2009). If there is ambiguity, we endeavor to construe the regulation to implement the apparent intent or purpose of its adoption. Seacoast Builders Corp. v. Jackson Twp. Bd. of Educ., 363 N.J. Super. 373, 378-79 (App. Div. 2003) (where regulation is ambiguous and court is unassisted by prior history of agency construction, "the key to decision lies in the public policy" underlying the regulation). Where ambiguity remains, we should construe the disciplinary provision strictly, given the penal consequences of violation. See State Bd. of Med. Exam'r of N.J. v. Warren Hosp., 102 N.J. Super. 407, 414-17 (Cty. Ct. 1968) (strictly construing provision authorizing civil penalties for violation of medical licensing law, N.J.S.A. 45:9-22), aff'd o.b., 104 N.J. Super. 409 (App. Div.), certif. denied, 54 N.J. 100 (1969); see also 3 Sutherland Statutory Construction § 59:1 (7th ed. 2008) ("If there is some sanction in the statute to compel obedience beyond mere redress to an individual for injuries received, the statute is penal.").
To enable us to exercise review, the agency must provide a reasonable record and statement of its findings. Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 63 (App. Div.), certif. denied, 162 N.J. 196 (1999). "No matter how great a deference we must accord the administrative determination, we have no capacity to review the issues at all unless there is some kind of reasonable factual record developed by the administrative agency and the agency has stated its reasons with particularity." Ibid. (internal quotation marks and citation omitted). "[W]e insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003); see also N.J.A.C. 10A:4-9.15 (stating that a hearing officer shall specify, on an adjudication form, the evidence relied upon in making a finding of guilt after a disciplinary hearing).
Finally, a reviewing court "may not substitute its own judgment for the agency's, even though the court might have reached a different result." In re Stallworth, 208 N.J. 182, 194 (2011) (internal quotation marks and citation omitted). Yet, our review is not "perfunctory," nor is "our function . . . merely [to] rubberstamp an agency's decision[.]" Figueroa, supra, 414 N.J. Super. at 191. "[R]ather, our function is to engage in a careful and principled consideration of the agency record and findings." Ibid. (internal quotation marks and citation omitted).
B.
Applying these principles, we find an insufficient legal basis for the finding that Kadonsky committed prohibited act .210. It is undisputed that Kadonsky possessed the SID reports. Moreover, it is undisputed that Kadonsky received them from an outside attorney. The allegation pertains not to the method by which Kadonsky obtained the documents, but to his possession of them.
We note at the outset that neither the hearing officer's decision, nor the administrator's decision on the administrative appeal, identified a rule or regulation prohibiting Kadonsky from possessing the SID reports. To establish a violation, the Department must establish that the documents were contraband in the first place, that is, they were "not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels." N.J.A.C. 10A:4-4.1(a).
On appeal, the Department relies on N.J.A.C. 10A:22-2.3(a)(2) and -2.3(b) for the proposition that the documents were contraband. We are unpersuaded.
N.J.A.C. 10A:22-2.3(a) was adopted pursuant to the Department's authority under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, specifically N.J.S.A. 47:1A-1, to exempt certain government records from public access. N.J.A.C. 10A:22-2.3(a)(2) simply provides that "Special Investigations Division investigations records and reports" are exempt under OPRA, if "redaction of information would be insufficient to protect the safety of any person or the safe and secure operation of a correctional facility." The provision does not prohibit an inmate from possessing a SID report if obtained through other means — such as through civil discovery.
The Department does not dispute that the document was produced in discovery, nor does the Department contend that the document was subject to a protective order limiting its release.
N.J.A.C. 10A:22-2.3(b) states, "[A]n inmate shall not be permitted to inspect, examine or obtain copies of documents concerning any other inmate." The provision was adopted as part of the agency's proposal of OPRA regulations. See 42 N.J.R. 2305(a) (Oct. 4, 2010); 43 N.J.R. 308(a) (Feb. 7, 2011). Thus, it is reasonable to interpret the regulation to be directed toward requests by inmates, under OPRA, to inspect or examine documents in the Department's possession pertaining to fellow inmates.
The regulation does not directly address possession by one inmate of documents pertaining to another. Consistent with the principles set forth above, we shall not construe it broadly to do so.
Moreover, the regulation does not address an inmate's possession of documents pertaining to another inmate with that other inmate's permission. Department regulations authorize an inmate to obtain legal assistance from any other inmate. N.J.A.C. 10A:6-2.14(a) ("Nothing contained in this subchapter shall preclude an inmate from obtaining legal assistance from any other inmate, except that only [paralegal inmates] . . . [w]ill be granted access to Close Custody Units; and . . . [m]ay act as a counsel substitute at disciplinary and other correctional facility hearings."). Implicit in the authority to seek legal assistance from another inmate is the authority to share one's legal documents with the assisting inmate.
In sum, we discern insufficient basis in the Department's regulations for the finding that Kadonsky's possession of the SID reports was prohibited.
C.
We consider next the several charges filed against Kadonsky on November 22, 2014, which are the subject of A-2473-12. We address first whether the charges are supported by the law and evidence, and then consider Kadonsky's claim of retaliation.
Having carefully reviewed the record, we find that each finding is supported by substantial, credible evidence in the record, except for the .754 charges involving legal work for inmate Roberts.
At the very least, the six distribution agreements support the Department's finding that Kadonsky attempted, in violation of .802, to "accept[] money or anything of value from[] another inmate", as proscribed by .752. Kadonsky's contention that the agreements were unenforceable or unlikely to produce a recovery is of no import as it relates to the attempt charge. Kadonsky's claim that he expected no recovery or remuneration is also belied by a boast that he made in a letter to the judge in Afdahl that he has "been representing plaintiffs on lawsuits against these Defendants for almost 20 years with seven digit awards to various plaintiffs."
Also lacking merit is Kadonsky's argument that the three-way calling was not clearly proscribed. In his brief, Kadonsky asserts that the three-way call involved Al Stuart, the same friend who received payment for Kadonsky's work on PCR petitions for inmate Roberts. Kadonsky contends that during a call to Stuart, Stuart's wife happened to call in on a cell phone; Stuart then placed her on a speaker phone, so Kadonsky could converse with her.
We are unpersuaded. Kadonsky's factual argument does not undermine the finding that Kadonsky called "several numbers on his PIN list and ha[d] the intended caller facilitate three way calls on a regular basis." The hearing officer relied on recordings that she determined supported the charge. As the recordings were not included in the record before us, Kadonsky provides no basis for us to evaluate the proofs. See R. 2:6-1(a)(1) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues").
We are also satisfied that the NJSP Inmate's Handbook put Kadonsky on sufficient notice that three-way calling was prohibited. The handbook expressly limits a prisoner to a call list of ten friends or family members, who are subject to prior approval. The handbook states that "[i]f the party attempts a three-way call or to transfer the call at any time, the system will automatically end the call." The evidence supported the finding that Kadonsky intentionally evaded this system by asking the person he called to place Kadonsky's call on a speaker phone, then place a second call on a different line on a speaker phone, enabling Kadonsky to communicate with the third person.
Turning to the .754 charges, Kadonsky renews the factual arguments he presented to the agency that he did not accept any money or thing of value from inmate Roberts. Although we find these arguments unpersuasive, we nonetheless reverse the findings of guilt on different grounds.
The regulation requires that the money or thing of value be given to, or "accept[ed] . . . from a member of another inmate's family or another inmate's friend," with the intent to circumvent applicable rules, or to "further an illegal or improper purpose." .754. With respect to both charges, the agency's decision states that Roberts himself sent money to Kadonsky's friend, Al Stuart. There is no evidence in the record on appeal that a friend or family member of Roberts, and not Roberts himself, sent the money. Therefore, there was insufficient evidence to support the finding that Kadonsky accepted money or anything of value "from a member of another inmate's family or another inmate's friend." Nor did Kadonsky give money to "another inmate's friend."
Finally, the finding that Kadonsky violated .705 was supported by his legal work for the six Afdahl plaintiffs.
D.
We turn to Kadonsky's argument that all the charges presented in these appeals should be dismissed because they were motivated by retaliatory animus. He raises this argument for the first time on appeal.
In brief, Kadonsky argues that the charges were prompted by his activities on behalf of the Afdahl plaintiffs. He asserts that he was responsible for filing the initial notice of tort claim on behalf of the plaintiffs. He claimed that SID officers met with him on October 19, 2012 — the day after the SID reports were seized from his cell along with other papers — and "made it clear that if [he] continue[d] to help the girls, 'there will be a price to pay.'" Kadonsky asserted that the filing of the .210 charge coincided with his filing of papers in the Afdahl case and that the second set of charges were issued the same day the court issued rulings unfavorable to the Afdahl defendants. Kadonsky contends that his documents were seized at the suggestion of the deputy attorney general (DAG) whom the SID officer identified in his answers to Kadonsky's pre-hearing questions.
There is no record evidence that the DAG prompted the seizure and disciplinary action, as opposed to merely responding to a request for advice after the SID reports had already been seized.
Aside from a conclusory denial, the Department does not respond to Kadonsky's factual allegations, nor does it address the legal significance of retaliatory motive if it were proved. Instead, the Department argues that we should decline to address the retaliation claim because it was not presented to the agency during the disciplinary proceeding.
We disagree. "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) (internal quotation marks and citation omitted). This principle applies to our review of appeals from administrative agency decisions. See, e.g., ZRB, LLC v. N.J. Dep't of Envir. Prot., 403 N.J. Super. 531, 536 n.1 (App. Div. 2008).
We find that the alleged abuse of the Department's power is a matter of sufficient public interest, particularly inasmuch as alleged retaliation in this case indirectly implicates the interests of the Afdahl inmates Kadonsky is assisting. We therefore choose to decide whether Kadonsky has an affirmative defense of retaliation to the disciplinary charges. Our decision on this issue turns on the sufficiency of the evidence supporting Kadonsky's findings of guilt, for which there is already a complete factual record. Factual support for a disciplinary charge, which an inmate alleges was prompted by retaliatory motive, may doom the retaliation claim, in cases where the inmate seeks redress under 42 U.S.C.A. § 1983. "Even if prison officials were motivated by animus to jailhouse lawyers, [the inmate's] offenses, such as receiving stolen property, were so clear and overt that we cannot say that the disciplinary action taken against [the inmate] was retaliatory." Carter v. McGrady, 292 F.3d 152, 158-59 (3d Cir. 2002) (affirming summary judgment for defendant where plaintiff alleged retaliation for his legal activities, but record established that plaintiff obtained typewriter by theft, made unauthorized use of mails, and created a fire hazard); see also Moore v. Plaster, 266 F.3d 928, 931 (8th Cir. 2001) (although recognizing a cause of action "where a prison official files disciplinary charges in retaliation for the inmate's exercise of his constitutional rights . . . claims of retaliation fail if the alleged retaliatory conduct violations were issued for the actual violation of a prison rule"); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (stating that a prisoner's retaliation claim fails as a matter of law, even if the defendants actually retaliated against protected conduct, if there were "proper, non-retaliatory reasons for his punishment").
We find persuasive the approach taken by these federal courts and hold that an inmate may not defend a non-trivial disciplinary charge based on an affirmative defense of retaliation where the evidence establishes there were "proper, non-retaliatory reasons for" the disciplinary prosecution. Graham, supra, 89 F.3d at 79. Cf. Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (holding that "falsifying misconduct reports in retaliation for an inmate's resort to legal process is a violation of the First Amendment's guarantee of free access to the courts."). As we have already found that the evidence supported the finding that Kadonsky committed prohibited acts .752/802, .701, and .705, his retaliation defense fails.
E.
That is not to say, however, that the Department was free to retaliate with respect to the punishment it meted out to Kadonsky. Retaliation can come in two forms: the agency bringing disciplinary charges for retaliatory reasons, or its imposing disproportionately harsh sanctions after a finding of guilt. Cf. De Cinto v. Westchester Cty. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (in the Title VII context, an employer can be liable for retaliation even if the discharged employee was guilty of misconduct, but was punished more harshly than employees who engaged in similar misconduct).
In this case, the agency imposed the maximum allowable term of administrative segregation and loss of commutation time for each prohibited act. See N.J.A.C. 10A:4-5.1(b)(3) (stating that a non-asterisk offender may receive "[u]p to 60 calendar days loss of commutation time, subject to confirmation by the Administrator"), -5.1(b)(4) (stating that a non-asterisk offender may receive "[a]dministrative [s]egregation for a specified time not to exceed 90 calendar days subject to confirmation by the Institutional Classification Committee"). The sanctions were to run consecutively. The regulations do not expressly address the issue of consecutive or concurrent sanctions, except with respect to disciplinary detention, see N.J.A.C. 10A:4-5.3(a)(1). That provision prescribes a formula that results in less than absolute consecutive sanctions for "more than one disciplinary charge arising out of one incident." Ibid.
The provision authorizes other sanctions not relevant here.
We acknowledge cases in which inmates who have committed asterisk offenses, which are punishable by one year of administrative segregation and loss of commutation time, N.J.A.C. 10A:4-5.1(a)(3)-(4), have received lesser sanctions than Kadonsky did for his non-asterisk offenses. See, e.g., McDonald v. Pinchak, 139 N.J. 188, 192-93 (1995) (fifteen days detention, 180 days administrative segregation and loss of commutation credits, and 365 days loss of visitation privileges for *.003, where inmate struck a person with a chair); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20-21 (App. Div. 2005) (fifteen days detention, 180 days administrative segregation, and ninety days loss of commutation time for *.803/*.002, where inmate cursed at officer and "came at him with clenched fists"); Jones v. Dep't of Corr., 359 N.J. Super. 70, 73-74 (App. Div. 2003) (fifteen days detention, 180 days administrative segregation, and 180 days loss of commutation time for *.005, where inmate threatened physical violence and then raised fists to officer's face); DeCamp v. Dep't of Corr., 386 N.J. Super. 631, 635-36 (App. Div. 2006) (ten days of detention and 180 days administrative segregation and loss of commutation time for *.004, where inmate slammed another inmate's head into a concrete wall and attempted to kiss him).
Many asterisk offenses involve acts of violence, the threat of violence, threats to the health of inmates or officers, and drug use or distribution. See N.J.A.C. 10A:4-4.1(a).
Non-asterisk offenses have also resulted in lesser sanctions than imposed in this case. See, e.g., Russo, supra, 324 N.J. Super. at 579-80 (aggregate sanction of thirty days detention, 545 days administrative segregation, and loss of 365 days commutation time, for .705, .009 and .752 violations, where inmate conducted gambling operations, purchased large quantities of cigarettes using outside agents, and "routinely accept[ed] payment for assisting inmates in their appeals and related litigation"); McDaniels v. Dep't of Corr., No. A-5278-07 (App. Div. Aug. 7, 2009) (slip. op. at 1-3) (twenty-five days detention, 180 days of administrative segregation, and ninety days loss of commutation time for .705, .708, and .803/.205, where inmate charged other inmates money for performing legal work for them and sold his medications in exchange for food or money).
We cite this unpublished decision for evidential and not precedential purposes. See Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 155 n.3 (App. Div.), certif. denied, 199 N.J. 129 (2009). --------
The agency here provided no statement of reasons for the sanction for each prohibited act, or for its decision to run the sanctions consecutively. This is noteworthy, particularly since the six violations of .752/.802 arguably arise from a single incident — Kadonsky's assistance of the Afdahl plaintiffs. Although we extend considerable deference to the agency's decision regarding the appropriate sanction, see In re Herrmann, 192 N.J. 19, 28 (2007), the agency must nonetheless provide some reasoning to enable us to exercise our review function. Balagun, supra, 361 N.J. Super. at 203. Certainly, the length of the sanction for the disciplinary charges may not be designed to punish Kadonsky for his protected activities. Thaddeus-X v. Blatter, 175 F.3d 378, 394-400 (6th Cir. 1999) (transfer to an area of the prison where the constant noise and odor of human feces and urine made prisoner unable to sleep or eat, in retaliation for his helping another inmate maintain a lawsuit against prison officials, violated the First Amendment). We therefore remand for the agency to reconsider, and set forth its reasons for, the sanction for the violations we have affirmed in A-2473-12.
Kadonsky's remaining arguments not discussed herein lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
In sum, we reverse the finding and sanction in A-1399-12. We affirm, in A-2473-12, the findings of guilt for prohibited acts .752/.802, .701, and .705, and reverse as to .754. We also remand for reconsideration of the sanctions imposed, and a statement of reasons.
Reversed in part, affirmed in part. 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