Opinion
DOCKET NO. A-5684-12T2
01-20-2016
S.G., Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
S.G., appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the New Jersey Department of Corrections. S.G., appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
S.G. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. This appeal concerns a Remedy Form he filed complaining of "the STU's failure to provide reasonable notice of rules by proper promulgation and by the recently revised Residents' Guide to the STU" and Clinical Director Merrill Main's alleged "refus[al] to recognize the information of the N.J.A.C., Ch.1, §10:36A-1.1."
In the four pages attached to the form, S.G. alleged the Department of Human Services, the agency responsible for the treatment of those civilly committed to the STU, N.J.S.A. 30:4-27.34b, and the Department of Corrections, which is responsible for the operation of the facility, N.J.S.A. 30:4-27.34a, have not "properly promulgated ninety-nine point nine percent of the regulations governing the custody, care, control and treatment of the resident population of the [STU]" in contravention of N.J.A.C. 10:36A-1.1(a). He further claimed the April 1, 2013 revised edition of the "Residents' Guide to the STU," "appears to be mostly geared towards sex offender specific treatment of residents[,] meaning that very little information concerns 'custody, care, or control'"; provides "inaccurate and outdated information" including that the Table of Contents "directs a reader to the wrong page"; and "is unsupported by any properly promulgated regulation," resulting in the "regulations appear[ing] to change, without notice, at any given shift . . . and are applied to residents unevenly."
S.G. requested that the Commissioners of DHS and DOC:
(1) Forthwith begin the processes of joint-department rulemaking, pursuant to N.J.S.A. 30:1-12 and 52:14B-3 and 4, as required by the Office of Administrative Law Rules for Agency Rulemaking, N.J.A.C. 1:30, as to each and every rule [and] regulation governing the STU, which are not already properly promulgated and listed within the New Jersey Administrative Code, Title 10, Chapter 36A; and,
(2) To timely, adequately and meaningfully revise the April 1, 2013, Residents' Guide to the STU by, inter alia:
(a) Deleting any inaccurate or irrelevant information;
(b) Including all similar and applicable rules and regulations, as the DOC has published and provided to its inmate population in an "Inmate Handbook," and only [where] same strictly regards the custody, care, control and treatment of residents of the STU §10:36A-1.2(a)1, N.J.A.C.:
(c) Including N.J.A.C. citations of the code which is the control for the rule or regulation; and,
(d) By appointing a revising committee, consisting, among DHS and DOC officials and a representative from the Office of the Attorney General, of at least five selected residents who are capable of supplying meaningful input from the resident population for consideration of any such revision.
Dr. Main responded to S.G.'s grievance by noting the controlling regulations, N.J.A.C. 10:36A and N.J.A.C. 10A:35, and advising him that "[t]he Resident[s'] Guide is not regulation, it's 'internal management procedures and policies of the facility' established as those regulations required." S.G. filed an internal appeal the following day asserting that the STU's response "fails to address the concerns having been raised in the grievance." Specifically, he claimed:
No explanation is given as to why corrections officers are verbally enforcing dormitory housing changes to long standing policies. Because of the confusion, I continue to request the commissioners of the DOC [Department of Corrections] and DHS [Department of Human Services] promulgate rules and regulations, pursuant to rule making authority; and to revise the guidebook into a meaningful understanding.
S.G. appeals from Dr. Main's June 21, 2013 decision rejecting S.G.'s claims for relief by stating, "[i]n general or by statute, DOC is responsible for facility and security and that would seem to justify DOC making rules in areas to which you refer." He raises the following arguments:
S.G. did not name DHS as a co-respondent in his amended notice of appeal and amended civil case information statement, although he had included DHS with DOC in his original appellate filings. To the extent that appellant may be seeking appellate relief from DHS, we deny his request as to that agency as well and incorporate by reference our analysis as to the DOC.
POINT I
THE SPECIAL TREATMENT UNIT IS WILLFULLY AND WANTONLY VIOLATING APPELLANT'S ADMINISTRATIVE DUE PROCESS RIGHTS, BECAUSE ITS INTERNAL MANAGEMENT PROCEDURES ARE NOT MADE KNOWN TO THE RESIDENT POPULATION.
POINT II
THE SPECIAL TREATMENT UNIT DOES NOT MAINTAIN AN ACCURATE AMD RELIABLE RESIDENTS' GUIDE TO THE SPECIAL TREATMENT UNIT, AS REQUIRED BY N.J.A.C. § 10:36A-1.6.
Having considered S.G.'s arguments in light of the record in the matter and applicable legal precedent, we affirm.
In his brief to this court, S.G. raises a number of specific topics regarding life in the STU that he believes should be the subject of rulemaking. Included in his list are "[a]ssisting residents in the preparation and filing of meaningful legal papers," the use and supervision of the library, providing photocopies of legal materials to residents at the rate of ten cents a page, providing a reasonable notary public service and the procedure for challenging a contraband seizure. He also identifies twenty-one separate points of confusion or inaccuracies in the 2014 edition of the Residents' Guide to the STU. From our review of the record, none of these points, with the exception of the inaccuracy of the Table of Contents of the 2013 edition of the Guide, was included in the Remedy Form he filed with the STU.
S.G. does not refer to the 2013 edition of the Guide, although it was the one in effect when he filed his Remedy Form and it is the only one in the record.
Although pursuant to our order, the Department of Human Services settled the record on appeal as limited to S.G.'s Remedy Form and the 2013 edition of the Residents' Guide to the STU, the only two documents considered by the agency in rendering its decision, S.G. has submitted a supplemental appendix and referred to those documents in his brief. As none of those documents were presented to the agency and are thus dehors the record, we do not consider them.
It is obvious that we cannot appropriately address any of these issues on an appeal from an agency decision that did not address them because they were never raised to the agency in the first instance. We will not consider questions or issues not properly presented to the agency when the opportunity was 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) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). As neither consideration is present here, we decline to address the new issues S.G. raises on appeal.
The specific issue raised on appeal to the Clinical Director, "why corrections officers are verbally enforcing dormitory housing changes to long standing policies," was not briefed. Accordingly, we deem it abandoned. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); see also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015) ("It is, of course, clear that an issue not briefed is deemed waived.").
S.G.'s Remedy Form, in contrast to his brief on appeal, was not directed at any particular rule or policy, instead claiming broadly that "ninety-nine point nine percent of the regulations governing the custody, care, control and treatment of the resident population of the [STU]" were not properly promulgated. In light of that lack of specificity, we cannot find Dr. Main's response, directing S.G. to the controlling regulations, noting that the Department of Corrections is responsible for security at the facility and that the Residents' Guide constituted "internal management procedures and policies" not regulations, was arbitrary or capricious. See In re Stallworth, 208 N.J. 182, 194 (2011) (noting agency decisions will not be set aside unless "arbitrary, capricious or unreasonable" or "not supported by substantial credible evidence in the record as a whole") (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
N.J.A.C. 10:36A-1.6 and 10A:35-1.6 provide that an STU Residents' Guide shall be maintained and provided to all residents. --------
Because S.G.'s complaints as to the Residents' Guide relate to the 2014 edition not in the record, we do not address them. As to the 2013 edition of the Guide, we note only that S.G.'s claim as to the inaccuracy of the Table of Contents seems confined to the appendices, which are not at pages 54 and 55, but rather appear at pages 59 and 60. Such errors are surely of no consequence. To the extent S.G. seeks to compel the Department of Corrections to adopt additional rules for the operation of the STU, he is free to petition the agency for rulemaking pursuant to N.J.A.C. 10A:1-1.2. See also N.J.S.A. 52:14B-4(f).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION