                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1826-15T4

EDWARD GRIMES,
                                       APPROVED FOR PUBLICATION
         Appellant,
                                          December 5, 2017
v.
                                         APPELLATE DIVISION
NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.
_____________________________________________

         Submitted May 31, 2017 – Decided December 5, 2017

         Before Judges Messano, Suter, and Grall.

         On appeal from New Jersey Department of
         Corrections.

         Edward Grimes, appellant pro se.

         Christopher S. Porrino, Attorney General,
         attorney for respondent (Lisa A. Puglisi,
         Assistant Attorney General, of counsel;
         Christopher C. Josephson, Deputy Attorney
         General, on the brief).

PER CURIAM

     The New Jersey Department of Corrections (DOC) has

informally adopted a policy that "[for] security reasons," does

not permit inmates to place phone calls to "cellular, business
or non-traditional telephone service numbers" (calling policy).1

As DOC acknowledges, the calling policy applies in all DOC's

correctional facilities and "is not codified in statute or

regulation."

     Edward Grimes is an inmate confined at the New Jersey State

Prison (NJSP).   His relatives live in other states and none have

a phone other than a cell phone.    After Grimes's several

attempts to obtain an explanation for and change of the calling

policy by invoking the inmate remedy process, N.J.A.C. 10A:1-

4.1, -4.5 to -4.6, DOC provided this final response:

          [T]he [DOC] prohibits inmates from making
          calls to cellular telephones. This practice
          is in effect for a number of security
          reasons. Family members and friends of an
          inmate will be unable to accept telephone
          calls unless they have a functioning land
          line telephone. The [DOC] strongly
          encourages inmates to correspond with family
          and friends through letters in addition to




1
  The quoted description is from DOC's website: Department of
Corrections,
http://www.state.nj.us/corrections/pages/InmateTelephoneSystemIn
fo.html (last visited on Nov. 7, 2017).
     We cite DOC's website because its description and DOC's
response to the inmate who appeals are the only statements from
the Commissioner's Central Office that the record and legal
research have disclosed. Inmate Handbooks are developed at each
correctional facility and are reviewed by an assistant
commissioner. N.J.A.C. 10A:8-1.3, -3.1 to -3.5.




                                2                            A-1826-15T4
           telephone calls in an effort to maintain
           strong family ties.2

           [Emphasis added.]

     Grimes appeals and challenges the calling policy and DOC's

informal action establishing and implementing it.     R. 2:2-

3(a)(2).    He contends the policy was not adopted in compliance

with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1

to -31.    Grimes also asserts violations of United States

Constitution: failure to provide procedural protections required

by the Due Process Clause; and violations of the Equal

Protection Clause of the Fourteenth Amendment and the First

Amendment, "applicable to the States through the Fourteenth

Amendment," Reed v. Town of Gilbert, ___ U.S. ___, 135 S. Ct.

2218, 2226, 192 L. Ed. 2d 236, 245 (2015).

     We conclude the APA requires adoption of the calling policy

in conformity with the rulemaking procedures of the APA,

N.J.S.A. 52:14B-4 to -5, and remand to the Commissioner for

commencement of that process.3   We further conclude the record on


2
  Generally, the Commissioner's Central Office staff has no role
in the inmate remedy system; Grimes was granted additional
consideration. N.J.A.C. 10A:1-4.1, -4.5 to -4.6.
3
  Although Grimes first asserted his APA claim in his reply
brief, we address the question because of its "public
importance." Coastal Grp. v. Planned Real Estate Deve. Sec.
Dep't of Cmty. Affairs, 267 N.J. Super. 49, 56 (App. Div. 1993).
In addition, DOC's candid acknowledgment that the calling policy
                                                      (continued)


                                 3                           A-1826-15T4
appeal, even as supplemented by the parties with leave of court,

is inadequate to permit proper review of his constitutional

claims.   See State v. Robinson, 200 N.J. 1, 20-21 (2009); Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973).   We are,

however, convinced that immediate invalidation of the calling

policy would leave a void and create a sudden disruption

detrimental to important interests of the inmates, DOC and the

public.   Accordingly, we exercise our discretion to keep the

calling policy in place pending cure of the APA-violation by

promulgation of a regulation in conformity with the APA.      See

Hampton v. Dep't Corr., 336 N.J. Super. 520, 530 (App. Div.

2001); Dep't of Corr. v. McNeil, 209 N.J. Super. 120, 125-26

(App. Div. 1986).

                                I.

    Telephone calls are one of many modes of communication

between inmates and their relatives and friends, which DOC

authorizes, regulates and lists among the inmates' rights and

privileges.   N.J.A.C. 10A:8-3.5(b)(3)(iii); 10A:18-1.1(a).

Other modes of communication include visits, correspondence,

packages and publications.   N.J.A.C. 10A:8-3.5(b)(3)(iii);

10A:18-1.1(a).   In addition, since 2015, NJSP has allowed


(continued)
is not codified in a statute or regulation most likely invited
the responsive challenge.



                                4                            A-1826-15T4
inmates to receive emails and photos sent by cell phone.     DOC

has made that possible with a kiosk system installed in several

facilities, including NJSP.   The service provider delays

transmission and receipt for fifteen minutes to permit review by

DOC staff.4   By regulation promulgated pursuant to the APA, calls

placed by inmates "may be monitored and recorded."   N.J.A.C.

10A:18-8.3.

     Each correctional facility's handbook must include written

procedures the facility must develop to allow its inmates

reasonable and equitable access to public telephones.     The

procedures must address hours of availability, duration of calls

and "[a]ny limitation."   N.J.A.C. 10A:18-8.1(a), -8.2.

     NJSP's 2016 handbook explains: DOC has made public

telephones available for inmate use in order "to keep and to

strengthen ties with family, friends, community and the courts."

It also describes what an inmate must do to use the system.

     An inmate must obtain an individual personal identification

number (IPIN) and complete a form providing the names and

numbers of no more than ten relatives, friends and

acquaintances.   DOC then verifies the names and numbers.

Thereafter, each number must be approved by DOC and the Global


4
  This information is set forth in a certification of the Chief
of DOC's Special Investigation Division (SID) submitted by DOC.



                                 5                          A-1826-15T4
Tel Link Corporation (GTL), the service provider for the inmate

phone system.    An inmate's IPIN-list (a list of that inmate's

numbers verified and approved) is not activated until all steps

are completed.     The system does not transmit a call to a number

that is not on the inmate's IPIN-list.

    The calling policy is not stated in a regulation or

reproduced in the NJSP's handbook; it is described.     NJSP's 2016

handbook's description is stated differently than DOC's

description on its website, and that handbook contains two

differing descriptions.    One directs inmates to tell people they

want to call that they must have a "Traditional land line phone

only."   (Emphasis added.).    Another identifies numbers for a

"Cell Phone" and numbers for phones with "Non Traditional

Telephone Services (i.e.; Voice-over-Internet Protocol VoIP) as

prohibited numbers an inmate may not submit for approval.

    There are four different descriptions of numbers subject to

the calling policy in this record: 1) "non-traditional telephone

service numbers"; 2) numbers for "Non Traditional Telephone

Services (i.e.; Voice-over-Internet Protocol VoIP)"; 3)

"Traditional land line phone only"; and, 4) "functioning land

line telephone."    Presumably the inconsistency is an unintended

consequence of DOC's informal adoption of the calling policy,




                                  6                         A-1826-15T4
which would have been detected and resolved in the process of

promulgating a regulation pursuant to the APA.

    The record does not permit us to identify with certainty

when the calling policy took effect.    Because NJSP's 2007

handbook does not mention the type of phone or phone service

recipients of an inmates' calls must have and NJSP's 2016

handbook does, it was likely implemented between those dates.

Most likely it was implemented in April 2010; an April 8, 2010

memo from the Administrator of NJSP to the facility's inmate

population gives notice of a Zero Tolerance policy and provides

"examples" of prohibited IPIN telephone numbers consistent with

those listed in NJSP's 2016 handbook.    But the Chief of DOC's

Special Investigation Division (SID) certified, to the best of

his recollection, the policy was in place in 1989, when he was

first employed by DOC.

    Grimes, as he did during the inmate remedy process, points

to what he perceives to be inexplicable inconsistencies and

practical problems with the calling policy.    In 2015, NJSP was

allowing inmates to receive emails and photos sent by cell phone

and, at the same time, prohibiting him from calling his

relatives' cell phone numbers, even those numbers approved and

verified before the policy was implemented.    Grimes also




                               7                              A-1826-15T4
mentions the security measures in place — call monitoring and

recording and the pre-approval process.

     Grimes supplemented the record with an order entered by a

District Court Judge of the United States District Court for the

District of New Jersey,5 which denies DOC's motion to dismiss an

action challenging the calling policy.       The order includes

statistics on the number of households with only wireless

telephones as of 2013 and reports that the court's initial

research had not revealed a single state with a ban on inmates'

calls to cell phones as broad as DOC's calling policy.

     Grimes, without identifying his source, asserts that eighty

to ninety percent of all phone calls involve cell phones and

many people, including his sister and his emergency contact,

cannot afford a cell phone and a landline.       Grimes submits, as

he did in his inmate remedy form, that DOC and its inmates

should join the 21st century, a time in which "land lines . . .

are rapidly becoming obsolete."       Finally, Grimes notes what he

views as hypocrisy — NJSP's proclaimed interest in inmates

5
  Shamsiddin A. Abdur-Raheem v. N.J. Dep't of Corr. (order
denying motion to dismiss No. 15-1743, (DNJ May 31, 2016).
Three other law suits challenging DOC's calling policy were
dismissed for failure to state a claim by different judges.
Graf v. Lanigan, No. 14-2613, 2016 U.S. Dist. LEXIS 9198 at *1,
*2 (D.N.J. Jan. 27, 2016); Love v. N.J. Dep't of Corr., No. 14-
5629, 2015 U.S. Dist. LEXIS 61678, (D.N.J. May 12, 2015); Stokes
v. Lanigan, No. 12-1478 (PGS), 2012 U.S. Dist. LEXIS 142185, at
*1 (D.N.J. Oct. 2, 2012).



                                  8                           A-1826-15T4
communicating with family members and a calling policy thwarting

such communication.

    The Chief of SID, in his certification supplementing the

record, highlights security risks favoring the policy: cell

phones can be carried nearly anywhere and used to orchestrate

criminal activity in real time in and outside of prison,

including escape; landline billing is easier to obtain; cell

phone accounts may have multiple users; a past-incident

involving a named-inmate, which the named-inmate contradicts in

his certification; and the problems presented when inmates have

cell phones in prison, which seem irrelevant.

    Throughout the inmate remedy process, Grimes acknowledged

the calling policy's existence and stressed it could and should

be changed.   The purpose of the inmate remedy system is to allow

inmates to "formally communicate with correctional staff to

request information" and "present issues."   N.J.A.C. 10:1-4.1, -

4.5 (emphasis added); see Ortiz v. N.J. Dept. of Corr., 406 N.J.

Super. 63, 66-67 (App. Div. 2009).   Surprisingly, no NJSP or DOC

staff member who responded to Grimes during that process

informed him that N.J.A.C. 10A:1-1.2 authorizes petitions for

rulemaking.




                                9                          A-1826-15T4
                                II.

    Agencies may "act informally, or formally through

rulemaking or adjudication in administrative hearings."     Texter

v. Dep't of Human Servs., 88 N.J. 376, 383-84 (1982) (citations

omitted); see N.J.S.A. 52:14B-3(2).   An agency's ability to

select procedures it deems appropriate to accomplish its

statutory mission is limited by "the strictures of due process

and of the [APA]."   In re Solid Waste Util. Cus. Lists, 106 N.J.

508, 519 (1987).   The Department of Corrections'

responsibilities are broad.   N.J.S.A. 30:1B-3 (DOC's purpose

includes protection of the public and the care, discipline,

treatment and preparation of inmates for "release and

reintegration into the community").

    The APA defines the critical terms "administrative rule"

and "rule" to include an "agency statement of general

applicability and continuing effect that implements or

interprets . . . policy" and to exclude "statements concerning

the internal management or discipline of any agency," and

"intra-agency statements."    N.J.S.A. 52:14B-3.2.   In Metromedia,

Inc. v. Director, Div. of Taxation, 97 N.J. 313, 331-32 (1984),

the Court explained that rulemaking is required "when all or

most" of six relevant factors the Court identified in that case

"are present and preponderate in favor of the rule-making."




                                 10                         A-1826-15T4
    Taking the six factors favoring rulemaking in order and

beginning with the three involving the scope and reach of the

policy: (1) DOC's calling policy applies to all inmates in

correctional facilities and to their relatives and friends; it

has "wide coverage encompassing a large segment of the regulated

or general public," not an "individual" or "select group."      (2)

The calling policy is a blanket policy with no exceptions; it is

"intended to" be applied "generally and uniformly to all

similarly situated persons," and it is.   (3) The calling policy

could not possibly be applied to reach back in time; a ban on

outgoing phone calls necessarily operates "prospectively."

Ibid.

    We turn to the remaining factors addressing content: (4)

The absence of any mention of cell phones or types of service in

NJSP's 2007 handbook and the prohibition of calls on that basis

stated in the 2016 NJSP handbook suggests the calling policy

imposes a new restriction not inferable on any basis other than

the breadth of the Commissioner's discretion to operate the

correctional facilities.   (5) In the absence of any evidence

suggesting otherwise, the policy "reflects [a new]

administrative policy" or a clear change in policy, but because

the Chief of DOC's SID represents the policy may be longstanding

and the documentary evidence undercuts, but does not




                                11                         A-1826-15T4
definitively refute that SID's assertion, we give this factor no

weight in either direction.    Finally, (6) DOC's calling policy

is a decision on policy that involves an exercise of the

Commissioner's discretion and expertise in balancing the

rehabilitative benefits of communication against the risk posed

by communication through modern and rapidly changing modes.

    The five Metromedia factors that are established all weigh

in favor of rulemaking in conformity with APA procedures.         But

the inquiry cannot end until we determine whether the calling

policy is exempt from the APA as either a statement "concerning

the internal management or discipline" of DOC or as an "intra-

agency" statement of DOC.     N.J.S.A. 52:14B-3.2.

    In Woodland Private Study Group v. State, 109 N.J. 62, 74

(1987), the Court addressed and ultimately defined "an intra-

agency" statement as (1) a communication between agency members

that (2) does not have a substantial impact on (3) the rights or

legitimate interests of the regulated public."       Id. at 75.    A

legitimate interest is a matter "of justifiable concern."         Id.

at 74.

    In Woodland the Court instructed: "The inquiry is whether

the agency's interest in streamlined procedure is outweighed by

the importance of the interests that are affected.      Generally

where the interest implicated is legitimate, the balance will




                                  12                          A-1826-15T4
tilt in favor of notice and hearing for internal actions that

have a substantial impact on that interest."      Id. at 75.

    DOC's final response to Grimes, quoted at the outset of

this opinion, highlights the policy's impact on the legitimate

interest of the entire group of inmates and that group's

relatives and friends.     Repeating the critical portion of DOC's

response, "Family members and friends of an inmate will be

unable to accept telephone calls unless they have a functioning

land line telephone."     Another portion of the response

implicitly recognizes the legitimacy and significance of such

conversation and the impact of the restriction by advising, DOC

"strongly encourages" letter writing "to maintain strong family

ties."

    The conversation of family members and friends restricted

by the calling policy is the mutual and legitimate interest of

the participants, and its restriction is a matter of mutual

justifiable concern.     Id. at 74-75.   The minimal burden of

rulemaking is far outweighed by the legitimate interests the

calling policy affects.    Thus, Woodland bars an exemption from

rulemaking as an "intra-agency" statement.

    We also conclude the calling policy's significant impact on

members of the public precludes exemption as a statement of

"internal management or discipline."     N.J.S.A. 52:14B-2.      The




                                  13                           A-1826-15T4
policy directly addresses conduct of inmates' relatives and

friends.   See Bullet Hole, Inc. v. Dunbar, 335 N.J. Super. 562,

589 (App. Div. (2000) (finding an impact on much less

significant basis).    The number of people outside the

correctional facility affected by the calling policy's

limitations on conversation is a group with membership that

could equal, and potentially significantly exceed, the number of

inmates; after all, DOC permits an inmate to include up to ten

names and phone numbers on his or her IPIN-list.    The calling

policy concerns inmates, but it more directly impacts people

outside the prisons.   Thus, the internal management and

discipline exception does not apply.

    Importantly, compliance with the APA procedures serves the

interests of "fairness and due process."    Holmdel Builders Ass'n

v. Holmdel, 121 N.J. 550, 578 (1990).    Compliance requires

notice and an opportunity to present pertinent information, and

compliance also requires an articulation of the basis, standards

and principles informing the exercise of the Commissioner's

discretion.   In re Provision of Basic Generation Serv., 205 N.J.

339, 349 (2011); Holmdel Builders, supra, 121 N.J. at 578;

Jenkins v. Fauver, 108 N.J. 239, 255 (1987); Metromedia, supra,

97 N.J. at 331; Avant v. Clifford, 67 N.J. 496, 564 (1975)

(Conford, P.J.A.D., Temporarily Assigned, concurring) (endorsing




                                 14                        A-1826-15T4
the value of public commentary prior to adoption or amendment of

prison regulations, which an undivided Court endorsed in

Jenkins, supra, 108 N.J. at 255-56).

    Because the APA requires adoption of the calling policy in

conformity with its rulemaking procedures, the informally

adopted calling policy is invalid.   As indicated at the outset

of this opinion, the likely disruption of immediate invalidation

would disserve the important institutional, public and personal

interest implicated.   Accordingly, we remand for prompt

commencement of rulemaking and continue the current policy

pending a rulemaking proceeding.

    Reversed and remanded to the Commissioner with direction to

proceed without delay.




                                15                          A-1826-15T4
