                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3011-17T2

CARON ROMANS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted November 12, 2019 – Decided March 3, 2020

                    Before Judges Vernoia and Susswein.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Caron Romans, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Suzanne Marie Davies, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant, Caron Romans, is a state prison inmate serving a fifteen-year

sentence for armed burglary, terroristic threats, and theft. He appeals from a

final agency decision by the Department of Corrections (DOC) denying his

request to be transferred to a residential community-release program (RCRP),

colloquially known as a halfway house. His application was initially approved

by both the Institutional Classification Committee (ICC) and the prison

administrator of the institution at which he was housed.        The Office of

Community Programs and Outreach Services (OCPOS) intervened, however,

and denied the transfer based on Romans's classification file and the nature and

details of his offense.

      The gravamen of Romans's appeal is that OCPOS has no authority to

overrule the ICC.         Romans contends that pursuant to regulations duly

promulgated by the Commissioner, the ICC has exclusive authority to determine

whether inmates will be admitted to an RCRP.               Although Romans's

interpretation of the applicable regulations is correct, we are constrained to

reject his argument in view of a rule exemption from N.J.A.C. 10A:20-4.5

granted by the Commissioner. That exemption changed the approval procedures

and gave OCPOS authority to deny Romans's application to the RCRP.




                                                                        A-3011-17T2
                                        2
      The decision where to place an inmate is left to the discretion of the DOC

Commissioner or his designee. The Commissioner has broad discretion not only

in deciding whether to place an inmate in a community-based program but also

in choosing a designee to make that decision in the Commissioner's stead. In

this instance, by granting an exemption from the approval process otherwise

specified in the regulation, the Commissioner lawfully exercised his authority

to add another layer of review and delegate to OCPOS the responsibility to

ensure that only appropriate candidates are admitted to an RCRP. We therefore

reject Romans's contention that DOC acted arbitrarily, capriciously, and

unreasonably in denying his admission into the program.

                                    I.

      As we have already noted, Romans's application was initially approved by

the ICC and prison administrator, but ultimately the OCPOS denied it. Romans

appealed from that final agency decision. DOC requested the case be remanded

so that it could reconsider the denial of Romans's application. We granted

DOC's motion, remanded the case, and retained jurisdiction.

      DOC apparently recognized that the procedure it had followed in this case

did not comport with the review and approval/denial process set forth in its

regulations. The DOC Commissioner thereupon issued the rule exemption,


                                                                        A-3011-17T2
                                         3
creating another layer of review and delegating to OCPOS the authority to

approve or deny applications for transfer to a halfway house. DOC asserts the

rule exemption was necessary to ensure that inmates placed in community-based

residential programs do not pose an undue risk to public safety. DOC now relies

on that rule exemption to justify post hoc 1 the final agency decision that had

already been made to deny Romans's application. Having retained jurisdiction,

the case now returns to us for decision.

                                     II.

      Romans, appearing pro se, presents the following contention for our

consideration:

            THE RESPONDENT[']S ACTIONS (DENIAL OF
            PETITIONER[']S       HALFWAY           HOUSE
            APPLICATION) WERE OUTSIDE OF THEIR ROLE
            AS DEFINED IN [N.J.A.C.]10A:20-4.12, AS THEY
            ARE    REQUIRED     TO    FORWARD       I.C.C.

1
   We note that the retroactive application of the rule exemption in no way
implicates the prohibition against ex post facto laws. The alteration of the
administrative review process in this case did not "impose[] additional
punishment to an already completed crime." Riley v. N.J. State Parole Bd., 219
N.J. 270, 285 (2014) (citing Kansas v. Hendricks, 521 U.S. 346, 370 (1997)). A
change in custody status generally does not implicate the Due Process Clause,
Sandin v. Conner, 515 U.S. 472, 486 (1995) (limiting due process liberty
interests to freedom from a restraint imposing an atypical, significant hardship
in relation to the ordinary incidents of prison life), and absent punitive intent,
"the Ex Post Facto Clause does not bar a prison from changing the regulations
governing their internal classification of prisoners," Dyke v. Meachum, 785
F.2d 267, 268 (10th Cir. 1986).
                                                                          A-3011-17T2
                                           4
            APPROVALS AND PREPARE TRANSFERS TO THE
            ASSESSMENT CENTERS UNLESS AN APPLICANT
            WAS     CONVICTED    OF     AN     OFFENSE
            ENUMERATED IN N.J.S.A. 30:4-91.8, OF WHICH
            THE APPELLANT WAS NOT. OTHERWISE THE
            I.C.C. APPROVES/DISAPPROVES APPLICANTS
            AND THE OFFICE OF COMMUNITY PROGRAMS
            FORWARDS APPROPRIATE DOCUMENTS TO
            ASSESSMENT CENTERS.

                                     III.

      We begin our analysis by acknowledging the legal principles we must

apply, including the deference we owe to administrative agencies in general and

to the DOC Commissioner in particular.        "The judicial capacity to review

administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J.

197, 210 (1997). As a general matter, we will "intervene only in those rare

circumstances in which an agency action is clearly inconsistent with its statutory

mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk.

Auth., 137 N.J. 8, 27 (1994). We may disturb a final agency action only if it is

arbitrary, capricious, or unreasonable. Brady, 152 N.J. at 210

      We defer to administrative agencies in recognition of their "expertise and

superior knowledge of a particular field." Greenwood v. State Police Training

Ctr., 127 N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J. 575,

587 (1988)). Such deference certainly applies to decisions made by the DOC


                                                                          A-3011-17T2
                                        5
Commissioner given "[t]he breadth and importance of the Commission er's

expertise and discretionary authority in matters of prison policy, regulation and

administration." Ortiz v. N.J. Dep't of Corr., 406 N.J. Super. 63, 70 (App. Div.

2009).

      Furthermore, an inmate does not have a constitutionally protected liberty

interest in his or her custody status or housing assignment. Meachum v. Fano,

427 U.S. 215, 224–225 (1976); see also White v. Fauver, 219 N.J. Super. 170,

180 (App. Div. 1987) (noting an inmate has no constitutionally protected interest

in reduced-custody status).    We have long recognized, in this regard, that

because inmates are sentenced to state prison, not to any particular institution or

program, they may be transferred by administrative action. Rocca v. Groomes,

144 N.J. Super. 213, 215 (App. Div. 1976). Indeed, the Commissioner "has

complete discretion in determining an inmate's place of confinement, N.J.S.A.

30:4-91.2." Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div.

2001).

      The Commissioner may circumscribe that discretion, however, by

adopting regulations.    See id. at 33 (noting that discretion in determining

whether to grant reduced-custody status is guided by N.J.A.C. 10A:9-3.3(a)).

As a general matter, "an administrative agency ordinarily must enforce and


                                                                           A-3011-17T2
                                        6
adhere to, and may not disregard, the regulations it has promulgated." Cnty. of

Hudson v. N.J. Dep't of Corr., 152 N.J. 60, 70 (1997) (citing In re Waterfront

Dev. Permit, 244 N.J. Super. 426, 434 (App. Div. 1990)). However, an agency

may expressly reserve unto itself the power to waive a regulation. In re CAFRA

Permit No. 87-0959-5, 152 N.J. 287, 308 (1997) ("[A]n agency that seeks the

power to waive its substantive regulations should adopt a regulation pertaining

to any such waiver . . . .").

                                      IV.

      We turn next to the specific regulations governing the administration of

an RCRP. N.J.A.C. 10A:20-4.5(b)(1) provides that eligibility and suitability for

assignment to an RCRP "is determined by the Commissioner or designee."

Although     decision-making    authority   thus   rests   ultimately   with   the

Commissioner, the question presented to us in this appeal is to whom the

Commissioner delegated this authority within the agency's organizational

structure.

      In its present form, N.J.A.C. 10A:20-4.10(a) vests the ICC with the

authority to approve or deny an inmate's assignment to a residential program. 2


2
  DOC does not dispute that the administrative code, as currently written, does
not grant OCPOS the authority to render final agency decisions regarding


                                                                          A-3011-17T2
                                       7
This delegation is consistent with the general procedures relating to the

classification of inmates. See Shabazz v. N.J. Dep't of Corr., 385 N.J. Super.

117, 122 n.1 (App. Div. 2006) ("Decisions as to custody status . . . are made by

the Institutional Classification Committee." (citing N.J.A.C. 10A:9-3.3(a))); see

also Jenkins v. Fauver, 108 N.J. 239, 245 (1987) (noting a prior Departmental

standard vested in the ICC "sole authority to reduce or increase an inmate's

custody status"); Smith, 346 N.J. Super. at 31 (noting that a Department brief

"explain[ed] that 'custody status' decisions are made by the Institutional

Classification Committee").

      The text of the current regulations suggest that the role of the OCPOS is

to administer the process of transferring the inmate to an appropriate program,

rather than deciding whether to admit the inmate into a program. See N.J.A.C.

10A:20-4.12 (requiring the OCPOS to prepare transfer orders, maintain waiting

lists, and assign inmates to Assessment and Treatment Centers); see also

N.J.A.C. 10A:20-4.2(a) (imposing upon OCPOS the responsibility "for the

administration, monitoring, and oversight" of RCRPs).




community-release applications. DOC's brief informs us that the Department is
currently in the process of amending its regulations to grant such authority .
                                                                         A-3011-17T2
                                       8
      It bears noting, however, the current regulations also assign to OCPOS

the authority to "select the program assignment for . . . inmate[s] approved by

the [ICC] for participation in a residential community program." N.J.A.C.

10A:20-4.8(g). In other words, although the current regulations do not authorize

OCPOS to make final admission and denial decisions, that office clearly plays

an important role in the placement process.

      The text of the current regulations must be read in conjunction with t he

rule exemption, which provides that OCPOS reviews any approved applications

from the ICC. This provides enhanced checks and balances ensuring both

consistency and public safety. The rule exemption clearly was intended to make

OCPOS the Commissioner's designee for purposes of determining whether an

inmate should be admitted into the halfway-house program. We discern no legal

impediment to the Commissioner exercising his discretion by delegating this

task to OCPOS, especially given its experience and expertise in overseeing

community-based release programs. In sum, we do not read the statute or

regulations as prohibiting OCPOS from acting as the Commissioner's designee

pursuant to a duly issued rule exemption.

      In reaching this conclusion, and in deferring to the Commissioner's

prerogative in selecting a designee best suited to identify appropriate candidates


                                                                          A-3011-17T2
                                        9
for placement in halfway houses, we are mindful of concerted efforts by the

Executive Branch to facilitate successful prison reentry as a means of enhancing

public safety 3 and promoting social justice.        Halfway houses and other

community-based residential programs are an important part of the inmate

reentry and reintegration process, providing an intermediate step between

imprisonment and parole. The DOC Commissioner has a keen interest not only

in ensuring public safety, but also in enhancing public confidence in these vital

programs. Adding another layer of administrative review to the application and

approval   process,   therefore,   seems    an   appropriate   exercise    of   the

Commissioner's discretion, one that cannot be characterized as arbitrary,

capricious, or unreasonable. Brady, 152 N.J. at 210.

      Any contentions raised by Romans that we have not addressed lack

sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

      We emphasize that our ruling presupposes that the decision to deny

Romans's placement in a halfway house is not final and immutable. See Smith,

346 N.J. Super. at 31–32 (basing, in part, an affirmance of a decision to deny an

inmate's application for reduced custody status upon the opportunity for


3
  The regulations clearly provide that candidates for participation in resident ial
release programs shall "[n]ot demonstrate an undue risk to public safety."
N.J.A.C. 10A:20-4.4(a)(2).
                                                                           A-3011-17T2
                                       10
continuous review of the inmate's custody status). DOC in its brief assures us

that it will continue to review Romans's custody status and housing assignment.

Based on that assurance, we affirm the agency decision to deny him admission

to the RCRP.

      Affirmed.




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