Filed: Dec. 21, 2015
Latest Update: Dec. 21, 2015
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Petitioner appeals from an April 14, 2014 final agency decision by the New Jersey Department of Corrections (the DOC) denying his petition for rulemaking. We affirm. Petitioner was in the custody of the DOC from July 1991 to May 2011. Between March 1993 and May 2003, petitioner committed dozens of disciplinary infractions and was penalized a total of 6688 commutation days. In 2007, petitioner filed multiple Req
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Petitioner appeals from an April 14, 2014 final agency decision by the New Jersey Department of Corrections (the DOC) denying his petition for rulemaking. We affirm. Petitioner was in the custody of the DOC from July 1991 to May 2011. Between March 1993 and May 2003, petitioner committed dozens of disciplinary infractions and was penalized a total of 6688 commutation days. In 2007, petitioner filed multiple Requ..
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Petitioner appeals from an April 14, 2014 final agency decision by the New Jersey Department of Corrections (the DOC) denying his petition for rulemaking. We affirm.
Petitioner was in the custody of the DOC from July 1991 to May 2011. Between March 1993 and May 2003, petitioner committed dozens of disciplinary infractions and was penalized a total of 6688 commutation days.
In 2007, petitioner filed multiple Request System and Remedy Forms seeking restoration of his lost commutation credits. The DOC advised petitioner he was entitled to and received 117.25 days of restored commutation credits.
In 2009, petitioner submitted another request form seeking restoration of lost commutation credits. The DOC advised petitioner he had already received the restored commutation time to which he was entitled.
On February 25, 2013, petitioner submitted a petition to the DOC for rulemaking. He proposed that the New Jersey Administrative Code be amended to alter the period in which inmates are permitted restoration of forfeited commutation credits. Presently, an inmate "must submit an application for restoration of commutation credits to the correctional facility classification officer ... at any time after he or she becomes eligible for restoration." N.J.A.C. 10A:9-5.5(f). N.J.A.C. 10A:9-5.5(d)(1) provides:
Up to [seventy-five] percent of the forfeited commutation credits may be restored over the three[-]year period following the incident which resulted in the loss of commutation credits. The three years must run consecutively, calculated from the date of the incident. Credits shall be restored at the rate of [twenty-five] percent for each year the inmate is in custody and is free of any disciplinary charges with a guilty finding.
Petitioner proposed N.J.A.C. 10A:9-5.5 be amended to
allow inmates to be granted the full measure of their restoration or [seventy-five percent] of the forfeited commutation credits, retroactively, regardless of whether such inmates filed a request, each year, for three consecutive years, following the date of the initial disciplinary infraction and finding of guilt, as long as it can be shown that such inmates had remained without a charge which resulted in a guilty finding, for said three year period, at the time of their initial filing of a request for their restoration.
[(emphasis in original).]
Petitioner's notice of petition for rulemaking appeared in the March 17, 2014 New Jersey Register, and on April 14, 2014, the DOC denied his petition because it found the existing rule, N.J.A.C. 10A:9-5.5, already provided the relief sought. In accordance with N.J.A.C. 1:30-4.2(a)(1), the DOC explained
[t]he existing rule adequately expresses the policy and procedure of the [DOC] pertaining to restoration of forfeited commutation credits. Therefore, no further amendment is deemed necessary. Moreover, it should be noted that the rules provide that, upon receipt of a proper request for restoration of forfeited time credits, the classification officer may review and restore all credits to which the inmate is validly entitled at any time during his incarceration, retroactively. There is no requirement in the rule that the inmate must submit a request each year or lose the restored time credits to which he may have been entitled for that year. [Petitioner] misinterprets the regulation inasmuch as the [DOC]'s regulation already provides the relief requested.
[(emphasis added).]
On appeal, petitioner argues:
[Point I:]
THE DECISION OF THE [DOC] AND/OR ITS APPLICATION OF [N.J.A.C.] 10A:9-5.5 WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE REGARDING [PETITIONER'S] REQUEST FOR RESTORATION OF COMMUTATION CREDITS, AND THE AFORESAID RULE SHOULD HAVE BEEN AMENDED, AS PETITIONED BY [PETITIONER], TO ALLOW HIM TO HAVE RESTORED [SEVENTY-FIVE PERCENT] OF FORFEITED COMMUTATION CREDITS.
Our review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We only disturb an agency's action if we find it was arbitrary, capricious, or unreasonable. Ibid. Furthermore, we afford "great deference" when reviewing "an agency's interpretation of statutes within its scope of authority and its adoption of rules implementing the laws for which it is responsible[.]" Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015) (citations and internal quotation marks omitted).
We begin by rejecting, as procedurally barred, petitioner's argument the DOC erred by denying his requests for restoration of commutation credit. Rule 2:4-1(b) requires appeals from final agency decisions to "be taken within [forty-five] days from the date of service of the decision or notice of the action taken." Petitioner's requests were denied in 2007 and 2009. Thus, any challenge is barred.
We also reject petitioner's contention that the DOC's decision denying his petition for rulemaking was arbitrary, capricious, or unreasonable. The DOC aptly explained the existing provisions in N.J.A.C. 10A:9-5.5 concerning restoration of forfeited commutation credits were adequate, and petitioner's petition was based on his erroneous belief an inmate must submit a request each year for restored credits.
As the DOC explained, N.J.A.C. 10A:9-5.5 allows retroactive restoration of all commutation credits to which an inmate is entitled. Moreover, an inmate does not forgo the ability to seek restoration of commutation credits by failing to submit a request each year; the request may be made anytime and be applied retroactively. Thus, the DOC concluded "[t]he existing rule adequately expresses the policy and procedure of the [DOC] pertaining to restoration of forfeited commutation credits[]" and petitioner "misinterprets the regulation inasmuch as the [DOC]'s regulation already provides the relief requested."
Affirmed.
