*1 496
1971) (Sobeloff, J., concurring in part and dissenting part), cert. dismissed sub nom. Murel v. City Baltimore Criminal Court, (1972)). U.S. S.Ct. L.Ed.2d 791 Judge BELL Judge
Chief GREENE have authorized join me to state that this dissenting opinion.
886A.2d 585 MASSEY, Richard L. Jr. v. SECRETARY, DEPARTMENT OF SAFETY PUBLIC
AND CORRECTIONAL SERVICES. 142, Sept. Term,
No. 2004. Court Appeals Maryland. 21, 2005. Nov. *2 B. Joseph Meehan, Tetrault Z. (Stephen White, Pauline K. Banton, Tamal A. Prisoner Rights Information System of Inc., Maryland, Charterstown, brief), on for appellant. (J.
Michael Doyle, O. Asst. Atty. Curran, Jr., Gen. Joseph *3 Gen., brief), Atty. on appellee. for BELL, C.J., RAKER, before
Argued WILNER, CATHELL, HARRELL, GREENE, BATTAGLIA and JJ.
WILNER, J.
The State Department of Public Safety and Correctional (DPSCS) Services and the (DOC), Division of Correction a unit Department, within the adopted have certain “directives” (1) that create and define administrative offenses for which subject (2) DOC inmates are to discipline, administrative prescribe the kinds of discipline, including the revocation of earned diminution against sentence, credits the inmate’s avail- (3) able upon finding of guilt, set forth the procedure for charging offenses, inmates with adjudicating their guilt offenses, (4) innocence of those and imposing discipline, and procedures establish for receiving, considering, adjudicat- ing complaints made by inmates regarding policies, proce- dures, and in conditions the prison.
The question before us is whether certain of those directives regulations constitute that must be in conformance Act. We shall answer Administrative Procedure with the State affirmative, and, it undisputed in because is the question that ineffec- declare them adopted, not so we shall tive.
BACKGROUND
Procedural Construct is the direction and control prison under system The State which, noted, Subject to is unit DPSCS. of within DOC DPSCS, the of Secretary law the authority the vested Mary- is charge of of DOC. See Commissioner Correction (CS). Code, § Article 3-203 of the Correctional Services land 2-109(c) adopt the regulations requires CS facilities of correctional policies management govern Title in accordance with the Division Correction Article but from excepts 1 of the Subtitle State Government inter- to the routine requirement guideline pertaining “a in the CS management nal of correctional facilities Division.” adopt regulations 3-205 authorizes the Commissioner units in and maintenance DOC operation for ... the disci- provide “shall requires inmates, pun- pline including and conduct of character is discipline.” exemption for violations of There no ishments 1 of the §in from of title subtitle requirements 3-205 (SG). State Article Government (which
SG, through §§ 10-101 comprises title subtitle 10-117) Procedure Act part State Administrative regulations. applies every It dealing adoption Government, unit in the Branch unless Executive State *4 § Neither by law. SG 10-102. expressly provided otherwise nor so subtitle to both exempted, applies DOC DPSCS is the Department and the Division.1 APA, attempt escape DPSCS requirements
1. In an to from the departmental sponsored a Session General bill the 2005 of the 2-109(c)(2) Assembly provide which have that would amended CS SG, 10, apply requirement compliance wilh title subtitle 1 did not classification, discipline, or See HB to the conduct of DOC inmates. “regulation” The term is defined in 101(g)(1) SG as a 10— statement, (1) or amendment repeal statement, or of a (2) general application effect, (i) has and future is adopted carry (ii) detail or out a administers, law the unit govern (iii) the organization procedure unit, or or govern (3) unit; practice form, before the in any including a rule, standard, guideline, interpretation, statement of or state- ment of policy. Section 10-101(g)(2) excludes from the defini- tion, here, other among things not relevant “a statement ... concerns internal management of the unit and ... [ ] does not affect directly rights of the public or the proce- dures available to the public.”
SG, title subtitle 1 imposes procedural requirements on adoption regulations. certain exceptions With for emer- (1) gency regulations, it requires that the unit submit a proposed regulation to the Attorney General unit counsel (§ (2) for approval 10-107), as to legality submit proposed regulation the General Assembly’s Joint Committee on Administrative, Executive, (AELR and Legislative Review Committee) (§§ at least 60 days prior 10-110, to adoption 10- (3) 112), publish proposed regulation in the Maryland Register (§ at least 45 days (4) prior adoption 10-111), and after adopting a regulation, submit the full text of the regula- tion to the Administrator of the Division of State Documents for publication in the Maryland Register and the Code (COMAR) (§ 10-114). Maryland Regulations A regulation is not effective until each of those requirements has been met. §SG 10-117.
Pursuant to their respective authority under §§CS 2-109 3-205, the Secretary Commissioner have a number of regulations SG, accordance with title 1; subtitle they appear COMAR, title subtitle 2. ofMost governing rules the operation of the State correctional facilities, however, especially inmates, those dealing with are in the form of “directives” adopted either the Secretary (2005). The bill report received an unfavorable the House
Judiciary Committee and pass. therefore did not *5 (DCDs) (DPSCSDs) any without by Commissioner SG, 1. Those title subtitle compliance with pretense promul- substantial volumes them —were directives —seven relat- policy procedures and establish formal written gated “to opera- administration and of correctional ing aspects to all principally 1-3. are concerned DCD We tion.” case, and, a lesser in this and 105-5 to extent 105-4 DPSCSD 185-403, applicable which are through 185-001 with DCD Division. all within the institutions First, appendix, in an things. 105-5 does
DPSCSD two inmates subject of conduct will directive defines kind into five listed, are divided Fifty-seven offenses discipline. I include such Category of seriousness. offenses categories activities, acts disruptive committing as things engaging violence, contra- dangerous and or other possessing weapons in- II refusals Category mostly offenses involve band. in activities that result in their removal participate
mates to gam- III programs. Category from certain offenses include theft, less and the of certain somewhat bling, possession disobey- contraband. IV include Category offenses dangerous work, order, infor- ing refusing to false giving a direct lawful calls, mation, making phone possessing unauthorized and contraband; include Category other kind of V offenses failing badge, one’s things display such identification cleanli- horseplay, to maintain engaging failing personal ness. charging also a prescribes procedure
DPSCSD 105-5 investigation It of conduct that requires prompt offenses. a offense, violation preparation constitute an of a “rule might information, report” containing report certain review of the and, shift if segre- a administrative supervisor, supervisor, a the shift com- gation punishment, by is recommended as 105-4, the shift if con- supervisor, mander. Under DPSCSD violation, may that there is IV or only Category vinced V an “incident rather than a “rule violation prepare report” An offer the inmate an report” disposition. informal avail- possible to DPSCSD 105-4 lists the sanctions Appendix ranging for an informal disposition, reprimand, able from loss of certain privileges, to cell restriction for up to one month. The may inmate the informal accept disposition by signing may reject the notice or it opt for a hearing.
If the inmate either is not offered an informal disposition or rejects one, he or she is seized awith formal Notice of Inmate Rule Disciplinary Violation and Hearing. 105-5 DPSCSD sets forth the for a procedures hearing before a hearing DOC may officer—when an inmate be found to have a waived hearing, may when charges be dismissed on prehminary re- view, the of a authority hearing officer to offer an informal disposition, the applicable proof, standard of of consideration an request inmate’s for or representation for the attendance of witnesses, motions, preliminary requests for postponement, a taking plea charge, to the of kind evidence that bemay admitted, defense, a presentation of fact-finding and decision officer, hearing and of a imposition sanction. The provides warden, directive also for an appeal to the review warden, options and the available the warden. 105-4, DPSCSD in addition providing for an initial offer of informal disposition, sets forth a matrix punishments for offenses, the various taking into account the category of the offense, prior the inmate’s history, any rule-violation aggrava- and ting mitigating circumstances involved in the instant violation, adjustment and the inmate’s history. may Sanctions restriction, include segregation, cell revocation of conduct good (diminution and special project program credits), credits loss of visitation and privileges other for periods various time. of those penalties Some are mandatory for certain offenses. Revocation of diminution credits is au- expressly 3-709(a) thorized by CS usually will result in an in- crease in the period inmate’s of incarceration.2 A finding of violation, sanction, may whatever also directly indirectly or that, 3-709(a) provides 2. CS an applicable "[i]f inmate violates the discipline, may rules portion the Division revoke a all or conduct) (good §§ diminution credits awarded under 3-704 and 3-707 (special projects) according of this subtitle frequency to the nature and of the violation.” to be or the parole an chance for sanction affect inmate’s event further in the violation. imposed deal with the processing 185 series of directives The DCD and con- policies, procedures, prison inmate about complaints services, courts, medical access things as ditions—such stolen, liberties, lost, proper- or confiscated damaged, religious health, force, safety, an inmate’s affecting use of conditions ty, welfare, Administrative the administration It is not available Remedy Procedure. See DCD 185-002. (offense) classification, decisions adjustment
protest parole, of formal or informal pursue complaints used to may but reprisals. Id. for three of the Administra- provides aspects 185-100
DCD informal resolution procedure, Procedure—-an Remedy tive investigation and resolu- to the complaint formal warden *7 level, of an appeal and a formal headquarters tion at the to Reme- by the Commissioner. adverse decision the warden substance, in change include a written dies available rule, of a or interpretation, application policy, procedure. or A complaint 1 to 185-100. formal is Appendix See DCD filing Request Remedy initiated a for Administrative by An appendix on a form attached as an to DCD 185-100. all required process coordinator is to remedy
administrative are for the complaints, investigators responsible formal on timely of an each completion investigation and sufficient assigned complaint. it may request upon determining
The dismiss a warden limits the number of is frivolous malicious. DCD 185-002 file may that an inmate requests remedy for administrative to administratively five a month and authorizes the warden an emergency dismiss determined to be any request not may by is in of that limit. A decision excess warden by A final decision the Com- appealed Commissioner. Administrative Remedy Proce- missioner exhausts the DOC Further administrative review lies with the Inmate dure.
Grievance Office. (IGO)
The Inmate Grievance Office a statutory is unit § within DPSCS. See CS 10-202. After exhausting DOC, Administrative in- Remedy Procedure an provided mate has a grievance against who an official or employee a may If, DOC submit after complaint preliminary IGO. review, the IGO Director Executive concludes that the com- face,” “wholly merit plaint lacking is on the complaint its may be dismissed a without and without hearing making 10-207(b). specific findings § of fact. CS Such an order constitutes final Secretary decision for purposes review. Id. Absent such a judicial conclusion, complaint referred to the Hearings Office Administrative for a hear- (ALJ) an ing before Judge Administrative Law in conform- the procedures ance with set forth in §CS 10-208. The ALJ merit,” that, a may complaint dismiss as “wholly lacking too, constitute will the final decision of the for judicial 10-209(b)(l). purposes. Otherwise, review CS prepares proposed ALJ Secretary. order review 10-209(b)(2). §CS The inmate is judicial entitled seek final Secretary. review from decision of the CS 10-210. Complaint
Massey’s 19, 2002, On an appellant Massey, June then inmate at the Cumberland, Western Correctional Institution submitted Request for Remedy Administrative to the of that warden institution. request handwritten was as follows: Dept. Safety “Current Public and Correctional Services (DPSCSDs) rules, directives pertaining to disciplinary pro *8 cedures and sanctions have been and remain adopted Correction, Commissioner of Mary [the] violation of the (APA), land Administrative Procedure Act State Govern (SG), ment Article Title Subtitle 1. are Said i.e., and I unlawful, currently am being punished, serving time, prison additional as a result. (My complaint is singular regulations are my unlawful and violate inter —the fairness). est any appropriate action and corrective request prompt
I fees, future in the event of etc. attorney damages litigation.” added).
(Emphasis Coordinator, appar- the Institutional about June On or warden, on request dismissed the for the acting ently limit of five monthly that had exceeded ground Massey 185-100, Massey appealed DCD In accordance with requests. 1, 2002, who, on dismissed July
to the Commissioner that the Institutional Coordinator concluding after appeal to DCD 185-205. complaint pursuant dismissed properly rejected that the Commissioner response We infer from that re- the five Massey had exceeded because appeal that limit DCD. quests/month allowed 10-206, griev- submitted a Massey
In accordance with CS that 185- grievance He his to be “DCD ance to IGO. stated complaints, the number administrative which restricts the Administrative per unconstitutional ineffective both (State Art., 10-113).” He clear Act made Procedure Gov’t complaint that the basis his Attachments five had limitation requests/month directive contained 27, 2002, the Executive validly adopted. August On not been as on its administratively appeal “being dismissed the Director He his rejection in merit.” did not base wholly lacking face and, limitation, however, requests/month on the appeal five indeed, “the necessary that it address stated would ARP issue with the dismissal procedural your associated I am because Remedy] complaint Administrative [Request In regard, the substantive issue.” prepared address he stated: fail your original adequate- did ARP complaint
“Not more complaint, importantly forth a but ly specific set you basis which referred to was erroneous. While general etc) rules, (e.g. disciplinary mentioned you the documents ‘directives’, you to as later errone- properly referred ‘regulations’ as under ously falling referred to them *9 Maryland Administrative Procedure Act. ‘Directives’ and ‘Regulations’ are separate two and distinct entities.” Clearly in implicit ruling IGO’s determination that the directives issued least those applica- —at Massey’s ble to complaint and grievance not regula- —were tions as defined the APA did not need to adopted be such. Massey then a petition judicial filed review in the Circuit for Allegany Court County. He to argued that court that his complaint was specific, that he challenged validity of directives that subjected him to increased punishment and courts, restricted his access to the that the qualified directives as regulations that had adopted accordance -with the APA, and that they did not guidelines constitute as to routine internal management. The State’s response was that 105-4 DPSCSD and 105-5 concerned internal manage- ment and did not affect directly rights public procedures available to the public, and that they therefore did not have to be SG, conformance 10, title subtitle 1. (as
After a hearing, which Massey appeared he had throughout) counsel, court, 10, without on March an entered order affirming the IGO decision. No reasons given. then Massey filed an application for leave to appeal to the Court of Special Appeals. That court eventually granted the application and transferred the case to its regular docket, but, before argument, we granted certiorari on our initiative to own review the two issues raised in Massey’s brief—whether the directives relevant this case are subject SG, title subtitle and whether the IGO should have set the matter in for hearing. We need not address the second issue.
DISCUSSION , The Issue Before Us thing first need to we do is determine more precisely what is before us. Massey filed a request for administrative remedy pursuant to the DCD 185 series. He was thus pursuant adopted by Commissioner a “directive” invoking subjected had been that he complaint His to CS 3-205. to the pursuant credits lost diminution and had discipline *10 105-4 and of DPSCSD and procedural provisions
substantive invalid, least, in 105-5, part, he to be believed which in with the conformance they adopted had not been because clear, not to challenge, initial as he made was APA. His for the of infraction that called he was an guilty whether pursu- Secretary’s to the directives imposed only but discipline adjudicated. to the matter was ant which Coor- by the Institutional complaint was dismissed
Massey’s solely he had by the because ultimately dinator and warden in DCD limit established requests/month exceeded the five of his That not the basis for the 185-002. dismissal was IGO, not expressly the The did complaint by however. IGO on issue but instead ruled procedural impediment reach the holding that DPSCSD Massey’s request, the merits of initial that needed be 105-4 and 105-5 were they in with the APA and that were adopted conformance effective. therefore valid and decision, is of which
Judicial review in this instance the IGO 207(b)(2)(H), and, § summary under CS dismissal was 10— § Secretary. the final of the See CS 10- constituted decision 210(b) (“The judicial is entitled to review complainant 207(b)(2)(ii) ... final under of decision 10— subtitle.”). Secretary, final decision of the other this The words, regula- that were not DPSCSD 105-4 105-5 adopted tions needed in conformance with APA. that or not concerned here the application We are therefore with series, validity only but whether DPSCSD of the DCD legally 105-4 and 105-5 are effective.
The does not 105-4 and 105-5 State contest DPSCSD § 10-101(g)(l), “regulation” fall within the definition SG case.3 statements that clearly They is the constitute dealing important It are not here with all of the 3. to note we Secretary, only applicable in by issued but those this directives have general application throughout all of the correctional institutions to all apply DOC and inmates in those institu- tions; effect; have they they future a “unit” carry administers; out that the unit laws and they are in rules, standards, the form of statements of interpretation, and of policy. statements defense posed by State is that the Secretary is from
excused complying procedural requirements (1) SG title subtitle 1 because concern “only directives management internal unit not affect directly [and do] rights public procedures available to the public” and therefore are excluded 10-101(g)(2) SG from (2) the definition of “regulation,” and “guide- constitute a line pertaining the routine internal management correc- and, tional facilities in the Division of Correction” even if *11 regulation § deemed to be a 10-101(g), under SG they need adopted SG, not be in conformance with title subtitle 1 virtue of 2-109. CS provisions,
As to position both the State’s is the Secre- tary’s directives govern how DOC maintains order and man- ages the inmate population, which are matters of internal management refers, which great flexibility is It required. in that to some regard, of the more mundane provisions, such as the correctional is to prepare how staff notices of disciplin- ary infractions and the manner in may which inmates waive a Massey out, course, of hearing. points that the directives do a great more than deal that —that they define both the substan- tive and under procedural construct which inmates may have their incarceration extended and thus affect Constitutionally- protected liberty interests. Both parties cite out-of-State support cases to their respective positions. Secretary case—DPSCSD 105-4 and We do 105-5. caution the and the very carefully to review they Commissioner all of the directives that issued, however, determine, have perspective, their least from
whether, light Opinion, they of this need to be the form of regulations. Secretary Authority arguments of particular address the Before we matter consider a more fundamental we need to parties, merely effective validity, on rather than directly bears are ness, 105-4 and 105-5 the two directives. DPSCSD of Secretary, presumably pursuant adopted by directives 2-109(c). the Com adopted by are not directives They §CS in clear That why, to CS 3-205. pursuant missioner in the other many 185 series and DCDs contrast to DCD directives, as are denominated volumes of seven Ser Public and Correctional Safety (Department DPSCSD (Division Directives) than of Correction DCD vices rather whether, if Directives). question A thus arises preliminary are, indeed, guidelines pertain 105-5 105-4 and DPSCSD facili management internal correctional to “the routine Correction,” ardently the State so in the Division of as ties adopt contends, any statutory had Secretary authority them. states, § 2-109 in full:
CS “(a) regula- Secretary adopt shall Secretary. —The Office Secretary. for the office of the tions (1)
(b) Secretary regulations Review units. — proposed by Depart- a unit in the review regulations shall ment.
(2) or revise may approve, disapprove, The Secretary Department. a unit in the proposed by (c) Except provided para- (1) Correctional facilities. — (2) subsection, adopt shall this graph *12 cor- management the policies regulations govern in accor- facilities in Division of Correction rectional 10, Subtitle 1 of the State with Title Government dance Article.
(2) (1) ato Paragraph apply of this subsection does not internal management routine guideline pertaining in the Division of Correction.” correctional facilities necessarily the State assumes presenting argument, In its (c)(2) simply it limited construction of subsection rather —that that regulations means adopted by the Secretary pursuant to (c)(1) subsection that pertain to the routine internal manage- ment of DOC correctional facilities need not comply with the regulation-making requirements of the APA. That is not the construction perceive, we however. Both the language (c)(2) subsection and the legislative immediate history of that subsection, especially 3-205, when read in harmony § with CS lead rather to the conclusion that regulations that pertain only to the routine internal management of DOC facilities are to be adopted by the Commissioner and the Secretary. The Secretary has the power approve, disapprove, or revise proposed regulations Commissioner, but there is no clear grant authority to adopt internal management regula- regulations tions as of the Secretary. (c)(2) (1)
Subsection states that paragraph “does not apply” to routine internal management guidelines. It is paragraph (1), however, that is the source of the Secretary’s authority to adopt regulations for the management of DOC facilities instance, first and if that paragraph “does not apply” to routine internal management guidelines, there would seem to be no authority for the Secretary adopt such guidelines. That impediment is even more apparent from the legislative history of the provision. § Revisor’s Note to CS 2-109 states that it was derived
“without change” 4-104(b) substantive from former § Art. (h). 4-104(b) § Former made the Secretary responsible for promulgating regulations “for his office” and empowered to approve, disapprove, or revise regulations of 4-104(h) various units in the Department. Section 2-109(c). predecessor direct of CS It contained three paragraphs:
“(1) Secretary] [The shall adopt regulations governing policies and management of correctional facilities within [DOC].
(2) (3) Except provided paragraph subsection, this notwithstanding provisions 10-101(e)(2)(i) of Article, State Government described in *13 10, (1) shall with Title comply of this subsection paragraph (Administrative the Article State Government Subtitle Regulations). Procedure Act— (2)
(3) (1) this and paragraphs The requirements to apply guidelines pertaining do not to subsection facilities within management correctional routine internal [DOC].” added).
(Emphasis ¶ (1) 4-104(h)(3) neither nor could not be clearer: Section ¶ (2) It management guidelines. to routine internal applied the APA just compliance requirements with was —subsec- (h)(2) authority conferred exempted; tion —that (h)(1) inapplicable to adopt also was regulations subsection All that code management guidelines. internal routine had been to combine what that section did was revision (h)(1) (h)(2) § 2- into one paragraph— paragraphs 109(c)(1) change. any substantive —without about a construction. nothing illogical
There is such management control over the gives The law the Commissioner DOC Commis prisons specifically gives within (and § its independent predeces in CS 3-205 authority sioner 27, 676) sor, regulations operation § Art. for the adopt DOC, including the maintenance of the facilities within disci management Routine internal pline conduct of inmates. micro-managed by to the and is not to be is left Commissioner if the correct in its State is Secretary.4 Accordingly, which, exceptions § with not relevant 4. We are aware of CS 2-113 here, Secretary any duty, responsibil power, "exercise authorizes unit, head, ity, appointing or officer in the function of unit not, 2-109(c), Legislature Department.” If had dealt in CS concerning manage specifically regulations internal with routine power expressly ment of facilities and withdrew the from the DOC kind, Secretary likely would most to issue of that 2-113 adopt regulations. question is permit the one of such intent, (hat, legislative long when and we have followed the rule there is dealing general specifically and one a conflict between a statute hand, specific Dept. Smack v. the issue statute controls. See Health, (2003) 378 Md. A.2d and cases 1179-80 part of there. to be construed is a an entire "[W]here cited statute vigorous assertion that DPSCSD 105-4 and 105-5 are merely guidelines pertaining to the routine internal management of *14 facilities, the DOC correctional they are ultra vires and invalid is, for that however, reason. The fact that those directives are not merely guidelines pertaining to internal management, routine or otherwise. Both the nature and history those directives make that clear. Management
Internal 1970, In eighty-two inmates, DOC after being transferred from medium and minimum security facilities to the segregat- ed confinement unit at Maryland filed Penitentiary, suit Court, U.S. District complaining procedures about the used to implement the transfer and the additional punishment meted out to them.5 The court agreed with the thrust of the scheme, statutory provisions construction of the of the scheme must be When, context, done in the context of that scheme. in that two statutes general
conflict and one is
specific,
and the other
may
'the statutes
by viewing
harmonized
specific
the more
exception
statute as an
to the
”
general
(citations
more
omitted)
one.'
Id. at
The due process is at of earned credits the revocation diminution least when risk, confirmed v. McDon- Supreme Court was Wolff (1974). 2963, nell, 539, 935 The 94 41 L.Ed.2d 418 U.S. S.Ct. that, a for diminution provides there held where State
Court revocation, interest is process liberty their a due credits and days good Penitentiary lost 105 conduct credit. from the minimum respect to the ten inmates transferred situation security facility, stoppage work and formation of an unautho- due to a association, was similar. rized inmate time, prison setting detailed was no handbook forth At the there general published of ten rules of conduct and rules. There was a list addition, In possible sanctions for the violation of those rules. list of setting forth administrative ad- was an administrative directive there infractions and for justment procedures disciplining inmates due to security inability adjust transferring of their to lesser them because Cannon, 165, (D.Md.1971). Bundy F.Supp. 168-70 See v. 328 status.
514
triggered
having
“the State
created
right
to good
—that
time
recognizing
and itself
that its
deprivation is
sanction
misconduct,
major
authorized for
the prisoner’s interest has
real
sufficiently
substance and is
embraced within Fourteenth
‘liberty’
Amendment
to entitle him to those minimum proce
dures appropriate under the circumstances
required by
the Due Process Clause to insure that the state-created right
arbitrarily
557,
is not
abrogated.”
2975,
Id. at
94
S.Ct.
41
Fano,
215,
L.Ed.2d at 951.
Meachum
Compare
v.
427 U.S.
96
2532,
(1976) (no
S.Ct.
The first
case
year
was decided within a
after the
Department
creation of the
of Public Safety and Correctional
as a principal department
Services
of the State Government
reorganization
and the
of the structure and governance of the
Laws,
State correctional system. See 1970 Md.
ch. 401. At
time,
Code,
(b)
Maryland
Art.
204C
authorized the
promulgate “rules and regulations for his office”
review,
and to
approve, disapprove, or
revise
“rules and
of all of the
regulations”
units
the Department,
including
204D(a)
DOC,
Art.
DOC.
created
perform
the func-
tions and exercise
powers
vested in
previously
the Depart-
ment of Correctional Services. The office of Commissioner of
27, §
Correction
created
Art.
673. Section 676 of that
article authorized the
adopt
Commissioner to
“rules
regu-
*16
Sandin,
past
6.
In
the
regarding prison
Court reviewed its
decisions
disciplinary regulations
procedures
and
approach
and reaffirmed the
it
may
had taken in
that "States
under certain
create
circumstances
Wolff
liberty
protected by
which
interests
are
the Due Process Clause. But
generally
these interests will be
limited to freedom from restraint
which,
exceeding
while
unexpected
the
in
sentence
such an
manner
give
force,
protection by
as to
rise to
the Due Process Clause of its own
imposes atypical
significant
nonetheless
hardship
and
on the inmate in
Sandin,
ordinary
the
prison
relation to
incidents of
supra,
life.”
483-84,
(citations
U.S.
Requirements 41, § required are Art. then than rigorous less now. Attorney to to the agency proposed
an submit 245(c) to of that Article approval legality; as General or otherwise adoption, publish the required agency, prior regulation persons and afford interested proposed circulate them, on or orally writing; comment opportunity an certified of the agency copy the file a required § 246 the Appeals, Court of Secre- regulation with Clerk State, other depositories. certain tary Attorney fact that Although presume we from the may Bundy that he represented the State in the case General attached as agreed-upon procedures Appen- an approved the court’s there is no indication opinion, dix to the other complied or the Commissioner no in the of this Court has requirements then law. The Clerk being of a filed. copy procedures record certified that, as Secretary and Commissioner assumed Perhaps time, adopted initially APA in in 1957 substan- 7. The effect at the "rule,” “regulation,” than tially rewritten in used the term rather including regulation essentially "rule” was as as but defined Code, Maryland "regulation” is See Art. now defined. 244(c) (1982 definition, it had the 1957 Repl.Vol.). since enactment, scope concerning only "regulations excluded from its management agency directly affecting rights internal and not procedures public.” available to the *17 the procedures formed part order, of a Federal court it was not necessary to comply with State statutory requirements, minimal though they were. requirements
The new for adopting regulations were enact- (1972 ed in 699) 1972 and 1974. The Laws, 1972 law Md. ch. created the AELR Committee and required that agencies, days prior least 80 to the adoption “rule, of any regulation, or standard,” submit copy to the committee. The 1974 Act— (1974 600) State Documents Law Md. Laws. ch. —created COMAR and the Maryland Register and required agencies to send a copy proposed rule or regulation to the Adminis- trator of State Documents at least 60 days prior to adoption, for publication the Maryland Register. The current organi- zation and of the terminology APA provisions were enacted as part State Government Article —a Code Revision prod- See 1984 Md. uct—in 1984. Laws, ch. 284.
The current versions of DPSCSD 105-4 and 105-5 January, 2002. Although the Secretary and the Commissioner are obviously still respect bound to the due process requirements enunciated in Bundy, Wolff, and San- din, it seems clear that those directives were not adopted to, pursuant of, and did not become part any extant Federal court order. There is no indication that they were ever submitted to or approved by the Federal court. They are purely regulations. Nonetheless, State the fact from, proceeded and were designed to implement, basic Fed eral process due requirements is powerful evidence that they are not merely guidelines routine, non-routine, or even internal management, subject to change at the whim of the Secretary or the Commissioner. At least discipline where may to lengthen serve an inmate’s period of incarceration or subject an inmate to other “atypical” punishment, regulations of that kind are required to protect the Constitutionally-based liberty interest of prisoners. Neither the Secretary nor the Commissioner could simply abrogate them put nothing their place, or amend them in a manner as would cause them not provide Constitutionally-required protection. confirmed essentially Special Appeals Court Comm’n, Md.App. v. Md. Inmate Griev. Hopkins
view in *18 nom., (1978), sub 329, 1213 cert. dismissed 391 A.2d (1979). prede there was a 120 At issue 285 Md. Hopkins, v. 105-5, charged an inmate that requiring
cessor of DPSCSD 72 hours hearing afforded a within rule be with a violation by exceptional prevented infraction unless alleged after occurred five hearing Hopkins afforded circumstances. reject infraction. IGO days, than three after the rather
days, justified delay that the was holding Hopkins’ complaint, ed and the not prejudicial, circumstances and was exceptional review, Court, affirmed that decision. judicial on Circuit the record did concluded that Special Appeals The Court of and that exceptional a circumstances support finding not but was merely directory, the time was not requirement in ex then the enunciated U.S. mandatory. Applying principle 260, 499, 98 Shaughnessy, rel. Accardi v. 347 U.S. 74 S.Ct. well-established, (1954), court held it to be L.Ed. 681 rule, an administrative regulations adopted by that general waived, in disregarded agency suspended, cannot in regulations as those remain force. particular long case so there to that recognized exceptions The court agency’s departure one of was an general principle, which transaction of adopted orderly from rules for the “procedural at agency Hopkins, supra, Md.App. business.” concluded, however, at regulation A.2d at 1217. It type: issue not of that 2(c)(1)],
“It is clear that
Rule
which is couched
[DOC
105—
intended to
mandatory language, was
unambiguous,
procedures
specifically
internal
but was
govern
agency
safe-
procedural
to confer
benefits and
adopted
important
”
upon inmates....
guards
Id.
We dealt with
(2003).
a directive
Md.
Our the “Accardi doctrine” a court must applies, agency regulation
“scrutinize the rule or at issue to deter- if Accardi because it individual implicates mine it ‘affects and or whether it confers rights obligations’ ‘important or, conversely, benefits’ whether Accardi is not procedural the the regulation because rule or falls within implicated of not exception require agency ambit the which does strict ‘procedural internal rules for the compliance adopted with business,’ i.e., orderly agency triggering transaction of Accardi doctrine.” the
Id. at 823 A.2d 650. here, course, Accardi, dealing We are not of with but the that analysis pertinent regulations is its distinction between “fundamental those that are rights,” especially affect Constitu- derived, and those tionally governing merely “orderly that, of The clear is agency implication transaction business.” if it regulation question rights, affects fundamental orderly not one that can be characterized as for the transac- of and thus not that agency pertains only tion business one routine internal management. adopting for many requirements exemption
An from of an management the internal pertain only nearly five Model APA been agency part has every State that has nearly in the appears law decades Although APA. there have the Model a version of rule or a particular whether determining cases many been there has exemption, falls within the ambit regulation meaning general comment on the been little surprisingly exemption. of that scope matter who have addressed
The commentators few one— and balanced was a pragmatic that the agree exemption “too rule-making requirements carry procedural completely would workings agency into internal far Gary M. if it enforced.” See activities agency stifle Agen Tunnicliff, Idaho Administrative Haman Robert P. & Act, 3 Procedure New Administrative and the Idaho cies Bonfield, (1966); Earl see also Arthur Idaho L.Rev. Construc Background,, Procedure Act: Administrative
Iowa Law, tion, The Rule- To Agency Public Access Applicability, Process, (1975) Bon Iowa L.Rev. making [hereinafter ]; Arthur Earl field, Procedure Act The Iowa Administrative (1986 Making § 6.17.2 & Bonfield, Administrative Rule State Auerbach, Rulemaking Administrative A. Supp.1993); Carl (1979). Minnesota, Bonfield 241-42 63 Minn. L.Rev. requiring agencies inefficiency expense noted the gave “every time comply statutory requirements matter sort to their no how employees, an instruction internal,” out, well, public benefit pointed *20 really is not affected public be doubtful because the “would agencies’ internal way large of the any cognizable by portion Bonfield, The Iowa Administrative matters.” housekeeping observed, Act, also howev supra, at 833. Bonfield Procedure er: hand, public subvert agencies easily could too
“On the other proce- those requirements they if could avoid rulemaking an directive to staff. dures for called internal anything all, be defined public’s rights easily After the can as to the staff—‘Punish formally agency statements addressed any person who litters a public park’ by statements —as formally public ‘Any addressed who person litters a — ” park punished.’ will public Id. book,
In his Bonfield viewed the internal management ex- clusion as “a very narrowly provision drawn with several important qualifications.” Bonfield, Earl Arthur State Ad- Making 6.17.2, meant, at 402. It is he ministrative Rule asserts, “to assure that internal agency matters of manage- ment are purely that concern to the its agency and are of staff effectively excluded from normal and rule-effec- rule-making added). requirements.” tiveness Id. In his (Emphasis law article, agreed review Bonfield that “no exclusion will be if allowed statement agency substantially rights affects of law; of a that public sort are as a matter of cognizable is, rights are normally which against enforceable or agency parties legal Bonfield, other through processes.” Act, The Iowa Administrative Procedure at 834. supra, The falling kinds statements within the ambit exemption, concluded, he “face inwards” and not “substantially do affect legal rights any public any or segment public,” as examples giving “purely personnel internal practices and directions.” Id. question of whether policies procedures like 105-4 and 105-5
DPSCSD should be exempt from normal governing adoption rules not new. At the time the Iowa and Minnesota written, law review articles were both Iowa and Minnesota had expressly addressed issue by statutorily expanding the “internal management” exemp- policies tion to include relating to inmates correctional State institutions, thus indicating policies those would oth- come erwise within A exemption. stylistically different but substantially similar approach was taken in the 1981 version the Model APA drafted the Uniform Law Commissioners. Section 3-116 of that Model Act not only from excludes the procedural requirements concerning rules internal management not substantially do affect procedural substantive rights segment of the public
521 inmates of a “concerning rules excludes separately but Auerbach’s and Bonfield’s facility.” or detention correctional section. Some to that in the Comment are cited articles Little, 459 v. Jensen approach. See States have Cor (N.D.1990) v. Beasley and Commissioner 237 N.W.2d (1998), noting the A.2d 487 rection, Conn.App. to that effect. laws and Connecticut
North Dakota exclu- separate interest is that the thing particular One APA, rejected by recently 1981 Model in the suggested sion in correc- inmates just covers Maryland Legislature, educational public in also students enrolled facilities but tional for the hospitals, to public admitted patients and institutions rule- to usual subjecting burden of “The sheer same reason: the thousands requirements rule-effectiveness making relation- daily agencies’ the details of these concerning rules intoler- students, would be inmates, patients ships with B onfield, able.” Rule Administrative Earl State Arthur Making note that 6.17.7, regard, 415-16. In that we in of students regarding disciplining basic requirements of Edu- Board adopted by the State schools were public APA COMAR appear cation in conformance with proce- those regard did not obviously The Board 13A.08.01. management. mere internal dures as judicially. the issue four have considered
At least States no rule or requirement York had Constitutional New to the ... as relates agency “except regulation any State management agency]” internal of [the organization of State. Secretary filed with the State effective until existing regulations suspended of Correction Commissioner adopted, disciplinary hearings to inmate pertaining He temporary. intended to be regulations their new place, State, and several not file them with did conducted under proceedings disciplined inmates who validity. their The Commis- challenged regulations the new to the internal relating them as sought justify sioner Smith, 64 N.Y.2d In Jones v. prison. management (1985), the court 1003, 489 478 N.E.2d N.Y.S.2d defense, holding: rejected
“Rules and correctional institutions that affect interests, here, a prisoner’s ‘liberty’ may not properly be *22 said to involve matters of ‘organization or internal manage- ment’, thus exempting them from the filing require- ments---- Such rules affect the entire prison population, that segment of the ‘general public’ over the Department which of Correctional Services exercises direct authority, constitute a ‘kind of legislative quasi-legislative norm or prescription which establishes a ” pattern or course of conduct for the future.’ (Citations omitted).
In Michigan, there was an exclusion for intra-agency di- of, rectives that did not affect rights or procedures and to, practices public. available An inmate sued to declare prison disciplinary rules invalid because not had been APA, conformance with the State and the question arose whether the rules constituted procedures affecting the rights public of the inmates part public. were of the —whether Corrections, In Martin v. Department 424 Mich. of (1986), N.W.2d 392 the court held that inmates were part of public and that the exclusion did apply. not The court rejected Department’s argument that prison discipline only rules affect the inmates and that public comment on those benefit, rules be would of little noting that belief “[t]his seems to overlook the obvious public concern of humanitarian and civil rights groups completely [and] overlooks the concern of the Legislature.”
Rhode Island and Tennessee have ruled to the contrary.
See
Corrections,
L’Heureux v.
Dept.
State
In Rhode the procedural rules governing prison disciplinary proceedings promulgated were comply Federal court decree. The rules were eventually reissued as part injunction of a permanent court, issued the Federal and both injunction the rules and the remained effect at the time of L’Heureux. A prisoner sued Department court, of those complaining in State violations Corrections nor the alleged nature of the Neither the violations rules. of the Rhode Island sought is thrust explained.
relief case provisions Court the contested Supreme opinion APA apply disciplinary proceed not inmate of the State did there proceedings and that decisions made those ings cited subject judicial cases were fore not review. Several analysis, proposition.8 for that Without benefit that, part then if the contested case simply court concluded rule-making require APA did neither did the apply, of the foregoing “We are the rationale persuaded ments: contest and state cases which involved federal [all the intricate provisions APA] ed case of the structure both and to the provisions relating our APA to contested cases ill power suited to the rule-making exercise would *23 of the ACI.” management population the often volatile L’Heureux, sweeping A.2d at In such a supra, 708 553. with brash, the not seem to take into broad Rhode Island court did prospect that the of diminution credits account revocation Rhode disciplinary proceedings perhaps be at risk in might — provide Island did not for such credits. in part by
The Tennessee decision was influenced
L’Heu-
reux,
part by
the court
in
the court’s
quoted,
which
Legislature
delegated
observation
had
“considerable
DOC,
Tennessee
from
deference
broad discretion” to the
founded,
proposition
holdings
part,
at
on the
in
8. That
is
least in
Wolff
McDonnell,
539,
2963,
supra,
94
41
935 and
v.
418 U.S.
S.Ct.
L.Ed.2d
Conner,
472,
2293,
supra,
418
Sandin v.
that,
515 U.S.
115 S.Ct.
132 L.Ed.2d
revoked, thereby extending prison
are
unless diminution credits
a
incarceration,
significant deprivation is
er's
or some similar kind of
prisoner
liberty
imposed,
Constitutionally-protected
a
no
interest
has
merely
prison
proceedings,
leading
to
disciplinary
the outcome
those
segregation
privileges.
theory
temporary
the loss of
seems to be
stake,
(1) if there
at
is no
is no Constitutional
interest
there
(2)
hearing,
right
Constitutional
to a
there is no Constitutional or
if
statutory right
hearing,
proceeding
to
is not a
case
contested
APA,
case,
(3)
proceeding
if the
not a contested
absent
under
is
statute,
Levi,
judicial
right
Clardy
there is
In
v.
no
review.
(9th Cir.1976),
Congress
the court
did not
F.2d
concluded
requirements
apply
intend for the contested case
of the Federal APAto
prisons.
disciplinary proceedings
Federal
inmate
which it concluded that
broad grant
“[t]his
of discretion also
envisions that
those persons intimately involved
system
intricacies of the prison
and not the voting public are
equipped
best
policies
establish
and procedures for inmate
Mandela,
discipline.”
supra, 978
S.W.2d
534. With due
respect
court,
to the Tennessee
that is not the issue. Clearly,
control
prison
over
management
DOC,
is vested in
subject to
the Secretary’s overall supervision, and not the “voting public”
or, indeed, the Judiciary.
111,
See State v. McCray, 267 Md.
(1972);
297 A.2d
Morton,
see also
v.
Lumumba
(1995)
280 N.J.Super.
The basic regime conduct, identifying prohibited setting ranges of discipline offenses, for the various and establishing due process-compliant procedures offenses, for charging in- forming inmates of the charged, offenses adjudicating culpability has been in place, modifications, with occasional over 30 years. It is the framework within which much of the discretion accorded DOC dealing with inmates operates. It is not the myriad of rules governing the prison details of *24 wear, life—what inmates may what they may or not may keep in their cells or on their persons, the rules governing security, sanitation, calls, hygiene, mail, visits, phone and for example— or the discretionary calls available to correctional officers when confronting inmate misbehavior that must be adopted as regulations, but only the Upon framework. this analysis, we hold that 105-4 DPSCSD and 105-5 constitute regulations under 10-101(g), SG that they are not exempt from the APA that, requirements, and effective, be legally they must be adopted conformance with those requirements.
Delayed, Effect sub fine line here be a between may there Although 105-4 deficiency DPSCSD legal the procedure, stance not they were essentially procedural 105-5 is one— requirements the procedural in conformance with his to relief on not be entitled may or Massey may APA. the his claim resolved claim, entitled to have but he is basic The Legislature procedures. validly adopted with accordance unless are not effective clear that has made statutory require the with compliance has been until there determination. legislative ments, enforced and we have (2002), PSC, A.2d 460 370 Md. Power v. Delmarva See (2002). the reconsideration, On Md. 809 A.2d on considerations hand, practical important there are some other observed, di account. As we taken into that must be with comport into in order place put rectives at issue were them simply declaring so process requirements, due Federal is place in their leaving nothing immediately ineffective proceed prison disciplinary bring That option. not an would halt. to a ings is 8-606, appeal of an disposition Rule Maryland
Under a mandate issued but opinion the Court’s evidenced It is opinion. with the clerk in conformance by the filing mandate, days issued 30 after ordinarily is which of the Court. Rule judgment that constitutes opinion, 8-606(b) delay the issuance to advance Court permits discretion, mandate, and, exercise that although rarely we this in order to delay is appropriate, one in which case is the APA comply require- Secretary time give end, clerk to direct the withhold ments.9 To that we shall claim, his is entitled to have Massey 120 days. mandate for moot, in accordance with valid considered it has become unless regulations. and effective ALLEGANY COURT FOR OF CIRCUIT
JUDGMENT THAT REVERSED; REMANDED TO CASE COUNTY proceed. how to We do advise the It not our function to 9. attention, however, 10-111(b). §SG call her *25 WITH COURT INSTRUCTIONS TO REVERSE DECI- INMATE SION OF GRIEVANCE OFFICE AND TO RE- MAND CASE TO THAT OFFICE FOR FURTHER PROCEEDINGS WITH RESPECT TO MASSEY’S COM- PLAINT; MANDATE TO ISSUE 120 AFTER DAYS OPINION; FILING OF THIS COSTS BE PAID BY TO APPELLEE.
BELL, C.J., Dissents and Concurs. thoughtful,
In a thorough, well reasoned opinion, “directives,” majority validity addresses the of certain of the adopted by Department State of Public Safety Correc (DPSCS), tional appellee, pursuant Services to which Jr., Richard L. Massey, appellant, having been found to them, have violated additional serving prison time. The appellant argued that the “directives” at issue this case are and, actuality therefore, “regulations,” to be required promulgated conformance the State Administrative (the “APA”), (1984, Procedure Act Maryland Re Code Volume) §§ placement 10-101—10-117 of the State Govern ment Article. After conducting appropriate analysis, the majority, agreeing with the appellant, concluded that 10-101(g)(1)1 “directives” are indeed “regulations,” as defined in Article, f the State Government because they o “constitute statements that general application have through- (1984, Volume) Maryland Replacement 101(g)(1) 1. Code 10— provides: the State Government Article 'Regulation' repeal means a statement or an amendment or of a statement that: (i) general application; has effect; (ii) has future (iii) adopted by a unit to: administers; carry detail 1. or out a law that the unit unit; govern organization 2. of the unit; govern procedure 3. unit; govern practice 4. (iv) before the form, including: is in guideline; rule; 1. a 2. a all apply institutions in DOC and out all the correctional effect; *26 institutions; they have future they inmates in those the out that unit adopted carry a ‘unit’ to laws were rules, standards, of administers; they are in the form and policy,” and of 389 interpretation, of statements statements 585, (2005). Moreover, 496, 507-08, contin- 592 Md. A.2d not con- “regulations” the the were statements majority, ued unit, that do of the not cerning management internal only the or lights procedures the the directly public affect appellee’s thus the contention public, rejecting available the the in regard, exception, 10-101(g)(2) in that that contained Then, respect to noting dispute the absence of a with applied. not allegation “regulations” these appellant’s
the APA, majority the the declared in adopted conformance with be and Id. at “regulations” to invalid ineffective. the majority at the holds “that DPSCSD Specifically, A.2d 587. under 10-101(g),
105-4 and 105-5 constitute SG from APA they exempt requirements, are the effective, that, in conform- to be must legally at A.2d 602. requirements.” ance with those Id. conclusions, in these I am holdings complete agree- With ment, in opinion point. so concur the to this
Having
respect
enforced the
mandate with
to the
legislative
majority,
the
promulgating regulations,
noting
manner
of,
for,
history
adoption
and the
of the regula-
motivation
in
comply
process
tions
this case—to
with Federal due
re-
concerned about
quirements
“bringLing]prison discipline
—and
halt,”
a
delays
the issuance of the Court’s
proceedings
days
mandate for 120
in order
will have time
appellee
standard;
3. a
interpretation;
4. a
or
statement
policy.
a
5.
statement
(g)(2)
"regulation,”
Subsection
excludes from the definition
inter
alia:
“(i) a
that:
statement
unit;
management
"1. concerns
internal
ights
directly
public
procedures
i
"2. does not affect
or the
public.”
available
with
comply
the APA. 389
atMd.
As to the appellant’s majority concludes that it alive, remains but that the appellant is not entitled to any specific relief. While it pointedly and expressly refrains from merits, opining on the the majority acknowledges that appellant has the right to have claim his resolved accor- dance validly with adopted procedures. Id. Implicit majority’s decision is either that the appellant did not raise challenge him to entitling dismissal of the charges against him such that, event, relief in any he was not and/or prejudiced by appellee’s failure to act in conformity *27 the APA. According to the majority, appellant’s] complaint
“[The
was that he had
subjected
been
discipline
and had lost diminution credits pursuant to the
substantive and procedural provisions of DPSCSD 105-4
105-5,
which
invalid,
he
least,
believed to be
in part, at
they
because
not
had
been
in
adopted
conformance with the
APA. His initial
clear,
challenge, as he made
was not to
whether he
guilty
was
of an infraction that called for the
discipline imposed
only
but
to the Secretary’s directives
pursuant to which the matter
adjudicated.”
was
Id. at
effect,
I have no quarrel serious with the decision to delay fact, mandate in this case. In in view the purpose regulations, specifically pointed out by the majority, see 389 are prisoners ensure that at 602—to A.2d Md. as Constitution —sensi- required process, due
afforded gap, without place, regulations such being to there tivity commendable, it is essential. not simply is to, and meted out the punishment charges
Whether upon to retrial subject should by, appellant challenged matter. another new, quite regulations valid adoption failed to appellant that the majority’s view I do not share he was of the infractions with which guilt of his raise the issue chosen, to chide altruistically, perhaps, charged, having default, entirely neglecting procedural to its only as appellee not The record does deficiency. the substantive challenge matter of fact. as a that view support “regulations that the complaint initial was
The appellant’s which, of his in violation unlawful,” consequence are required fairness, by being being punished he was interest And, although grievance time. prison additional serve of that addressed complaint the denial following he filed ex- complaint the appellant’s of the denial—that ground remedy for administrative requests the number ceeded argued he as which by regulation, appellee permitted deficiency as from the same suffered regulation that such validly promulgated— it not initially challenged, he those to his judicial reverted review petition the appellant’s subjecting that the he contended original ground: to court his access limiting punishment him to increased not because were validly adopted *28 APA. accordance with require, to believe, majority does and seems
I not do that objections regulations are that there various where seriatim, in made, complaint, separately and could be pursue each one he intends to must make expressly prisoner By necessary. That is objection. simply that preserve to which validity regulations pursuant of the challenging beyond it is clear cavil punishment, he had received additional simply raising more than whether doing was appellant procedural as a properly promulgated were regulations from his process, the entire contending issue: he was being charged, guilty found and punished, nullity. was a If the regulations forming invalid, the basis for an infraction are it seems to me clear that the proceedings pursued pursuant to regulations is, those can be no more valid. There in that circumstance, therefore necessity would, no that a complainant should, address the particulars proceedings; those dis- cussing the issue of his guilt appropriateness or the punishment imposed, circumstances, under these is simply unnecessary. irrelevant and
I
agree
majority
that the appellant “is entitled to
have his claim resolved in accordance with validly adopted
procedures.”
Md.
OF Petitioner v. KWARTENG, Respondent. Charles O. Sept.
Misc. Docket AG No. 7 Term 2005. Appeals Maryland. Court of Nov. 2005. ORDER The parties jointly herein have Petitioned this Court reprimand Respondent pursuant to Maryland Rule 16-772.