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COR-30-09-00018-A Standards of Inmate Behavior, Inmate Correspondence Program and Privileged Correspondence
12/9/09 N.Y. St. Reg. COR-30-09-00018-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 49
December 09, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF CORRECTIONAL SERVICES
NOTICE OF ADOPTION
I.D No. COR-30-09-00018-A
Filing No. 1328
Filing Date. Nov. 23, 2009
Effective Date. Dec. 09, 2009
Standards of Inmate Behavior, Inmate Correspondence Program and Privileged Correspondence
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 270.2, 720.3, 720.4, 721.2 and 721.3 of Title 7 NYCRR.
Statutory authority:
Correction Law, sections 112, 137, 70 and 18
Subject:
Standards of Inmate Behavior, Inmate Correspondence Program and Privileged Correspondence.
Purpose:
To revise correspondence procedures and inmate rules with respect to the processing/possession of UCC related documents.
Text or summary was published
in the July 29, 2009 issue of the Register, I.D. No. COR-30-09-00018-EP.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Maureen E. Boll, Deputy Commissioner and Counsel, New York State Department of Correctional Services, 1220 Washington Avenue - Building 2 - State Campus, Albany, NY 12226-2050, (518) 457-4951, email: Maureen.
Assessment of Public Comment
One public comment was received from an inmate legal service group which believed the new rules defining any UCC document as contraband were overbroad and could prohibit any legal pursuit of UCC theories. It was suggested that the regulatory scheme be reconsidered to define and prohibit the actual abuse.
In addition, several inmates have sent letters to the Department's Counsel asserting that the rule restricting access to UCC materials violates their Constitutional rights. Although these letters were not submitted as comments in response to the Notice of Emergency Adoption and Proposed Rule Making, we nonetheless address the concerns below.
RESPONSE
DOCS had considered language making an exception for "legal materials which set forth the statute or law review and law journal articles analyzing legal issues in the context of the UCC." However, because there are numerous books and documents that give step-by-step instructions for the would-be UCC abuser that analyze legal issues in the context of the UCC, we determined that such an exception could not be made. It is noted that each part of the rule permits possession of UCC related materials with prior authorization.
The comment, while conceding DOCS' interest in staunching UCC abuse, suggest that the regulatory scheme should be re-considered to define and prohibit the actual abuse. It should not be so broad as to prohibit 'any document' concerning the UCC theories." Unfortunately, an inmate can easily take a number of preliminary steps under this scheme without his or her actions being detected until staff or other members of the public have already suffered significant harm. Therefore the prohibition of the instruments to engage in this conduct is necessary to protect staff and others.
Several inmates have asserted that the rule infringes upon their constitutional rights to possess UCC materials and petition the courts for redress of grievances, wherein they seek to use UCC filings to support their claims for habeas corpus relief. DOCS notes that shortly after the filing of its Notice of Emergency Adoption and Proposed Rule Making concerning parts 270, 720 and 721, a proceeding was filed challenging the new rules in the State of New York Supreme Court, County of Onondaga (Hopkins v. Fischer, Index # 2009-5583). By Decision, Order and Judgment dated September 22, 2009, the court upheld the challenged rules finding that there is a rational relationship between the regulation and the legitimate government interests asserted to prevent harm to innocent victims of unauthorized UCC filings; the regulation is legitimate and neutral; the inmates have alternative means to exercise their rights in that the authorization process provides other avenues for the exercise of the asserted right; the misuse of UCC documents has had an adverse impact on the prison system; and no other reasonable alternatives exist which satisfy the government interest. The Court further found that access to UCC documents could properly be denied where they were sought in connection with a petition for habeas corpus relief and other matters referenced by the petitioner but unrelated to any commercial transaction.
