*1 inquiry intо discretion as an judicial just according to the
‘what would be premises.’ Id. Judicial dis-
laws in the ‘requires an actual exercise
cretion and a consideration
judgment are neces- circumstances which
facts and sound,
sary fair, just and to make a
determination, knowledge of the and a discretion upon which the
facts operate.’ 27 Discretion
properly C.J.S. (1959). Discretion which violates
at 289 is discretion abused.
these restraints added.) Judge Burnett’s defini-
(Emphasis equates ev- is sound and
tion discretion
enly Justice McDevitt’s observation dis- the most fundamental element of
cretion, thereof, is the exercise reason- we The “standard”
ableness. pas- guided is also found in the
should be Judge opinion, Burnett’s name-
sage from just? Does
ly, imposed is the sentence justice?
comport and ideals of with ideas Hooper of John for incarceration
thirty year term not reasonable fixed him, sentence, not reasonable as taxpayers Idaho who will
reasonable room, board, medical paying
bills for those 360 months.
809 P.2d BOURGEOIS,
David M.
Appellant-Respondent Appeal,
on MURPHY, Evans, Director,
A.I. and Jim
Warden, Mendenhall, Depart Elton J. Hearing
mental Officer of the Idaho Gen., Jones, Timothy Atty. D. Jim Orofino, Correctional Institution Gates, Legal Servic- Wilson Robert Idaho, Ap Respondents-Appellants on Div., Boise, respondents-appellants es peal. appeal. on No. 17757. Boise, Bourgeois, pro se. David M. Idaho, Supreme Court of
Boise. BISTLINE, Justice. 28, 1991.
Feb. Rehearing May Denied I. BACKGROUND Attorney General on office of respondents has of the above-named
behalf *2 appealed from appellate opening decision of the The State’s brief serves to ad- accuracy genesis district court of the Second Judicial District vise with reasonable Idaho, controversy giving single of the rise to the Cоunty, of the state of Clearwater issue: appellate decision was as follows: Bourgeois is an inmate appeal Mag- is This matter on from the of the Idaho State Board of Correction. istrate Court which held that the EMIT- filing At the time of the of this action he st test was a sufficient basis for a disci- being was housed at the Idaho Correc- plinary penitentiary action and (ICI-O). tional Institute-Orofino procedures for chain of cus- 2, 1987, September On or about tody handling samples legally urine Bour- geois and 9-11 other adequate. part. inmates were taken We reverse bathroom, searched, to the strip and or- Appellant produced evidence that there give samples. dered to urine When accuracy a confidence in the is 95% Bourgeois [complied pro- had ... with] EMIT-st urine test. While a accura- 95% viding sample, the urine he handed the sufficient, cy samples may in some cup to May, Correctional Officer who every samples here it is not. Of number, took his name and institutional marijuana, possi- tested for there is the cup noted it ledge on the and set it on a bility erroneously pоsi- will that five behind him. prison- tive. That means that of 100 five samples The urine collected were then given may ers who are not a second test taken to the alcohol treatment unit at disciplinary receive actions which will ef- Hospital testing. State North for parole eligibility privi- fect their or other Therefore, leges. Bourgeois’ a sample we hold that when urine was tested sample positive, drug sys- tests second con- use of the EMIT-st detection firming required. Disciplinary test is ac- tem. Defendants’ Exhibit 4. The EMIT tion, suspension, privilege enzyme immunoassay drug an or denial of test is de- system____designed well result based tection to detect the [otherwise] presence, quantity, an inaccurate test result. violation but not the of various drugs in disciplinary body. reference to kinds of the human that resulted from the EMIT-st showing positive A result card result Appellant’s test shall be stricken from presence for the in Bour- cannabinoids record. geois’ system was returned to the ICI-O.
Appellant
alleges
also
the chain of cus-
Defendants’ Exhibit 4.
was
report
A
tody
legally inadequate.
review of
issued a
offense
(DOR)
him
charging
being
thе record
has estab-
...
un-
indicates
State
procedures. Ap-
marijuana.
der the influence of
Defen-
legally adequate
lished
pellant
sup-
dants’
1.
produced
has
no evidence
Exhibit
port
allegation
that the test results
[Following]
disciplinary hearing
...
improper
sequel
were
because of
Mendenhall
Bour-
conducted
...
...
custody.
chain of
geois
guilty
was found
based
of the EMIT test and was
result
added).1
R. 74-75
(30)
thirty
days in disci-
sanctioned with
district court
The State contends that the
detention____
Ex-
plinary
Defendants’
positive re-
holding
erred in
that a
1.
hibit
urinalysis
to an
test does not
sult
EMIT-st
report
re-
offense
was
uphold the
constitute sufficient evidence to
by Respondent/Ap-
affirmed
viewed and
conviction,
petitioner’s
by depart-
in-house
pellant
September
on
Evans
Mendenhall,
mental
Elton
officer
J.
Brief,
(citations to record omit-
being
of intoxicants State’s
1-3
under the influence
ted).
(use
by Bourgeois’ ap-
[marijuana]).
This was followed
of cannabinoids
otherwise,
augment
up
way
what
of motion to
1. We work with the record which is made
below,
"sequel”
parties,
presumably
means or what word was
the word
submitted to the
us,
suggested
likely
approved.
party
intended.
Neither
has
“her,”
in com-
second
apparently
The district
peal
the district court.
court,
facility.
pun-
solely
department
mand at the
court reversed
i.e.,
district
point
liberty,
one basis. The
imposed
on one
was loss of
ishment
detention,
court held:
thirty days
sentenced
also,
the loss
sample
positive,
presently,
tests
far as is known
a urine
so
When
*3
required.
peti-
confirming
Bourgeois’
test is
Dis-
good
second
of his
time credits.
action, suspension, or denial of
ciplinary
laid be-
tion for issuance of the writ also
based
an
privilege may well result
the contention
fore the
inaccurate test result.
methodology in
prison’s
establish-
ing
federal
guilt
his
in violation
the
was
of the
presentation
To
State’s
75.
the
guarantee
process:
of due
constitution’s
following:
facts, Bourgeois added the
hearing proceeding]
the
[At
a
Respondent Mendenhall used
Mendenhall, Respon-
DHO
present were
finding
to
his
Emit test result
base
legal
requested by
a
dent and
assistant
guilty
the offense with
Petitioner was
Respondent.
Respondents
charged.
he
which
was
of the aforemen-
At
the conclusion
per-
test
failed to have an additional
hearing, DHO Mendenhall found
tioned
to
conclusiveness of
prove
formed
the
guilty of
the
offense
Respondent
Emit
when admitted
the first test.
tests
Respondent
charged
sentenced
to
and
to
have been held
exhibit
(30) days in
unit at
thirty
the detention
in
as evidence
both court
inconclusive
the
at Oro-
Idaho Correctional Institution
prison disciplinary hearings.
fino.
facts that DHO Mendenhall
to
Respondents failed
establish
were,
finding
guilt
relied on for the
sample
custody of
in
chain of
body
of the
evidence contained
no
question. Petitioner had
idea of the
report and the
Result
attached
ST
sample
han-
manner
which the
was
Card.
dled,
nor the conditions which the test
Brief,
Bourgeois, in
Respondent’s
3.
his
performed.
was
Court,
contends:
brief filed
this
R. 4.
single positive
result of an EMIT
That
urinalysis
does not constitute suffi-
being
to stand on
Rather than
content
discipli-
uphold prison
to
cient evidence
assertions, Bourgeois
mere
buttressed his
guilt.
nary finding of
and contentions with citations
statements
holding
on
should
authority
The district court erred
which
examination
legally
аde-
state has established
some comment.
have at the least drawn
quate procedures
proper
as well as a
applicability
argued for the
custody.
chain of
which,
authority
very
then
recent
having
very
area
law
had but
short
Brief,
Respondent’s
seemingly
to some
history,
was entitled
parties with
magistrate provided
particular, Bourgeois
cit-
consideration.
summary
explanation
no
To
for
denial.
Resig2
Wykoff
ed
contrary,
well-prepared petition
(N.D.Ind.1985),
by Judge Allen
authored
Bourgeois thoroughly
grounds
stated
opinion
That
believed to be of
Sharp.
was
should have
which an alternative writ
law
enough importance relative
guilty
Bourgeois had
found
been
issued—
at a
disciplinary proceedings that it was
prison
hearing
left
published,
reasonably should have
denied
much
authorities
to be desired. The
give
magistrate to at least
some
caused the
certain,
probably
him
one witness
merely
pause. Bourgeois did not
mention
two;
personnel
was
one witness
staff
passing,
quoted
from di-
Wykoff
but
inas-
paid
would have had to be
overtime
setting
judge’s
out
petition,
in his
rectly
to take
much as the
was scheduled
plain-
recounting
testimony
nonworking
place during
hours. The
expert:
tiffs
record as
other witness is referred to
volved,
briefing
Wykoff.
also
attorney general
its
cited
later
in-
2. When the
became
The EMIT
way
test is a
to screen urine
had,
sued.
day
Thereafter a one
trial was
samples quickly and efficiently;
that it
only
but
after the State had filed the re-
final;
was never meant to be
and that it
sponse which
statutorily required,
way
get
negatives.
ais
rid of the
The which the district court directed. The re-
system,
manufacturers of the EMIT
sponse
exceedingly sparse
mostly
Syva Corporation, recommends that all
conclusory.
positive EMIT results be confirmed
When
district court ordered that the
greater degree
certainty
where a
issue,
writ
prosecutor
apparently
required. The Federal Bureau of Pris-
sought and obtained the services of the
ons also
urine sam-
Idaho Attorney
Attorney
General. The
ples
pos-
‘be validated to substantiate the
General’s office
response
submitted a
itive result.’
Id. 613
*4
court,
the district
consisting
parts.
of two
5;
Wykoff,
F.Supp.
R.
613
See
at 1508-09.
In the statement of faсts the State laid out
Bourgeois’ case involves the same exact
very nicely
procedure
the
sup-
which is
EMIT test as was involved in Wykoff, dif-
posed
followed,
to be
but offered no contra-
fering only
setting
in that the
is in Idaho
diction to the statements in the brief of
rather
than in
Indiana.
con-
Bourgeois as to
actually
place.
what
took
petition
ceded in his
Wykoff holding
s
that:
“EMIT results could be used as evidence of
argument
brief,
In the
part of the
guilt in
disciplinary hearing
when the
McDonnell,
State cited
v.
418 U.S.
passes
chain
custody
constitutional
(1974),
proposition
539
for the
pris-
that “in
scrutiny and the test results are con- on law
safeguards
the same
apply
which
by an alternative method
test-
firmed
proceeding
a criminal
place
have no
in a
5;R.
ing.”
Wykoff,
F.Supp.
see
613
at
prison disciplinary proceeding.” R. 22-23.
(emphasis added).
1512
Hill,
Walpole
State cited
v.
U.S.
Wykoff, Bourgeois provid
addition to
(1985),
105 S.Ct.
method
cases from
The second of the two federal
interesting to note that
of New York cited to
It is
while the
the Southern District
promul- by Bourgeois
Coughlin,
has
federal Bureau of Prisons
Peranzo
(S.D.N.Y.1987).
alia,
Judge Leon-
requiring,
gated regulations
inter
randomly sample
ard Sand held
Peranzo:
that ‘staff shall
each
population during
institution’s inmate
accuracy, the
a 98
rate of
%
[W]ith
+
use,’
drug
they
month to test for
performed by
each
testing
double
require
sufficiently
also
that ‘staff shall have each
the DOCS is
reliable so
evidence,
positive urine test validated to substanti-
the use of the results as
even
evidence,
only
ate the
result.’
C.F.R.
as the
550.30(a), (b).
regulations
process.
offend due
do not
does not
§
validating
specify what
initial tests or
added).
at 105
utilized.
procedures are to be
Eighth
case
Judge Sand relied on an
Circuit
present plaintiffs
submit
affida-
finding
that the use of
EMIT tests
two
Gross, Ph.D.,
Leo
verified Decem-
vit of
provided
reliable evidence
doctor-
ber
1983. Dr. Gross holds his
process concerns:
light
of due
*6
biophysics,
ate in
and is research director
Superin-
In
under the
a recent decision
Medical Research Foun-
of Waldemar
standard,
Eighth
Hill
Cir-
tendent v.
quotes
printed
His affidavit
dation.
test,
‘the EMIT
as used
cuit has held that
by
statement issued
the manufacturer of
Penitentiary
at Iowa State
with a confir-
process:
the EMIT
test,
matory second
contains sufficient
reliability
provide some evi-
many
indicia of
Because
variables
Farrier,
levels,
drug
Spence
dence of
use.’
v.
ordinary drug
an EMIT-
affect
Cir.1986).
(8th
807 F.2d
only
st test result
as an
is useful
indication____
should be
Results
Peranzo,
(emphasis add-
F.Supp.
at 105
by ...
an alternative
ed).
confirmed
analytical method
equally sensitive
Wilson,
Higgs
cited
v.
rights or other corrective
when loss of
(W.D.Ky.1985),
sup-
to further
contemplated.
action is
process
port
contention that his due
his
¶ 4.
Gross affidavit at
single,
by
violated
the use of a
rights were
phenomenon
Dr.
Gross also discusses
in a
EMIT test as evidence
unconfirmed
falsity
positives,’
5-7. Their
of ‘false
disciplinary hearing. Higgs held that the
by alterna-
may apparently be detected
prelimi-
entitled to a
plaintiffs
inmate
were
methods,
chromatog-
testing
enjoining
tive
such
corrections offi-
nary injunction
8. It
raphy
spectrography.
taking any disciplinary
and mass
cials from
appears
solely
material submitted
on the uncon-
against
from other
inmates based
common,
urinalysis
tests.
by plaintiffs that
the use of
firmed results of
may
the court stated:
arriving
medications
In
at this result
nonprescription cold
drugs.
the EMIT test results for
skew
stripped
all of their
are not
[I]nmates
Burton, July
Ann
1984.
Memorandum of
They retain the
rights.
constitutional
fairness
right minimum fundamental
present
regard
I
While
do not
rights.
process
due
and diminished
strong enough to
plaintiffs’ showing as
McDonnell,
418 U.S.
in-
v.
preliminary
justify the issuance of
(1974).
court
Kane v.
partA
The Massachusetts
In his traverse to Bour users of this test that Adams, (as geois pаckage in- also cited Pella v. tive result stated (D.Nev.1986). sert) by There the district should be confirmed an alterna- grant judg summary court refused to a tive method.’ Plaintiff’s Statement challenged against ment an inmate who Material Facts No. 51. against him disciplinary action taken February published A 1983 letter test, predicated EMIT
was on by toxicologists in three the Journal of genuine stating that there was a is the American Medical Association fact, namely reliability sue material ‘adequate states that confir- alternative of the test. 638 matory tests must be used’ urine tests Id., Notwithstanding overwhelming marijuana for use. No. 50. jurisdictions weight authority from other advisory by A scientific written contention that supported Bourgeois’ disci- United States Center for Disease Control EMIT test plinary action based on published by the Public Health Ser- process, found: violated due Department vice of the of Health and 16, 1983, September Human Services on LAW CONCLUSIONS OF samples positive stated that ‘[a]ll provides 1. The EMIT test a sufficient by assay need to con- cannabinoid finding viola- basis for a firmed an alternate method that is as Penitentiary.... tion Id., screеning test.’ No. sensitive as process rights 3. Petitioner’s due have 49.
not been violated. study A of the EMIT test scientific R. 70. Air the United States Force School Aerospace pos- Medicine that all McKenzie, Jones by gas liquid confirmed itive results be (D.D.C.1986), yet authority an additional chromatography being reported before filed in cites the brief or released to the Air local commanders It there held that a school this Court. was Id., Force. No. testing posi- discharged bus attendant for single, to a unconfirmed EMIT test tive of the need Additional corroboration summary judgment that was entitled to a appears for the numer confirmation capricious. discharge arbitrary her courts ous decisions state and federal following evaluation of The court made the country, including opinion around the EMIT reliability test: in the District of Colum of an arbitrator the EMIT bia, positive Plaintiff establishes single, unconfirmed test was the sole basis for defendants’ EMIT test is not a rational basis employment. her decision terminate disciplining subject of the test. Moreover, undisputed that defen- Arbitration between the Matter of confirm thе State, dants failed to County American Federation of *8 despite the manufacturer’s report test Municipal Employees, District warning ‘positive that results clear label 2093, 20, AFL-CIO and Local Council by an alternate should confirmed be the District Education the Board of of Affidavit, 9) method,’ (see Soley Exhibit Columbia, AAA No. 1639 0030 Case of express Superintendent’s as well as the (Dec. 3, 1985); also Anable v. 85H see finding of an that a directive 84-6033, F.Supp. Ford, slip op. No. [653 ‘confirmed approved illicit narcotic substance’ is 12, 1985); (W.D.Ark., July Higgs v. 22] terminating employee for basis for 83-0256P(J), slip op. Wilson, No. drug abuse. 22, 1985); v. (N.D.Ky. Feb. Johnson (Vt.Su S61-84R,
Walton, slip op. No. Moreover, 14, 1984). numer 8, per.Ct. Feb. report by the Food and A June 1983 have further estab court decisions govern- several ous Drug Administration to usage that a matter of lished as agencies reviewing the EMIT test ment by manual not effected is important to remind confirmation that ‘it is stated of See, process clause ent with the due of an automated test. rerun Wilkinson, 82-1283, hold fourteenth amendment. We e.g., v. No. Crowell 12, (M.D.Pa. of due as used was in violation slip op. procedure WL Oct. 1562] [1983 1983). Coughlin, v. Compare process. Peranzo 1507, 1514 and n. following magistrate found the facts The
(S.D.N.Y.1985). custody of urine regarding the chain of McKenzie, F.Supp. at 1505-06. Jones v. samples:
Far,
per-
being
from
least
far
The
of
has
Department
2.
Corrections
Washington
from
case
place
handling
suasive is
of urine
policy
for
attorney general would
samples
prisoners.
which
from
taken
deprive an inmate of
have this Court
policy
handling
The
for
urine sam-
3.
Johnston,
process rights,
Petition
ples
custody
as to chain of
of evidence
of
(1987).
followed____
The
745 P.2d
Wash.2d
was
opinion
can be
of that court’s
best that
said
allegation
showing
There
no
or
5.
was
recognition
gives
to au-
properly
is that it
any specific problem
the chain of
of
with
thority
upon by
has
relied
which
been
custody
sample.
of the urine
Bourgeois,
Coughlin, Supt. v.
Peranzo v.
magistrate made the follow-
R. 69-70. The
Hill,
McDonnell, Frye
v.
v. United
ing
regarding
of law
the chain
conclusions
and,
mind,
States,
strangely my
Jensen
custody:
of
Bourgeois points
out
Lick.
procedures
Department
2.
was
court reached a decision that
Johnston
samples
handling urine
Corrections for
very
some
law
cоntrary to
case
legally adequate and no variation from
sup-
precedent
purported
with which
petition-
procedure
regard
decision,
Farrier,
i.e.,
port
Spence
its
sample
er’s
has been shown.
(8th Cir.1986),and
geois validity raised to thе has allegation was no found “[t]here procedure regarding State’s the chain showing specific problem with the samples custody the urine sample.” R. of the urine chain compulsion, their gave, inmates under however, Bourgeois, clearly alleged are test- up samples match with proved defect with the chain a serious *9 later place at and at a ed another distant custody. petition In his for habeas cor- time. response in pus and his traverse to Bourgeois alleged prison authori-
II. CHAIN OF CUSTODY made no written documentation ties 4, sample. custody of the urine actions chain of corpus in habeas 43, only Bourgeois did make brings us 45-50. Not disputed fact. This is trier issue, allegation, there is found in the namely, whether the this but to the second page signed 37 this admission of handling samples consist- record of urine State’s 7, 1988, pertain dated March wherein the to custody the State the chain of of a urine allega- had admitted the truth of the sample state drug testing purposes: taken for Response Discovery, to tion: “[I]n 3, Respondent paragraph no. of Ida- [State Custody Sample Chain of of Urine ho, states, there exists no et written ah'] spe- It should be understood that the concerning chain cus- documentation process applies cies of due to CAB sample the urine taken from Peti- tody of proceedings, as announced in v.Wolff R. 47 added Bour- tioner.” McDonnell, supra, is of a limited varie- Response Discovery, R. 37. geois); see However, ty. process minimum due as a matter of law that the We hold important and must be cor- followed procedure handling urine sam State’s applicable. rectional authorities when prison right ples violates a inmate’s to due certainly standard does not Wolff process of the law under the fourteenth give process a due carte blanche to cor- patently amendment. It is clear that the rectional officers. Neither does the procedure does not include or even make a process minimum due standard Wolff pretense including, critical documen presume good the absolute faith and in- of the chain of of an in
tation
tegrity of all correctional officers at all
McDonnell,
sample.
mate’s urine
v.Wolff
times under all circumstances. To the
418 U.S.
94 S.Ct.
Wykoff Resig
discussed
*10
and
keep
record on the location
they
a written
process requirements
due
as
Wolff
where
samples
obviously
all
is
further exacerbated
of urine
at
transportation
times,
samples
deprived
opportunity
in inmate is
of
and while the
still
are.
DOC, it
sample.
should
possession of the
ascertain
handled
who
refrig
samples in locked
the urine
store
peti-
response Bourgeois’
The
State in
access. Fur
very
limited
erators
up to
it is
tion
contention that
raised the
thermore,
process re
the minimum due
“by
offered
prove,
inmate to
defined in
v. McDon
quirements
problem
himself,
there
some
by
that
[is]
re
nell, supra,
requires that
inmates
custody of
urine sam-
with the
chain
duplicate
the EMIT test
copy
ceive
The
ples given.” R. 23.
state outlined
laboratory
from
which con
results
fol-
“supposed” to
procedure
is
be
ducted such test.
lowed,
above
and then asserted that “[t]he
F.Supp. at 1514.5
Wykoff, 613
every
in
are followed
procedures
outlined
case____”
importance
critical
of a written chain
22. Such is insufficient.
The
If
is
custody should
obvious.
there
the minimum due
be
The state must meet
custody,
of the chain
in
process
Wolff,
no documentation
set out
418 U.S.
standard
hampered, if
severely
would
an inmate
be
and
L.Ed.2d
S.Ct.
obstructed,
presenting
in
completely
F.Supp.
in
upon Wykoff, 613
elaborated
charges by
to the
chal-
defense
process
minimum due
1504. The Wolff
Therefore,
lenging the test results.
when
prison
doc-
standard
officials
of the chain of
there is no documentation
custody
in
writing
ument
the chain of
ana-
custody to show that that which was
drug testing pur-
for
samples
taken
from
in-
lyzed by
laboratory
came
adequa-
poses.
magistrate’s finding of
The
question,
in
is no test from a
mate
drug
in
cy
testing procedure
in the State’s
standpoint.
legal
reversed,
is the
is
as also
instant case
point.
district
conclusion on that
court’s
court in
Higgs
As the federal district
Wilson,
(W.D.Ky.1985),
and the district courts
“Thus,
danger
of a
in-
noted:
‘clean’
issue,
in the chain of
reversed
receiving disciplinary action
mate
for
the district
and the cause is remanded to
increased,
‘dirty sample’
greatly
espe-
proceedings
by
for
further
cannot
cially since
inmates
call the
in
to be in order and
court are deemed
to testify,
lab technician
can-
opinion.
often
with this
conformance
not call other actors in the chain
cus-
added).
Higgs
tody."
231-32
McDEVITT,
concur.
JJ.
JOHNSON
seemingly
Such
was the situation Bour-
BAKES,
concurring in
Justice
Chief
hearing,
presence
geois’
where the
of one
part:
dissenting
part
witness,
May,
Officer
was denied because
majority
states that
the issue
require paying
his attendance would
over-
EMIT
problem
whether or not
unconfirmed
being
time. The
of the inmate
“some
provide
reliable to
hampered
presenting
his or her
defense
damages.
Judge Sofaer
to the
The final statement of
In addition
federal
Storms
Peranzo
cases,
was:
regard
discussed
to the
above
test,
yet
there is
recent
another
case from
that, regardless of the
This case illustrates
Southern District of New York which should
practical
jurisprudential justifications for
brought
to the attention of the Board of
largely
limiting
flood
meritless
the recent
attorney general.
opin-
and the
Corrections
petitions,
pro
courts
prisoner
se
the federal
jurist,
that case
authored
ion in
another
open
such as
must
to vindicate clаims
remain
Sofaer,
D.
United
the Honorable Abraham
brought
ac-
the Morrisons in this
the one
Judge.
brought
In a civil case
promise
process
States District
of due
is to
tion.
If the
real,
and his
based
the violation
an inmate
wife
the federal
must ensure
remain
courts
including
process rights,
permitted
will
of the inmate's
officials
not be
detention,
charges,
plaintiff-inmate
being placed
oppress
their wards with fraudulent
revenge
damages
compensatory
particularly
a form of
the sum
official
was awarded
$25,-
$50,000,
protected activities.
the inmate's wife was awarded
Lefevre,
compensatory damages,
plain-
and the two
Morrison v.
$5,000
(S.D.N.Y.1984).
punitive
together
were awarded
tiffs
*11
question
any
there is
evi-
upon
disciplinary
is whether
which a
action
evidence”
support
dence in the
that could
record
may
prison setting
in a
“is an
be based
by
discipli-
the conclusion reached
yet
which we need not
resolve” in
issue
board____
nary
609,
this case. Ante
I
(1966)
(“ ‘Preponderance
of
evidence’
as,
weighed
means such evidence
when
I,
regard
question
to Part
With
it,
opposed
with that
has more convinc-
EMIT test is
whether
ing force and from
it
results
provide
reliable to
“some evidence”
therein.”).
greater probability of truth lies
based,
which a
be
applicable legal
of review of a
standard
However,
prison disciplinary pro-
in a
prison disciplinary proceeding decision was
ceeding,
evidentiary
prison
burden on
rеcently expressed
most
the United
ordinary
officials is even less than in an
Superintendent,
Supreme
States
Court
proceeding.
Supreme
civil
The U.S.
Court
Hill, Mass. Corr. Institution v.
U.S.
Hill
only
held that
there need
be a
(1985),
445, 105 S.Ct.
process some evidence nary civil are satisfied if standard, essentially prison standard. supports the decision dis- not 51% higher standard than the “some ciplinary good board to revoke time It is a applicable dis- standard is met “there evidence” standard credits. This if However, ciplinary proceedings. this which the con- was some from Bourgeois’ posi- tribunal case evidence showed clusion the administrative deduced____” That Ascertaining EMIT test was accurate. be tive 95% could 95%, might proof, while not whether this standard is does standard satisfied prosecution entire sufficient a criminal require examination record, proof is on the state to where the burden independent assessment of witness, disputed “beyond fact a reason- weighing prove the credibility doubt,” Instead, adequate in a is more than the relevant able evidence.
623
Bourgeois’
open
post-hearing
such as
habeas cor-
the door to
rationaliza-
action
civil
action,
proof
the
where
burden of
pus
prisoner challenged
tions whenever a
the
proba-
the
more
him and
standard was
on
sufficienсy
the
evidence stated
not. The evidence of a
accu-
than
95%
ble
findings.
heavy
It
bur-
written
is not a
sufficient, particu-
test
of the EMIT
is
racy
place on our
den to
correctional officials
proceeding
larly
prison disciplinary
in a
discipli-
to
in
require
to
them state
their
where, according Hill,
to
only a “modicum
nary
decisions
evidence
which
or
is re-
evidence”
“some evidence”
they
do
relied.
it. So we.
support
disciplinary
action.
quired to
only
will look
to the written
We
find-
Thus,
agree
state-
I cannot
with the dictal
discipline
ings made at
time the
majority
is “consid-
ment of the
that there
was ordered to
there was
determine if
merit” in the
those
erable
conclusions of
support
some evidence to
the decision.
single
courts which have held that a
uncon-
42,
(emphasis
II (1964) (“The P.2d 695 authorities on the uniformly hold that the burden is majority’s disagree I further with the proceedings to corpus procedure petitioner for han- habeas holding that “the state’s Johnston, admissibility regarding of scientific evidence majority alleges supra, on 6. The U.S., trials, support argument Frye its 293 F. which the state relies to criminal set out decision, magistrate’s upholding (D.C.Cir.1923), “applicable favor of is not contrary to the "reached a decision that was prison disciplinary proceedings.” context of decision, i.e., support its case law used Johnston court also relied P.2d at 867. The Farrier, (8th Cir.1986) Sрence F.2d regarding mentioned on the statistics Peranzo (S.D. Coughlin, Peranzo accuracy test. In of the EMIT the favorable N.Y.1987)...." P.2d Ante 119 Idaho at fact, primari- specifically and the Johnston court Spence upheld at 480. Both Peranzo Hill, holding. support ly supra, its relied on "confir EMIT test when used with a use evidentiary "Applying ["some evidence”] However, matory the Johnston second test.” Hill, we conclude that a enunciated in standard rely primarily on court did not Peranzo urinalysis single, positive to an EMIT result single, positive EMIT test Spence to hold that marijuana clearly provides some fact, relied on these the court sufficient. added). P.2d at 868 use." 745 support standard conclusion that the cases to its detention.”). illegality appropriate dard if this were a would be establish erroneously switched the case in the state has the district criminal uphold should proof. burden of We proof beyond burden a reasonable doubt. 52(a); magistrate’s I.R.C.P. Bar However, decision. corpus this is decision a habeas ber, supra. in which the has the defendant burden proof by preponderance of the evidence. supra, majority Wolff, sup cites rule, Cootz, according to Hill and su- port of that the lack its claim of written pra, is that if is even a modicum of the state’s chain cus documentation on support evidence to plaintiff’s tody procedure violated the taken, discipli- the courts must affirm However, process rights. is not nary authority, finder of fact. which is the merely holding in Wolff. Wolff *14 Court, court, The district and now this has prison writing that officials state the apply evidentiary to test failed the correct upon they relied initiate evidence to standard If the correct disciplinary against action an inmate. of review. magistrate’s require applied, written standard were the de- does not documenta Wolff custody tion of the chain of of a urine easily cision would be affirmed. Accord- specimen. complied The officials ingly, the decision of the district court writing requirement with the in this be should reversed and the decision the Wolff report case. specifically The written states magistrate affirmed. hearing upon that officer relied the the Further, Wy EMIT test result. J., BOYLE, concurs. (D.C.Ind. Resig, koff 1985), majority heavily the on which relies BOYLE, Justice, dissenting. support to their conclusion that the state’s I respectfully majority dissent from the custody failure to document the chain of opinion join in the dissent of the Chief Bourgeois’ right violated constitutional observation, As the Justice. an initial ma- process, there was no written docu jority opinion me is troublesome to because to the chain of custody mentation as of a having it cites with “con- approval, and urine specimen, yet the court re did not merit,” siderable those cases which hold verse of that failure. Wykoff because single that a EMIT test is not “[pjlaintiff court first noted that has intro provide reliable to some evidence duced showing no evidence that someone based, disciplinary be had tampered sample.” with his urine necessary then concludes that it is not The court then at 1514. held that Although address or that issue. resolve handling plaintiff's “the sample opinion portion majority is clear- was adequate, and that the ly obviously dicta and leave it will the imposed upon plaintiff sanctions should not resulting impression along with confu- — here.” 613 disturbed condemning sion—that is this Court the suggest steps While the court went on to use of a EMIT test when that issue that could be taken to document a chain resolved, my not concern in actually was steps custody, required these were this case is even more basic and fundamen- the case because was demonstrated that tal. custody adequate. the chain of was many by majori- In of the cases cited the case, magistrate
In this
also found
ty,
appellate
holdings that
courts’
proper
custody
that a
chain of
fol-
was
unreliable,
single EMIT test was
were
alleged
lowed because
neither
presented
to the
based on
evidence
trial
proved any
custody
nor
chain of
problem.
us
presently
court.
In the case
before
decision, however,
put
district court’s
magistrate
findings
its
and con-
court made
Department
burden
of Correc-
considering
clusions after
tions to show that the test was accurate
presented. The evidence before
beyond
proper
doubt and that the
chain
followed,
magistrate
custody
and that
established
was
ninety-five percent
EMIT test is
accurate.
process.
were
errors in the
stan-
no
That
(1985);
Hosp.,
“mo
Idaho
tablished *15 handling sample the urine
dures involved
been followed.
had
judge
Johnson,
P.2d
ner v.
107 Idaho
CORPORATION,
PIPER ACCEPTANCE
Gotzinger,
v.
(1985);
Idaho
Glenn
Counterclaimant-Respondent,
(1984);
Jensen v. West
109,
will Minidoka Memorial MacNeil v.
ous.