Richard BRANDON, Appellant, v. DEPARTMENT OF CORRECTIONS, State of Alaska, Appellee.
No. S-5140.
Supreme Court of Alaska.
Dec. 17, 1993.
865 P.2d 87
John K. Bodick, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
Richard Brandon was found guilty of violating prison regulations at a Cook Inlet Pretrial Facility (CIPT) disciplinary hearing. Brandon claims his right to due process of law was violated in the disciplinary hearing process. The superior court “denied” Brandon‘s appeal. This appeal followed. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 1990, Correctional Officers Smith and Adler were directed by their supervisor, Sergeant Rodgers, to search Richard Brandon‘s room. The room was a double occupancy room at CIPT shared by Brandon and Jomar Bungay. As a result of the room search a number of items were seized. Included in the items seized were two bottles of what appeared to be “pruno”1 and a stolen radio. Brandon was charged with violations of institutional rules
The disciplinary hearing was held on January 9, 1991. Brandon was found guilty of adulteration of food or drink and possession of contraband. Brandon was found not guilty of threatening damage to or theft of another‘s property. Brandon was “assessed” fifteen days punitive segregation and forfeited forty-five days of statutory good time for the (c)(9) charge and five days of punitive segregation for the (d)(7) charge, which were to run concurrently.
Brandon‘s appeal to Superintendent Briggs was denied on January 28, 1991. Brandon‘s appeal to the regional director was denied on February 26, 1991. Brandon then filed an appeal to the superior court.
II. STANDARD OF REVIEW
The question of whether Brandon received due process of law in the disciplinary hearing is a question of law which this court reviews de novo. See McGinnis v. Stevens, 543 P.2d 1221, 1236 (Alaska 1975); see also Department of Corrections v. Kraus, 759 P.2d 539, 540-41 (Alaska 1988). Ordinarily, the grant or denial of a preliminary injunction is a matter within the discretion of the
III. DISCUSSION
A. BRANDON‘S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED IN THE DISCIPLINARY HEARING
In McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), we examined the manner in which the United States Supreme Court applied the due process clause of the Fourteenth Amendment to prisoner disciplinary hearings in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We accepted the analysis in Wolff and found that the due process provisions of the Alaska Constitution apply to prisoners. McGinnis, 543 P.2d at 1236. Like their federal counterparts, state constitutional rights do not entitle prisoners to the full panoply of rights accorded in criminal proceedings. Id. Nonetheless the rights are substantial.
Short of the full panoply of rights accorded an accused in criminal proceedings, the Supreme Court in Wolff held that when major prison disciplinary proceedings are instituted against a state inmate, the following procedural safeguards are mandated by the Due Process Clause: at least twenty-four hours advance written notice of the alleged violation; a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action; permitting the inmate facing disciplinary action to call witnesses and to present documentary evidence in his defense when to do so will not be unduly hazardous to institutional safety or correctional goals;
Id. at 1225 (footnotes omitted).
Brandon raises several claims that his right to due process of law was violated in the disciplinary hearing process. The State argues that each of Brandon‘s claims were, at most, technical mistakes and not violations of Brandon‘s right to due process.
1. Chain of Custody.
Brandon‘s first claim is that his right to due process was violated because there was not an adequate chain of custody document to authenticate the pruno. Brandon claims that the chain of custody documentation was deficient because Officer Adler wrote the disciplinary report, while the Property Seizure Report indicates that the pruno was found by Officer Smith. Brandon asserts that the pruno should have been excluded from evidence because its authenticity could not be adequately established. The State argues in response that both officers were in the room together and it makes no difference which one actually wrote the report.
Brandon does not indicate how the question of who wrote the report was in any way prejudicial to him or violated due process.
Harmless error. Failure of a staff member to follow the regulations set out in this chapter does not invalidate a decision absent a showing of prejudice by the prisoner.
Technically, the officer who finds the alleged contraband is required to write the disciplinary report. Department of Corrections Policy and Procedures # 809.03. However, there is no suggestion that the alleged deficiency in the report in any way prejudiced Brandon. Therefore, since no prejudice to Brandon has been shown, we do not find a due process violation.
2. Right to call Defense Witnesses.
Brandon claims that his right to due process was violated because he was denied the right to call Sergeant Rodgers as a witness. Sergeant Rodgers was absent from the facility on the day of the hearing. Brandon had requested that Rodgers testify at the hearing, in accordance with
The State argues that Rodgers was not in the room and the best evidence of the search was provided by the officers who conducted the search, Alder and Smith. The State asserts that Brandon is arguing another procedural technicality which does not call into question the merits of the hearing. We disagree.
The right to call witnesses and present evidence is fundamental to a fair hearing and due process. In McGinnis, we rejected the Supreme Court‘s balancing of the needs of the prison with the right to call witnesses adopted in Wolff. We reaffirmed the right to call defense witnesses as fundamental to due process under the Alaska Constitution.
We fail to see how the right to call witnesses and present documentary evidence will create discipline problems which outweigh the fundamental value these rights provide as vehicles for ascertaining the truth. Absent a right to establish the most basic elements of a defense through presentation of evidence, a disciplinary hearing cannot be characterized as fair in the due process sense.
The burden is on the hearing officer to state reasons why the accused is not permitted to call the witness.
The chairperson of the disciplinary committee may decline, for compelling reasons, to call a witness.... The chairperson‘s reason for declining to call a witness or admitting evidence must be noted orally for the record.... This report must contain a brief statement of the reasons why the persons were not called, or the evidence was not admitted.
3. Chemical testing of the Pruno.
Prior to the hearing, Brandon requested that the alleged “pruno” be chemically tested. Brandon‘s request was denied. Brandon asserts that he cannot be found guilty of alteration of food or drink when there is no evidence that the liquid contained any alcohol. However, Brandon offered no evidence or testimony which called into doubt that the liquid found had been altered in an attempt to make pruno.
The State argues that no chemical test is required when it is “readily apparent that the foodstuffs found had been adulterated in an attempt to make pruno.” The State contends that the testimony of the officers established by a preponderance of the evidence that the drink was altered in an attempt to make pruno. Because nothing presented called into question the observations of the officers, we agree.
4. Findings of Fact.
Brandon claims that the hearing committee report is inadequate because there are no findings of fact by the disciplinary committee. The committee simply stated that Brandon was found guilty. Brandon argues that without any findings of fact he cannot know whose testimony was believed and what evidence was relied on.
The State argues that the purpose of the findings is to provide Brandon with enough information to advise him of the reason for his guilt and allow Brandon to file a meaning
Department of Corrections regulation
(a) If a prisoner is found guilty of an infraction, the disciplinary committee shall issue a written decision. The decision must include the following:
(1) a summary of the statement of the accused prisoner;
(2) a summary of the testimony of witnesses;
(3) a statement of the committee‘s adjudicative and dispositive decisions and the reasons for those decisions, including a statement of the evidence relied upon and the specific facts found to support the committee‘s decision;
(Emphasis added).
Without findings of fact it is difficult for an inmate to know exactly what formed the basis for the conviction, and to obtain meaningful review. In this case it is clear that not everything in the reports was true, otherwise Brandon would have been found guilty of the stolen radio charge. Furthermore the reports list “contraband” seized from Brandon including two large paper bags of candy, two ballpoint pens, one roll of tape, twelve AA batteries and three AAA Batteries. There are no findings that these items in fact are all “contraband.” While the disciplinary committee may rely on the reports, it is still the task of the committee to be the finder of fact and determine which facts found in the reports support violations of regulations. Because we find Brandon‘s right to due process was violated by the failure to allow his defense witness, we need not decide if the lack of findings of fact prejudiced Brandon so as to violate his rights. We do note the failure of the disciplinary committee to follow the express requirements of the regulations.
5. Deviation from Hearing Agenda.
Brandon argues that the hearing agenda requires that witnesses be called and that he have a chance to confront them after he pleads not guilty.3 In this case, after Brandon‘s plea of not guilty the committee chairman asked Brandon to present his version of events. Brandon argues that this made him go first and allowed the correctional officers the opportunity to respond to Brandon‘s account.
The State argues that the variation in the hearing agenda did not shift the burden of proof and did not violate Brandon‘s right to
B. THE INCIDENT REPORT CONCERNING THE RADIO DOES NOT VIOLATE BRANDON‘S RIGHT TO DUE PROCESS OF LAW
Brandon argues that because one incident report accuses him of three violations, the portion of the report which accuses him of stealing a radio will remain in his institutional file even though he was found not guilty. Brandon argues that this violates due process as well as
Brandon has a right to have the information removed from his file pursuant to
C. THE SUPERIOR COURT‘S DENIAL OF STAY WAS IMPROPER
Brandon argues that his punishment should have been stayed pending his appeal pursuant to
The State argues that the automatic stay pending appeal applies to administrative appeals only. Once Brandon appealed to the superior court, the court was entitled to determine that there was little likelihood of success and deny the stay. The State argues that this court should review the denial of the stay for an abuse of discretion and affirm the superior court.
The State is correct that
not granted. The State‘s contention that Brandon was not entitled to a stay because of little likelihood of success applies the wrong standard to the grant or denial of this stay.
While the rule requiring a clear showing of probable success applies in situations where the party asking for relief does not stand to suffer irreparable harm, or where the party against whom the injunction is sought will suffer injury if the injunction is issued, a different rule applies where the party seeking the injunction stands to suffer irreparable harm and where, at the same time, the opposing party can be protected from injury.
A.J. Industries, Inc. v. Alaska Pub. Serv. Comm‘n, 470 P.2d 537, 540 (Alaska 1970) (footnotes omitted). The superior court should have applied the “balance of hardships” approach as described in A.J. Industries. “The balance of hardships is determined by weighing the harm that will be suffered by the plaintiff if an injunction is not granted, against the harm that will be imposed upon the defendant by the granting of an injunction.” Id. The denial of the stay was improper because the superior court failed to apply the proper test.8
IV. CONCLUSION
The failure of the disciplinary committee to allow Brandon to call Sergeant Rodgers as a witness denied Brandon his right to due process of law. Neither the fact that the wrong officer signed the disciplinary report nor the failure to test the pruno were errors. Although the failure of the disciplinary committee to make findings of fact, and its deviation from the hearing agenda violated Department of Corrections regulations, we decline to address whether either failure denied Brandon due process of law. The failure to remove reference to the radio in the incident report did not violate Brandon‘s right to due process of law. The denial of the stay, without balancing the harm to Brandon, was improper. Because we partially reverse the superior court, the award of attorney‘s fees is VACATED.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.
RABINOWITZ, Justice, with whom MATTHEWS, Justice, joins, dissenting in part.
I dissent from the court‘s holding that the superior court erred in denying Brandon‘s
Since our decision in A.J. Industries we have expressed the balance of hardships approach as follows:
That standard [that the movant must show only that there are serious and substantial questions going to the merits of the case, and that the movant need not show probable success on the merits] applies only where the injury which will result from the temporary restraining order or the preliminary injunction can be indemnified by a bond or where it is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted. Where the injury which will result from the temporary restraining order or the preliminary injunction is not inconsiderable and may not be adequately indemnified by a bond, a showing of probable success on the merits is required before a temporary restraining order or a preliminary injunction can be issued.
State v. United Cook Inlet Drift Ass‘n, 815 P.2d 378, 379 (Alaska 1991) (citations omitted); see also Olsen Logging Co. v. Lawson, 832 P.2d 174, 176 (Alaska 1992); Messerli v. State, Dep‘t of Natural Resources, 768 P.2d 1112, 1122 (Alaska 1989), overruled on other grounds by Olson v. State, Dep‘t of Natural Resources, 799 P.2d 289, 292-93 (Alaska 1990).
The state and the public have important interests in effective prison discipline and effective management of correctional facilities. It is apparent that delayed imposition of prison discipline is generally not as effective a deterrent as reasonably immediate discipline. These considerations lead me to the conclusion that a showing of probable success on the merits should be required for court issued stays in matters of prison discipline.2
COMPTON
JUSTICE