You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Brandon v. State, Dept. of Corrections (7/18/2003) sp-5711
Brandon v. State, Dept. of Corrections (7/18/2003) sp-5711
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD BRANDON, )
) Supreme Court No. S-10056
Appellant, )
) Superior Court No.
v. ) 3AN-99-12584 CI
)
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) O P I N I O N
)
Appellee. ) [No. 5711 - July 18,
2003]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Donald D. Hopwood, Judge.
Appearances: Richard Brandon, pro se,
Palmer. Timothy W. Terrell, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Richard Brandon alleges that the Department of
Corrections violated his federal and Alaska constitutional rights
to an impartial factfinder and to due process generally by
allowing a single hearing officer to decide his disciplinary
hearing in violation of the version of the Alaska Administrative
Code that was in effect at the time. He also requests that we
hold that this error is a violation of the Cleary v. Smith final
settlement agreement. We find no constitutional violation, and
because any violation of the Cleary agreement was harmless error,
we decline to reach the Cleary issue.
II. FACTS AND PROCEEDINGS
A. Facts
On October 22, 1999 Richard Brandon, an inmate at the
Spring Creek Correctional Center in Seward, was searched and
found to have tobacco in his pocket. Because smoking tobacco is
forbidden in state correctional facilities,1 Brandon was charged
with a violation of 22 Alaska Administrative Code (AAC)
05.400(c)(7) (Supp. 2003),2 which is a high-moderate infraction
on the states scale of minor, low-moderate, high-moderate, and
major infractions.3 A disciplinary hearing was conducted by a
single hearing officer on November 8, 1999. Brandon called no
witnesses and conceded his possession of the tobacco, but pled
not guilty and argued only that he should have been charged with
a lesser infraction. He was found guilty and sentenced to
fifteen days of punitive segregation, which was suspended for 180
days.
The rules regarding the composition of disciplinary
hearing bodies in Alaska correctional institutions have a
somewhat complicated history. Beginning in 1977 all but minor
infractions were heard by three-member panels pursuant to 22 AAC
05.450(a); a single hearing officer was used only to adjudicate
minor infractions.4 Section VII.C of the Final Settlement
Agreement (FSA) of Cleary v. Smith,5 a 1990 class action
settlement governing numerous aspects of prison conditions in
Alaska, refers repeatedly to these two possible types of board
composition but does not specify when a three-member panel is
required. The final Order of the Cleary FSA also states that
[i]f any provisions herein are in conflict with existing
provisions of Title 22 of the Alaska Administrative Code . . .
the terms of this Order shall supercede the conflicting
provisions. In February 1997, apparently believing that the
Cleary FSA absolved it of its duties to follow the AAC, the
Department of Corrections (DOC) altered its internal Policy and
Procedure manual and began using three-member panels to
adjudicate only major infractions, and in 1999 amended 22 AAC
05.450(a) to reflect this change.6 Even though the DOC had
already been using this system for some time, it circulated a
notice to inmates of the amendment to 22 AAC 05.450(a) and
informed them that the changes would take effect on November 13,
1999. As noted above, a single hearing officer presided over
Brandons hearing on November 8, 1999, five days before the
regulatory change took effect.
B. Proceedings
Brandon appealed the guilty finding to the Spring Creek
superintendent on the sole ground that his hearing had been
conducted by a single hearing officer instead of the three-member
committee required by the version of 22 AAC 05.450(a) in force at
the time of his infraction and hearing. The superintendent
denied this request on the grounds that the Cleary FSA clearly
permits the use of [either] a disciplinary committee or hearing
officer for disciplinary hearings, that the final Order of the
FSA supercedes Title 22 of the AAC, that Brandons constitutional
ability to defend himself had not been adversely affected, and
that any error was harmless under 22 AAC 05.610.7 Brandon
appealed to the Director of the Division of Institutions, who
agreed with the superintendent and noted that the regulations
have now been changed to bring them into compliance with Cleary.
Brandon appealed to the superior court.8 Superior
Court Judge Donald D. Hopwood denied the appeal but found that
the DOCs alteration of the disciplinary tribunal structure could
have been found by the Cleary court to reflect a misunderstanding
of the Cleary FSA. Brandon appeals the constitutionality of the
single hearing officer procedure and asks this court to rule that
22 AAC 05.450(a) was altered in violation of the Cleary FSA.
III. STANDARD OF REVIEW
Judicial review of prisoner disciplinary decisions is
governed by AS 33.30.295, which provides in relevant part:
(a) A prisoner may obtain judicial review by
the superior court of a final disciplinary
decision by the department only if the
prisoner alleges specific facts establishing
a violation of the prisoners fundamental
constitutional rights that prejudiced the
prisoners right to a fair adjudication. . . .
(b) A disciplinary decision may not be
reversed
(1) unless the court finds that the
prisoners fundamental constitutional rights
were violated in the course of the
disciplinary process, and that the violation
prejudiced the prisoners right to a fair
adjudication; [or]
(2) because the department failed to
follow hearing requirements set out in state
statutes and regulations, unless the prisoner
was prejudiced by the denial of a right
guaranteed by the Alaska Constitution or
United States Constitution . . . .
We have previously held that we have jurisdiction to
review DOC administrative decisions which implicate an inmates
procedural due process rights.9 Whether an inmate has received
procedural due process is an issue of constitutional law that we
review de novo.10 The scope and effect of the Cleary final
settlement agreement are contract issues that we review de novo.11
IV. DISCUSSION
Brandon argues that he was denied due process under
both the federal and state constitutions because a single hearing
officer cannot be guaranteed to be an impartial adjudicator and
because the DOC failed to follow its own regulations in force at
the time of his hearing. He also argues that the 1999 amendment
of 22 AAC 05.250(a) occurred in violation of the Cleary final
settlement agreement IX.B.4.b.
A. Brandons Constitutional Rights Were Not Violated in the
Disciplinary Hearing.
Brandon argues that his disciplinary proceeding
violated his right to due process of law under the U.S. and
Alaska Constitutions, both of which prohibit the state from
depriving citizens of life, liberty, or property, without due
process of law.12 In this case, the deprivation of liberty that
the state imposed was a suspended sentence of fifteen days of
punitive segregation.
The extent of the due process guarantees of the federal
and state constitutions have been interpreted differently by the
United States Supreme Court and this court. As early as Baker v.
City of Fairbanks,13 we noted that
[w]hile we must enforce the minimum
constitutional standards imposed upon us by
the United States Supreme Courts
interpretation of the Fourteenth Amendment,
we are free, and we are under a duty, to
develop additional constitutional rights and
privileges under our Alaska Constitution if
we find such fundamental rights and
privileges to be within the intention and
spirit of our local constitutional language
and to be necessary for the kind of civilized
life and ordered liberty which is at the core
of our constitutional heritage.[14]
A comparison of the relevant holdings of this court and the
United States Supreme Court in the area of prison disciplinary
proceedings shows that we have interpreted the due process
guarantee under the Alaska Constitution more broadly than the
United States Supreme Court has interpreted the identical
provision of the United States Constitution.
In McGinnis v. Stevens,15 we held that under the Alaska
Constitution punitive segregation of a prison inmate following a
major disciplinary infraction is a deprivation of liberty
sufficient to trigger the right to due process.16 In that case we
set out the parameters of state constitutional due process rights
to be afforded to prisoners in disciplinary proceedings: Subject
to certain limitations, inmates accused of major disciplinary
infractions are entitled to a disciplinary hearing marked by the
right to call witnesses and produce documentary evidence, the
right to confront and cross-examine witnesses, the right to
counsel if the disciplinary hearing may be followed by a felony
prosecution, the right to have the hearing recorded, a
substantially more probable than . . . innocence standard for
adjudicating guilt, and a fair and impartial hearing which may be
conducted by employees of the prison system.17
The United States Supreme Court later reached a
different and much narrower conclusion in Sandin v. Conner.18
There, the Court found that because punitive segregation is
almost indistinguishable from administrative segregation and
protective custody, it did not present the type of atypical,
significant deprivation in which a State might conceivably create
a liberty interest and therefore did not implicate any particular
federal due process rights.19 Accordingly, if we conclude on the
basis of the Alaska Constitution that Brandons constitutional
claims have no merit, we need not reach the issue whether DOCs
actions implicate due process considerations under the U.S.
Constitution.20 We turn then first to a consideration of Brandons
state constitutional claims.
1. The DOCs use of a single hearing officer did not violate the
guarantee of a fair and impartial tribunal under the Alaska
Constitution.
1. In McGinnis v. Stevens we held that Alaska constitutional
due process requires the use of an impartial tribunal in prison
disciplinary proceedings regarding major infractions.21
Specifically, we found that a three-member hearing body composed
of prison officials, or prison officials and inmates, could
constitute a neutral and detached tribunal which is capable of
following fair procedures and rendering fair decisions.22 We
required a factual showing of a pattern of bias in order to
overcome this presumption of impartiality.23 We also noted that
[s]ubstantial institutional interests other
than criminality are involved in disciplinary
hearings insofar as the disciplinary
committee is required by the Divisions
regulations to maintain proper control,
conserve human values and the individuals
dignity, as well as to promote desirable
changes in attitude and behaviour on part of
the offender. Insofar as knowledge of the
conditions of the prison environment is
important to an understanding of the
significance of events which occur therein,
prison officials and offenders theoretically
comprise an ideal disciplinary hearing
committee.[24]
We did not, however, specifically address the significance of
multiple hearing officers per se, and we did not address what
process is due in proceedings involving less than major
infractions.
Brandon admits that the Alaska Constitution does not
explicitly guarantee multiple hearing officers. He argues
instead that the use of a single hearing officer cannot guarantee
as much impartiality as a three-person board because any improper
biases in a single officer cannot be outvoted, and because
multiple officers might deliberate more carefully. While he
states that [t]he circumstances here present inherent and obvious
substantive prejudice, he does not in fact allege that the
hearing officer in his particular case was not a neutral and
detached tribunal which [was] capable of following fair
procedures and rendering fair decisions.25 Nor does he allege
that there was a pattern of biased disciplinary tribunals
operating in the facility where he was housed.26
Because single hearing officers are not in Alaska case
law presumed to be biased in prison disciplinary proceedings,27
and because Brandon offers no specific allegations of bias or
explanation of why a high-moderate infraction requires
adjudication by a committee instead of a single hearing officer,
we hold that Brandon has not shown a violation of his Alaska
constitutional right to an impartial factfinder as is required
for a reversal under AS 33.30.295.
2. The DOCs failure to follow 22 AAC 05.450(a) did not violate
the guarantee of due process under the Alaska Constitution.
1. The version of 22 AAC 05.450(a) in force at the time of
Brandons infraction and hearing provided that a three-member
disciplinary committee should hear the case because it was
classified as a high-moderate infraction.28 Instead, his case was
heard by only a single hearing officer, which comported with an
amended version of 22 AAC 05.450(a) that took effect a few days
after the hearing.29 Brandon argues that DOCs failure to follow
its regulation also amounts to an Alaska due process violation.
While it is an established proposition that an administrative
agency must follow its own regulations,30 this is a proposition of
administrative law, not constitutional law.31 Moreover, McGinnis
carefully lists those due process protections that are required
by the Alaska Constitution in a DOC disciplinary hearing, and
neither multiple hearing officers nor the precise execution of
every applicable section of the AAC are listed.32 Therefore,
without more, Brandons allegations do not entitle him to relief,
since AS 33.30.295(b)(2) specifically distinguishes between
failures to follow regulations in DOC disciplinary hearings that
result in state constitutional violations and those that do not.
We conclude that Brandon has not demonstrated that his
constitutional rights were violated. Under these circumstances,
AS 33.30.295 does not permit reversal.
B. Any Violation of the Cleary FSA Was Harmless Error.
A. Brandon contends that the application of the amended 22 AAC
05.450(a) to his disciplinary hearing violated the Cleary FSA.
However, at his disciplinary hearing Brandon presented no
witnesses in his own behalf and admitted to his possession of the
tobacco. At the time of the hearing, Brandons sole argument was
that he should have been charged with a different, lesser
infraction, but Brandon does not raise this issue on appeal.
Given the overwhelming and uncontroverted evidence at Brandons
hearing, and the fact that he alleges no actual bias on the part
of the hearing officer in his case, we can see no reason why any
violation of the Cleary FSA prejudiced his hearing. Although we
are generally reluctant to find harmless error in agency
proceedings,33 we conclude that any violation of the Cleary FSA
did not affect Brandons substantive rights.34
V. CONCLUSION
Because Brandon has not shown any violation of his
constitutional rights or any substantive prejudice arising from
the DOCs alleged failure to adhere to the Cleary FSA, we AFFIRM
the decisions of the DOC.
_______________________________
1 AS 33.30.015 reads in relevant part: (a) On and after
August 27, 1999, the commissioner [of Corrections] may not . . .
(3) allow a prisoner held in a state correctional facility
operated by the state to . . . (J) smoke or use tobacco products
of any kind.
2 This regulation provides in relevant part that [h]igh-
moderate infractions include the following: . . . (7) possession,
use, or introduction of contraband . . . which directly threatens
the security of the facility, such as excess money or
unauthorized drugs. The state claims that tobacco is such
contraband by virtue of its disruptive barter value in the no-
smoking environment created by AS 33.30.015(a)(3)(J).
3 22 AAC 05.400(a) provides that [p]rohibited conduct for
prisoners in state facilities is governed by (b)-(e) of this
section. A violation must be punished as either a major, high-
or low-moderate, or minor infraction.
4 See former 22 AAC 05.450(a) (1991) (effective Sept. 10,
1977) (providing that [t]he disciplinary committee must be
composed of three members appointed by the superintendent, unless
the infraction charged is a minor infraction. In the case of a
minor infraction, the superintendent may appoint a single member
to hear the matter); compare McGinnis v. Stevens, 543 P.2d 1221,
1228 (Alaska 1975) (holding that a three-member panel consisting
of prison officials and, potentially, inmates is sufficiently
impartial to adjudicate major infractions: Insofar as knowledge
of the conditions of the prison environment is important to an
understanding of the significance of events which occur therein,
prison officials and offenders theoretically comprise an ideal
disciplinary hearing committee.).
5 3AN-81-5274 Ci. (Alaska Super., September 21, 1990).
6 In Register 152, effective November 13, 1999, 22 AAC
05.450(a) (Supp. 2003) was altered to provide in relevant part
that [t]he superintendent shall appoint a single hearing officer
as the disciplinary tribunal to hear a disciplinary action unless
the superintendent determines appointment of a three-person
disciplinary committee is necessary because the disciplinary
report concerns an alleged major infraction under 22 AAC
05.400(b).
7 22 AAC 05.610 (1991) provides: 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.
8 AS 33.30.295(a) (providing limited circumstances in
which superior court may review final decision in prison
disciplinary cases).
9 Abruska v. Dept of Corrs., State, 902 P.2d 319, 321
(Alaska 1995).
10 Id.
11 Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).
12 U.S. Const. amend. XIV, 1; Alaska Const. art. I, 7.
13 471 P.2d 386 (Alaska 1970).
14 Id. at 401-02.
15 543 P.2d 1221 (Alaska 1975).
16 Id. at 1236-37. The plaintiffs in McGinnis v. Stevens
demanded improvements in prison disciplinary procedures that
resulted in removal of statutory good time toward release and in
particular punitive segregation procedures. Id. at 1224.
17 Id. at 1229, 1236-37 (quoting internal DOC regulation).
In that case we also held that there is no automatic right to
appeal in such proceedings. Id. at 1236.
18 515 U.S. 472 (1995).
19 Id. at 486.
20 Baker v. City of Fairbanks, 471 P.2d 386, 401-02
(Alaska 1990).
21 McGinnis, 543 P.2d at 1228 (construing Wolff v.
McDonnell, 418 U.S. 539, 571 (1974) (finding similar hearing
board sufficiently impartial)).
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id. (construing Wolff v. McDonnell, 418 U.S. 539, 571
(1974)).
28 Brandon was notified that he was charged with violation
of 22 AAC 05.400(c)(7). 22 AAC 05.400(c) lists high-moderate
infractions.
29 Compare former 22 AAC 04.450 (1991) with current 22 AAC
04.450 (Supp. 2003) (effective Nov. 13, 1999).
30 Stoshs I/M v. Fairbanks N. Star Borough, 12 P.3d 1180,
1185 (Alaska 2000).
31 Bd. of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78,
92 n.8 (1978).
32 McGinnis, 543 P.2d at 1236-37.
33 In Kalmakoff v. State, Commercial Fisheries Entry
Commn, 693 P.2d 844, 849-50 (Alaska 1985), we explained:
We have employed a harmless error standard in
reviewing administrative determinations. See
North State Telephone Co. v. Alaska Public
Utility Commission, 522 P.2d 711, 715 (Alaska
1974). The relevant federal cases suggest
that a court reviewing an agency decision
should be much more reluctant to find
harmless error than it would be if reviewing
a lower court decision.
34 See 22 AAC 05.610, which provides: 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.
