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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,


RICHARD BRANDON,                        )
                              )    Supreme Court No. S-10056
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-99-12584 CI
STATE OF ALASKA,                        )
             Appellee.                  )    [No. 5711 - July 18,

          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

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.


          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.


     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


          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.


          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
               (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


          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
          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
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
          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
          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

     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

     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

     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

     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