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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. James v. State, Dept. of Corrections (9/2/2011) sp-6598

James v. State, Dept. of Corrections (9/2/2011) sp-6598, 260 P3d 1046

        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, email 


JOSEPH JAMES,                                   ) 
                                                )       Supreme Court No. S-13916 
                        Appellant,              ) 
                                                )       Superior Court No. 3AN-07-11815 CI 
        v.                                      ) 
                                                )       O P I N I O N 
STATE OF ALASKA,                                ) 
DEPARTMENT OF CORRECTIONS, )                            No. 6598 - September 2, 2011 
                        Appellee.               )

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Frank A. Pfiffner, Judge. 

                Appearances:       Joseph    James,    pro  se,  Hudson,     Colorado, 
                Appellant.     Marilyn J. Kamm, Assistant Attorney General, 
                and John J. Burns, Attorney General, Juneau, for Appellee. 

                Before:   Fabe,   Winfree,   and   Christen,   Justices.   [Carpeneti, 
                Chief Justice, and Stowers, Justice, not participating.] 

                FABE, Justice. 


                After a disciplinary hearing, a hearing officer found Alaska prison inmate 

Joseph James guilty of the "low-moderate" infraction of               "threatening another person 

with    future   bodily   harm"     at  Red   Rocks    Correctional     Center    in  Arizona.      The 

determination was based entirely on an incident report written by a prison staff member 

----------------------- Page 2-----------------------

who had not witnessed the incident.          Instead, the report's author, G. Mathey, provided 

a hearsay account of a conversation between James and another staff member, Carl 

Richey.    After   exhausting   his   administrative   remedies,   James   filed   an   appeal   to   the 

superior   court.   James   argued   that   basing   the   finding   of   guilt   solely   on   the   hearsay 

written account constituted a violation of his due process rights.   James also maintained 

that the failure to audio-record the disciplinary hearing violated due process. 

                The superior court affirmed the disciplinary determination.              Because we 

conclude that James's due process right to confront and cross-examine adverse witnesses 

was   violated   during   the   disciplinary   proceedings   and   that   he   was   prejudiced   by   the 

failure to audio-record the disciplinary hearing, we vacate the disciplinary determination 

and remand for a new hearing. 


        A.      Facts 
                Joseph James is an Alaska prisoner1 who was incarcerated by the State of 

Alaska, Department of Corrections (DOC) at Red Rocks Correctional Center in Arizona 

until late 2009.    In an incident report dated July 18, 2007, James was written up for 

"[t]hreatening another person with future bodily harm."  The incident report, written by 

a prison staff member, G. Mathey, related a conversation between James and another 

staff member, grievance coordinator Carl Richey: 

                On July 17, 2007 at approximately 1400 hrs, Alaskan inmate 
                [James] went to   Mr. Richey's office to discuss complaints 
                about   Case   Manager   []   and   Unit   Manager   [].  During   the 
                conversation James stated that some guys wanted to put a hit 

        1       James was convicted of attempted sexual assault in the second degree and 

three counts of sexual abuse of a minor in 1984.             James v. State, 244 P.3d 543, 544 
(Alaska App. 2011).       James was released on mandatory parole in 2005, but his parole 
was revoked later that year and he began serving additional time.              See id. at 544-45. 

                                                  -2-                                              6598 

----------------------- Page 3-----------------------

                out on her and have her knee caps broken, but he stopped 
                that.  James also stated that he was going to put $20,000.00 
                on a reward for [a former state legislator] in Alaska because 
                of the No Frills Bill.     End of Statement. 

                Mathey,   the   author   of   the   report,   was   not   present   during   the   alleged 

conversation between James and Richey.   On July 23, 2007, James was given notice of 

a disciplinary hearing scheduled for July 30.  The notice advised:                "[Y]ou must inform 

the   Disciplinary   Committee/Hearing   Officer   in   writing,   at   least   24-hours   before   the 

hearing,   of   witnesses   you   wish   to   call   or   evidence   you   intend   to   introduce   at   the 


                A   disciplinary   hearing   was   conducted   on   July   30   by   a   single   hearing 

officer, Irene Flores.   The disciplinary hearing was not recorded.   According to James's 

account of the hearing, he denied that he was guilty of the charged infraction and "asked 

how come the writer of the report, and my witness, Mr. Rich[ey], are not here[.]"  James 

alleges that he was told by Flores that "[t]hey are not necessary.  They don't have to be 
here if they don't want to be."2      James also claims that he asked why the hearing was not 

being recorded, and Flores told him that a recording was not required.                    Flores found 

James guilty of the charged infraction and imposed discipline of 20 days of punitive 


        B.      Proceedings 

                1.       The administrative proceedings 

                James      appealed     the   disciplinary     determination      to  the   Red    Rocks 

Correctional Center Superintendent.            James argued that "punitive actions based upon 

        2       DOC disputes James's version of these events, asserting that "Flores did 

not tell James that it was not necessary to have the writer of the report present at the 
hearing, nor did she tell him that the writer of the report does not have to appear at the 
hearing if he does not want to appear." 

                                                   -3-                                                6598 

----------------------- Page 4-----------------------

hearsay evidence alone [are] a violation of due process."             His appeal was denied by the 

Superintendent.        James     then   appealed    to  the  Alaska    Director    of  the  Division    of 

Institutions, asserting that "[t]here was no evidence presented that said that [James] had 

physically threatened anyone" and that the actual conversation James had with Richey 

was "a lot different than the hearsay report of [Mathey]."  The appeal to the Director was 

also denied. 

                2.       The appeal to the superior court 

                On October 22, 2007, James filed a notice of appeal in the superior court. 

He alleged that his due process rights had been violated because no "direct evidence" of 

a rule violation was presented at the disciplinary hearing, only "hearsay" and an "ex 

parte   communication."        In   his   brief   filed   April   6,   2009,   James   contended   that   the 

disciplinary hearing officer's reliance on the hearsay evidence in the incident report, 

along with Richey's and Mathey's absence from the disciplinary hearing after he had 
requested their presence, violated his due process rights.3          James made several additional 

claims,   including   that   Alaska   policies   and   procedures   required   audio-recording   his 

disciplinary proceeding. 

                DOC informed Superior Court Judge Craig Stowers that the recording of 

James's disciplinary hearing was "no longer available."                 The superior court ordered 

James to prepare a statement of the evidence and testimony at the disciplinary hearing 

"from the best available means, including his recollection."               James initially objected to 

preparing this statement, explaining that one of his claims was that the failure to record 

the   hearing   was   itself   a   due   process   violation   and   that   the   superior   court's   order   to 

replicate the record "incorporate[d] the assumption that an audio record had been made." 

        3       James   also   maintained   that   Richey   later   refuted   that   James   threatened 

physical harm to anyone. 

                                                   -4-                                                6598 

----------------------- Page 5-----------------------

The   superior   court   responded   that   "[t]he   effect   of   an   unavailable   audio-tape   of   the 

disciplinary hearing is the same whether there was never a tape, or it was misplaced or 
deliberately destroyed."   James then filed his "Statement of Disciplinary Hearing,"4 and 

DOC submitted its own "Statement in Lieu of Transcript." 

                On September 17, 2009, DOC filed its brief.  It argued that Flores properly 

relied on the incident report to find that James committed the infraction, that James failed 

to show that he was prejudiced by a third-party staff member writing the incident report, 

and   that   the   record   lacked   evidence   showing   that   James   complied   with   the   proper 

procedures to request Richey's presence at the disciplinary hearing.                DOC maintained 

that James's other claims were waived because James failed to raise them during the 

administrative proceedings.         James responded with a reply brief on October 2, 2009. 

Among other things, James stated that he had made a written request for Richey and 

Mathey to attend the disciplinary hearing and explained that "[t]his would account for 

why [he] was surprised that Rich[ey] and Mathey were not present at the hearing." 

                3.      The superior court decisions 
                On March 4, 2010, Superior Court Judge Frank A. Pfiffner5  found that "the 

record [was] incomplete on a critical due process issue," framing the issue as whether 

James had made a written request for Richey to attend the disciplinary hearing.  The 

superior court thus ordered DOC "to recreate the record of whether James provided or 

        4       It is unclear when James's statement reached DOC and the superior court. 

The statement is dated July 7, 2009 (one record copy is file-stamped July 13) but it was 
submitted to the superior court on July 27 with a motion to accept late filing; certificates 
of service show that the statement was sent to DOC on July 8 and August 3.                        DOC 
apparently received James's statement before it filed its own statement on September 14, 
2009, but it appears that the superior court did not. 

        5       Judge Pfiffner was assigned to this case when Judge Stowers's caseload 

was transferred in January 2010. 

                                                  -5-                                             6598

----------------------- Page 6-----------------------

attempted to provide written notice of his intent to call witnesses at the disciplinary 

hearing."  The superior court stated that if James had "complied with the requirement for 

written notice of calling Rich[ey], his absence at the hearing would have violated James's 

due process rights." 

                DOC responded that the record did not contain any written witness requests 

from James and claimed that James had not brought up any written request during the 

disciplinary hearing.  James filed a motion to correct the record, explaining that he had 

already filed a "Statement of Disciplinary Hearing," but the motion did not address 

whether he made a pre-hearing written request for witnesses. Judge Pfiffner affirmed the 

disciplinary   determination   on   April   28,   finding   "no   evidence   that   James   requested 

witnesses" and thus concluding that no due process violation occurred. 

                4.      Additional proceedings in the superior court 

                On May 6 James filed a motion to amend judgment, again arguing that the 

failure to record the disciplinary hearing violated due process. The motion also included 
James's affidavit, in which he alleged that he submitted a "cop-out"6 "requesting the 

writer of the report, and Mr. Richey, to be present at [his] hearing" as soon as he received 

the incident report.    James claimed: 

                As there was no cop-out box for use of the inmates in the 
                hole,   the  procedure    was    to  place  cop-outs    in  the  space 
                between the door and frame, for officers to pick up during 
                their inspection rounds.      I placed   the cop-out in the space 
                between the door and frame that evening.   When I awoke the 
                following morning, the cop-out was not there. My reasonable 
                assumption was that an officer had taken it and placed it with 
                the inter-institutional disburs[e]ment mail. 

        6       A "cop-out" refers to a "Request for Interview Form."  See State of Alaska 

Dep't of Corr. Policies & Procedures  808.03c (2006). 

                                                 -6-                                              6598 

----------------------- Page 7-----------------------

James added that after receiving notice of his disciplinary hearing he "informed the 

officer that [he] had already put in a cop-out in which [he] requested the writer of the 

report, and Mr. Richey to be present at [his] hearing." 

                On     June   16,   2010,    the  superior    court   denied    James's    motion     as 

"substantively without merit and . . . procedurally defective" because it was untimely and 

"submit[ted] new facts."       James filed a notice of appeal on June 23. 


                Appellate judicial review of prisoner disciplinary proceedings is available 
when   "issues   of   constitutional   magnitude"   are   involved.7     "Whether   an   inmate   has 

received procedural due process   is   an   issue of constitutional law that we review de 
novo."8    Because the superior court "act[ed] as an intermediate appellate court in an 

administrative   matter,"   we   "independently   review         the   merits   of   the   administrative 


                James argues that he was denied due process of law as guaranteed by the 

Fourteenth Amendment to the United States Constitution and article I, section 7 of the 

Alaska Constitution.       While inmates undeniably retain certain due process rights, we 

have adopted the United States Supreme Court's view that an inmate "is not entitled to 

        7       Dep't   of   Corr.   v.   Kraus,   759   P.2d   539,   540   (Alaska   1988);  see   also 

AS 33.30.295(b)(1) (providing that a disciplinary decision "may not be reversed . . . 
unless the court finds that the prisoner's fundamental constitutional rights were violated 
in the course of the disciplinary process, and that the violation prejudiced the prisoner's 
right to a fair adjudication"). 

        8       Brandon v. State, Dep't of Corr. (Brandon II), 73 P.3d 1230, 1233 (Alaska 

2003) (citing Abruska v. State, Dep't of Corr., 902 P.2d 319, 321 (Alaska 1995)). 

        9       Button v. Haines Borough, 208 P.3d 194, 200 (Alaska 2009). 

                                                  -7-                                            6598

----------------------- Page 8-----------------------

the   full   panoply   of   rights   due  an  accused    in  a   criminal   proceeding."10    We   have 

recognized that "to a significant degree disciplinary proceedings must be structured by 

prison authorities" and "[s]ubstantial institutional interests other than criminality are 
involved in disciplinary hearings."11 

                James argues that his due process rights were violated because: (1) the 

disciplinary determination was based entirely on hearsay in the incident report rather 
than on any direct evidence; and (2) the disciplinary hearing was not audio-recorded.12 

DOC   responds   that   the   disciplinary   determination   should   be   upheld   because   it   was 
supported   by   "some   evidence"   in   the   record13    and   that   an   inmate   is   not   denied   due 

process when a disciplinary hearing for a minor infraction is not recorded.  After a brief 

        10      McGinnis v. Stevens (McGinnis I), 543 P.2d 1221, 1226 (Alaska 1975); see 

also Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 

        11      McGinnis I, 543 P.2d at 1227, 1228. 

        12      James states generally in his appellate brief that he "raised several due 

process violations below" and "renews those claims herein."                To the extent that James 
has cognizable arguments aside from those addressed by this opinion, they are waived 
both because they were not raised during the administrative proceedings and because 
they are insufficiently briefed on appeal.         See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 
1995) (holding that even for pro se litigants   "[w]here a point is given only cursory 
statement in the argument portion of a brief, the point will not be considered on appeal"); 
Trustees for Alaska v. State, Dep't of Natural Res., 865 P.2d 745, 748 (Alaska 1993) 
(providing that "a party must raise an issue during the administrative proceedings to 
preserve the issue for appeal"). 

        13      We     note   that   while   federal   due    process    requires   only    that  inmate 

disciplinary decisions be supported by "some evidence in the record," Superintendent, 
Mass.     Corr.    Inst.,  Walpole     v.  Hill,  472    U.S.   445,   454-56     (1985),    22   Alaska 
Administrative Code (AAC) 05.420(b)(5)(D) provides that "the disciplinary tribunal 
shall, by a preponderance of the evidence, find whether the prisoner has committed the 
infraction."    (Emphasis added.) 

                                                   -8-                                             6598

----------------------- Page 9-----------------------

discussion of due process in the context of prison disciplinary proceedings, we consider 

these two issues in turn. 

        A.      Due Process And Inmate Disciplinary Proceedings 

                Inmates      are  afforded    due    process    protections    in  relation   to  prison 
disciplinary proceedings.14  We have adopted the United States Supreme Court's seminal 

decision   in   Wolff   v.   McDonnell,   which     established   that   in   the   context   of   a   prison 

disciplinary proceeding: 

                [D]ue process requires giving the inmate at least twenty-four 
                hour     advance     written    notice   of   the  alleged    violation; 
                supplying      the   inmate    with   a  written    statement    by   the 
                factfinders as to the evidence relied on and reasons for the 
                disciplinary action; allowing the inmate facing disciplinary 
                action to call witnesses and to present documentary evidence 
                on his behalf when to do so will not be unduly hazardous to 
                institutional   safety   or   correctional   goals;   and   allowing   an 
                illiterate inmate, or an inmate facing a complex issue, to have 
                assistance   in   marshalling   and   presenting   evidence   and   in 
                comprehending the issues of the case.[15] 

Beyond federal due process, 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."16           In McGinnis v. Stevens, we 

        14      See Brandon II, 73 P.3d 1230, 1234 (Alaska 2003) ("[U]nder 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."). 

        15      McGinnis   v.   Stevens  (McGinnis   II),   570   P.2d   735,   736   (Alaska   1977) 

(citing Wolff, 418 U.S. at 564-70). 

        16      Brandon II, 73 P.3d at 1234; see also Baker v. City of Fairbanks, 471 P.2d 

386,   401-02     (Alaska   1970)   ("While   we   must   enforce   the   minimum   constitutional 
standards imposed upon us by the United States Supreme Court's interpretation of the 

                                                   -9-                                             6598

----------------------- Page 10-----------------------

held that in addition to the protections required in  Wolff, under the Alaska Constitution 

a prisoner has a due process right to call witnesses and produce documentary evidence 

in his favor, subject to some limitations; to confront and cross-examine witnesses; and 

to have the entire hearing recorded "for purposes of administrative appeal and potential 
further appeal to the superior court."17 

                Because      the  due   process    protections    enumerated      in McGinnis       are 
guaranteed to inmates facing "major disciplinary proceedings,"18 we must first determine 

whether James's situation constituted a major disciplinary proceeding.  We recognized 

in McGinnis that prisoners may be disciplined for either "minor disciplinary matters" or 

"major     disciplinary   determinations"     and   that  "[a]ttempts    to  draw   a  hard  and   fast 
distinction between [the two] might well prove illusory."19            But we went on to explain 

that "[w]hether a disciplinary determination is major or minor will ordinarily revolve 

around two factors: the relative gravity of the offense and the nature of the consequences 
that may result."20 

                DOC      relies  on  McGinnis 's    mention     that  in  1975   the  Department     of 

Corrections defined a minor infraction to include an "infraction . . . which does not 


Fourteenth Amendment, we are free, and we are under a duty, to develop additional 
constitutional rights and privileges under our Alaska Constitution . . . ."). 

        17      McGinnis II, 570 P.2d at 737.  Alaska inmates also have a right to counsel 

when the charged infraction may result in felony prosecution.  Id. 

        18      Id. at   738.   We    previously    acknowledged       that   our  case  law  has  not 

addressed what process is due in proceedings involving "less than major" infractions. 
Brandon II, 73 P.3d at 1235. 

        19      McGinnis I, 543 P.2d 1221, 1226 n.6 (Alaska 1975). 

        20      Id. 

                                                 -10-                                           6598

----------------------- Page 11-----------------------

constitute a direct danger to person or property, and is not punishable in a court of law."21 

DOC maintains that James's alleged statement that he was going to put a "hit" on a 

former state legislator "did not constitute a direct danger to [that person]."              But DOC's 

reading of McGinnis is incorrect in light of our subsequent interpretations of that case, 

along     with   our   later  conclusions     that   "major    disciplinary    proceedings"      include 

disciplinary   proceedings   regarding   "low-moderate"   offenses   that   subject   inmates   to 

serious   punishment   such   as   solitary   confinement   and   loss   of   good   time   credit.   For 

example, we concluded in Abruska v. State, Department of Corrections, that allegations 

that a prisoner had committed a "low-moderate" offense under 22 AAC 05.400(d)(1) - 

exposing himself to a female corrections officer - triggered McGinnis due process 
protections.22     And     we   recognized     in  Department     of  Corrections     v.  Kraus    that  a 

punishment of loss of good time for the "low[-]moderate" infraction of lying to a prison 

official amounted to a major disciplinary proceeding "in the sense of the term employed 
in McGinnis"23 because the punishment imposed was among the most severe.24 

                Along with revocation of good time credit, McGinnis identified solitary 

confinement   as   one   of   the   "most   severe   punishments"   inmates   face   in   disciplinary 
proceedings.25     Indeed, in Abruska , even being restricted to a living module for seven 

days as punishment for a low-moderate infraction was sufficiently severe to amount to 

        21      Id. at 1227 n.11. 

        22      902 P.2d 319, 320-21 (Alaska 1995).  Abruska's punishment was one week 

of restriction to his living module.  Id. at 321. 

        23      759 P.2d 539, 540 n.3 (Alaska 1988). 

        24      Id. (quoting McGinnis I, 543 P.2d at 1226 n.6). 

        25      McGinnis I, 543 P.2d at 1226 n.6. 

                                                  -11-                                             6598

----------------------- Page 12-----------------------

a major disciplinary proceeding.26        Here, James was punished with 20 days of punitive 

segregation for the "low-moderate" infraction of "threatening another person with future 

bodily harm." Based on the seriousness of the charge and the severity of the punishment, 

we conclude that James faced a major disciplinary proceeding and was entitled to the due 

process protections set forth in McGinnis. 

        B.	     James's Due Process Right To Confront And Cross-Examine Adverse 
                Witnesses Was Violated. 

                James argued during the administrative and superior court proceedings that 

basing his disciplinary determination solely on "hearsay" evidence in the incident report 
was   a   due   process   violation.27  James   makes   related   claims   on   appeal,   namely   that 

Mathey and Richey were not at the disciplinary hearing and only hearsay evidence was 

presented.     The gravamen of James's argument is that because the incident report was 

written by Mathey rather than Richey, and because neither Mathey nor Richey appeared 

at the disciplinary hearing, James did not have an opportunity to confront and cross- 
examine his accusers.28      Though James characterizes this as an evidentiary issue, he also 

claims that it violated his constitutional rights, and whether certain testimonial evidence 

may be admissible under the rules of evidence does not resolve whether using such 

        26	     Abruska , 902 P.2d at 320-21. 

        27      Specifically, James asserted that Richey should have written the incident 

report, that the conversation James had with Richey was different from Mathey's written 
account, that Richey and Mathey should have attended the disciplinary hearing, and that 
James was denied the opportunity to call witnesses. 

        28      We interpret pro se pleadings liberally.  See Breck v. Ulmer, 745 P.2d 66, 

75 (Alaska 1987) (stating that "the pleadings of pro se litigants should be held to less 
stringent standards than those of lawyers"). 

                                                 -12-	                                           6598

----------------------- Page 13-----------------------

evidence      against   an  accused     is  constitutionally    permissible.29    Thus,     the  relevant 

consideration on appeal is whether James's due process confrontation right was violated 

during the disciplinary proceedings. 

                An inmate's right to call witnesses in the inmate's defense and the right to 
confront adverse witnesses are separate, distinguishable due process guarantees.30                      In 

explicitly   extending   the   right   to   confront   and   cross-examine   adverse   witnesses   to 

inmates, the McGinnis court cited "the premise that the rights to confrontation and cross- 
examination   are   fundamental   prerequisites   to   a   fair   hearing."31       As   we   explained, 

" '[c]ross-examination is the principal means by which the believability of a witness and 

        29      See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2715 (2011) (cautioning 

that even "the 'obvious reliability' of a testimonial statement does not dispense with the 
Confrontation Clause") (quoting  Crawford v. Washington, 541 U.S. 36, 62 (2004)); 
Crawford, 541 U.S. at 50-51 (rejecting view that application of Confrontation Clause 
"depends      upon    the  law   of  [e]vidence    for  the   time   being"   because     "[l]eaving   the 
regulation     of   out-of-court    statements     to  the   law   of  evidence     would     render   the 
Confrontation       Clause    powerless      to  prevent    even   the   most    flagrant   inquisitorial 
practices") (internal quotation marks omitted). 

        30      An inmate's right to call defense witnesses is guaranteed by both federal 

and state due process (e.g., Wolff v. McDonnell, 418 U.S. 539, 566 (1974); McGinnis I, 
543 P.2d at 1230), while the confrontation right is not protected by federal due process. 
See, e.g., Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003), cert. denied, 540 U.S. 
1114   (2004); Young   v.   Jones,   37   F.3d   1457,   1460   (11th   Cir.   1994)   ("[T]here   is   no 
constitutional   right   of   cross-examination   and   confrontation   of   witnesses   in   a   prison 
disciplinary hearing."). 

                That these two related due process rights are distinct is reflected in the state 
regulations governing prison disciplinary proceedings.                For example, 22 AAC 05.430 
discusses "Defense witnesses and   evidence at disciplinary hearing" while a separate 
section, 22 AAC 05.435 relates to "Prisoner's opportunity to confront accusers in a 
disciplinary hearing." 

        31      McGinnis I, 543 P.2d at 1231. 

                                                   -13-                                             6598

----------------------- Page 14-----------------------

the    truth  of   his  testimony     are   tested,'   and   'the   main    and   essential    purpose     of 
confrontation is to secure for the opponent the opportunity of cross-examination.' "32  We 

recognized   that   in   some   instances   allowing   an   inmate   to   confront   accusers   "could 

become erosive of authority and order in prison" but concluded that those concerns did 

not "justify a blanket denial on the part of inmates to confront and cross-examine adverse 
witnesses."33    Ultimately, we held that "an inmate should have the right to call witnesses 

and the right of cross-examination unless there are compelling reasons . . . for abridging 
those rights."34     We confirmed the importance of the confrontation right in Abruska , 

where we determined that a disciplinary committee's failure to question the staff member 

who wrote the incident report when the author was at the disciplinary hearing constituted 
a due process violation.35 

                 An    inmate's     due   process    right   to  confront     accusers    in  disciplinary 

proceedings is specifically addressed by state regulations at 22 AAC 05.435.                       Among 

other   things,   the   regulation   provides   that   "if   the   accused   prisoner   .   .   .   requests   the 

disciplinary tribunal to call as a witness the member of the facility staff who wrote the 

disciplinary report, the staff member shall appear as a witness" and the proceedings shall 
be postponed if the staff member is temporarily unavailable.36               The provision also states 

        32       Id. (quoting  Davis   v.   Alaska,   415   U.S.   308,   315-16   (1974)); see   also 

Crawford,   541   U.S.   at   50   (noting   that   the   "principal   evil"   which   the   Confrontation 
Clause was meant to counter was the "use of ex parte examinations as evidence against 
the accused"). 

        33       McGinnis I, 543 P.2d at 1231. 

        34       Id. (emphasis added). 

        35       Abruska v. State, Dep't of Corr., 902 P.2d 319, 322 (Alaska 1995). 

        36       22 AAC 05.435(a) (1999) (emphasis added). 

                                                    -14-                                              6598

----------------------- Page 15-----------------------

that an accused may only be excluded from the hearing during witness testimony if the 
hearing officer orally notes the "reasons for denying confrontation" for the record.37 

Several other regulations regarding prison disciplinary proceedings also reflect a concern 

for an inmate's confrontation right.          For example, 22 AAC 05.455(a) directs that an 

incident    report   may   be  considered     as  evidence    and   serve  as  the  sole   basis  for  a 

disciplinary   determination only "[i]f a prisoner does not request the presence of the 
facility staff member who wrote the disciplinary report."38            And as noted below, while 

state regulations provide that an inmate must request witnesses who will testify on the 

inmate's behalf with a 24-hour advance written notice, there is no similar procedural 
requirement      for  requesting    the  presence    of  adverse   witnesses.39    Pursuant     to  this 

regulation, the accused prisoner will have an opportunity to confront accusers unless the 

prisoner   forgoes   that   option.   In   addition,   we   have   required   that   "the   disciplinary 

committee must question the staff member who wrote the disciplinary report whenever 
the   inmate    has  requested    the  appearance     of  the  writer   of  the  report."40  Another 

regulation, 22 AAC 05.410(b), provides that a disciplinary report "must be written by 

the staff member with the most direct knowledge of the incident."                  This requirement 

ensures that an inmate and the disciplinary hearing officer will be able to identify the 

inmate's accuser, and that the accuser has "direct knowledge" and can testify regarding 

facts and observations rather than report hearsay evidence. 

                The superior court determined that James's due process rights had not been 

infringed because there was no evidence in the record that James complied with the 

        37      22 AAC 05.435(b). 

        38      22 AAC 05.455(a). 

        39      See 22 AAC 05.430. 

        40      Abruska , 902 P.2d at 322. 

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24-hour advance written notice requirement for requesting witnesses.41                 As an initial 

matter, the implied characterization of Richey and Mathey as James's own witnesses is 

incorrect.   As explained above, Richey, as the officer with the most direct knowledge of 
the incident, should have written the incident report.42          While failure to follow a state 

regulation is not a per se constitutional violation,43 here the regulation at issue, designed 

to protect an inmate's opportunity to confront accusers, implicated James's due process 

rights.  Mathey's writing the incident report was qualitatively different than the situation 

in Brandon I, where two officers were in an inmate's room at the same time and one 
found the contraband but the other ultimately wrote up the report.44           We recognized that 

"[t]echnically, the officer who finds the alleged contraband is required to write up the 

disciplinary report" but concluded   that the other officer's writing the report did not 

violate due process because the inmate failed to show that any "deficiency . . . in any way 
prejudiced [him]."45     In contrast, James demonstrated that he was prejudiced by the fact 

that the report was not authored by Richey because he maintained that "[w]hat was 

actually said in the conversation with [Richey] is a lot different than the hearsay report 

of the security chief."     Thus, James had the right to confront both Richey, who had the 

conversation with James that formed the basis of the incident report's charge and should 

        41      See id. at 321 ("An inmate facing a major disciplinary hearing is entitled 

to call witnesses . . . subject to certain limitations."). 

        42      See 22 AAC 05.410(b). 

        43      See Brandon II, 73 P.3d 1230, 1235 (Alaska 2003). 

        44      Brandon v. State, Dep't of Corr.  (Brandon I), 865 P.2d 87, 89 (Alaska 


        45      Id. 

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have written the report, and Mathey, who did write up the account of the incident.  Both 

were James's accusers for confrontation purposes. 

                 The superior court was therefore incorrect in concluding that James was 

required to request Richey's and Mathey's presence with 24-hour advance written notice. 

While the state regulations provide that an inmate may call witnesses on the inmate's 

behalf by requesting those witnesses with a 24-hour advance written notice, there is no 

identical   procedural   requirement   to   make   a   written   request   for   the   presence   of   the 
inmate's   accusers.46      Rather,   the   author   of   the   incident   report   "shall   appear"   if   the 

accused prisoner requests the disciplinary tribunal to call that person as a witness.47  The 

fact   that   Mathey   improperly   wrote   the   report   in   Richey's   stead,   in   violation   of   the 
regulation's requirement, does not transform Richey into James's own witness.48 

        46       22    AAC      05.430(a)     provides:     "The    accused     prisoner     may    present 

witnesses . . .  in the accused prisoner's defense . . . if written notice of the witnesses to 
be   called   .   .   .   is   given   to   the   disciplinary   tribunal   no   later   than   24   hours   before   the 
hearing,     unless   good    cause   is  shown     why   this  time   requirement      cannot    be  met." 
(Emphasis added.) 

        47       22 AAC 05.435(a). 

        48       See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2716 (2011) (reasoning 

that "when the State elected   to   introduce [a witnesses's] certification, [that witness] 
became a witness Bullcoming had the right to confront"); Davis v. Washington, 547 U.S. 
813, 826 (2006) (explaining that the Confrontation Clause may not be "evaded by having 
a note-taking police [officer] recite the . . . testimony of the declarant"). 

                 We note without deciding that even Mathey's testimony relating Richey's 
conversation with James may not have satisfied due process. See Bullcoming, 131 S. Ct. 
at 2716 (cautioning that the Confrontation Clause "does not tolerate dispensing with 
confrontation   simply   because   the   court   believes   that   questioning   one   witness   about 
another's      testimonial     statements     provides    a   fair  enough     opportunity      for   cross- 

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----------------------- Page 18-----------------------

                James alleges that he requested Richey's and Mathey's presence at the 

beginning of the disciplinary hearing - he "asked how come the writer of the report, and 

my witness, Mr. Rich[ey], are not here" and was informed that "they don't have to be 

here if they don't want to be."          Because Mathey and Richey were not James's own 

witnesses     but   James's    accusers,    and   because    James    sought    their  presence    at  the 

disciplinary hearing, James's failure to comply with the 24-hour written notice required 

for calling witnesses "in the accused prisoner's defense" did not excuse Mathey and 

Richey   from   attending   the   hearing,   and   their   absence   violated   James's   due   process 

confrontation right. 

                Our conclusion finds support in cases from New Jersey, which also extend 

the confrontation right to inmates in disciplinary proceedings when "necessary for an 

adequate presentation of the evidence, particularly when serious issues of credibility are 
involved."49     One New Jersey court held that an inmate was entitled to confront the 

accusing   officer   where   the   outcome   turned   on   whether   the   inmate   had   intentionally 

blocked   a   doorway,   explaining   that   if   an   inmate's   alleged   infraction   "turns   on   the 

credibility of the officer or the inmate" the inmate is entitled to confront and cross- 
examine the  officer.50      The court explained this type of case could not "be resolved 

exclusively by reference to the charging officer's report";  rather "the inmate is entitled 

to challenge the officer's perceptions by developing why the officer thought the incident 
was purposeful as opposed to accidental."51           Three years later, a New Jersey court again 

held that a disciplinary hearing violated an inmate's due process confrontation right, 


        49      Avant v. Clifford , 341 A.2d 629, 647 (N.J. 1975).

        50      Decker v. N.J. Dep't of Corr., 751 A.2d 1094, 1098 (N.J. App. 2000).

        51      Id.

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----------------------- Page 19-----------------------

                When [the inmate] was denied in-person confrontation and 
                cross-examination . . . of . . . his accuser, he was deprived of 
                the    fundamental      opportunity     to  develop    his  defense    by 
                revealing the weaknesses in the accusation against him either 
                on the basis of the accuser's credibility or otherwise.  The 
                hearing officer's decision was based on a credibility finding 
                favorable to [the accuser].       It was a determination that could 
                not   be   fairly  reached    without   affording     [the  inmate]    the 
                opportunity to address the credibility issue effectively. . . . 
                Nothing   substitutes   for   the   trier   of   fact's   opportunity,   in 
                measuring truth or falsity, to view the witness's demeanor in 
                presenting his allegations.[52] 

Because Mathey and Richey were James's accusers, James did not have to do more than 

request   their   presence   during   the   disciplinary   hearing   and   their   absence   was   a   due 

process violation. 

        C.	     James's Due Process Rights Were Violated By The Failure To Record 
                The Disciplinary Hearing. 

                After initially reporting to the superior court that "the tape recording of 

[James's] disciplinary hearing [was] no longer available," (emphasis added) the assistant 

attorney general representing DOC later conceded that James's disciplinary hearing had 
not been recorded.53      James contends that the failure to record his disciplinary hearing 

was   a   due   process   violation.   The   superior   court   never   specifically   addressed   this 

argument and referred to the "presence or absence of the tape" as a "collateral issue." 

DOC argues that James waived this issue by failing to raise it during the administrative 

proceedings.     But James alleges that he asked the hearing officer why the hearing was 

        52	     Jones v. Dep't of Corr., 819 A.2d 1, 4 (N.J. App. 2003). 

        53      It is troubling that DOC represented to the superior court that the recording 

was "no longer available," implying that it had been misplaced or perhaps destroyed, 
when in fact no such recording ever existed. 

                                                  -19-	                                               6598 

----------------------- Page 20-----------------------

not being recorded, and it is precisely because the hearing was not recorded that James 

cannot prove that he raised this issue at the administrative level. 

                 The McGinnis due process protections include "the right to have the entire 

[disciplinary]   hearing   recorded   for   purposes   of   administrative   appeal   and   potential 
further appeal to the superior court."54        DOC contends that James's disciplinary hearing 

dealt with a "minor infraction" and so did not have to be recorded.  But as we explained 

above,   because   James   was   accused   of   a   "low-moderate"   offense   and   punished   with 

solitary confinement, under our case law this was a major disciplinary proceeding and 
James was entitled to all of the procedural protections identified in McGinnis.55 We 

conclude that James had a due process right to have his disciplinary hearing recorded. 

                 But    for  us   to  reverse    a  disciplinary    determination,      an   inmate    must 

demonstrate both that a constitutional right was violated and that the violation prejudiced 
the inmate's right to a fair adjudication.56         DOC argues that James did not indicate how 

the failure to record his disciplinary hearing was prejudicial to him, but we cannot agree. 

We   have   explained   that   "the   requirement   of   a   verbatim   record   will   help   insure   that 

        54       McGinnis II, 570 P.2d 735, 737 (Alaska 1977).  In Carlson v. Renkes, we 

stated   that   "[t]he   loss   of   an   administrative   record   is   in   itself   not   a   violation   of   due 
process."  113 P.3d 638, 643 (Alaska 2005).  But Carlson is distinguishable.  This case 
involves   an   administrative   record   that   was   not   simply   "lost"   but   was   never   made. 
Moreover, Carlson involved a classification hearing, not a major disciplinary proceeding 
pursuant to McGinnis. 

        55       See supra Part IV.A.  We note in passing that 22 AAC 05.420(b)(1), which 

lays out the requirement to audio-tape disciplinary hearings, applies to all infractions 
apart from the "minor" infractions listed at 22 AAC 05.400(e).                   The regulation directs 
that the hearing officer "shall call the meeting to order and, unless the alleged violation 
is a minor infraction under 22 AAC 05.400(e), ensure that the proceedings are tape- 
recorded." (Emphasis added.) 

        56       See AS 33.30.295(b)(1). 

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administrators . . . will act fairly[,] will furnish a more complete and accurate source of 

information than the 'written statement' requirement . . . , [and] will assist in facilitating 
a more intelligent review of the disciplinary proceeding."57            In this case James and DOC 

were   ordered   to   prepare   statements   of   the   evidence   and   testimony   presented   at   the 

disciplinary   hearing.     James's   statement   differed   in   significant   aspects   from   DOC's 

version, including a discrepancy over whether James asked why Mathey and Richey 

were not present at the hearing and how the hearing officer responded to James's inquiry. 

Given   that   the   primary   purpose   of   recording   a   disciplinary   hearing   is   to   accurately 

preserve it for administrative appeal and appeal to the superior court, the failure to record 

the hearing in this case was prejudicial to James's right to a fair adjudication. 


                We     REVERSE        and   REMAND         this   case   to  the  superior    court  with 

directions     to  order   that   the  disciplinary  determination      be  vacated    and   that   a  new 

disciplinary hearing be held and recorded with James being afforded the opportunity to 

confront and cross-examine his accusers. 

        57      McGinnis I, 543 P.2d 1221, 1236 (Alaska 1975) (agreeing that "a tape 

recording of the entire disciplinary proceeding is essential"). 

                                                   -21-                                               6598 
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