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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Walker v. State, Dept. of Corrections (4/27/2018) sp-7237

Walker v. State, Dept. of Corrections (4/27/2018) sp-7237

             Notice:   This opinion is subject to correction before publication in the P                                      ACIFIC  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  

                                                                                                                                                  

             corrections@akcourts.us.  



                           THE SUPREME COURT OF THE STATE OF ALASKA                                                      



SCOTT  WALKER,                                                                )  

                                                                              )     Supreme  Court  No.  S-16202  

                                       Appellant,                             )  

                                                                                                                                                         

                                                                              )     Superior Court No. 3PA-14-02547 CI  

             v.                                                               )  

                                                                                                            

                                                                              )     O P I N I O N  

                        

STATE OF ALASKA,                                                              )  

                                                                                                                              

                                          

DEPARTMENT OF CORRECTIONS, )                                                        No. 7237 - April 27, 2018  

                                                                              )  

                                       Appellee.                              )  

                                                                              )  



                                                                                                                                   

                          Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                   

                          Judicial District, Palmer, Eric Smith, Judge.  



                                                                                                                                            *  

                                                                                                                       

                          Appearances:                  Scott  Walker,  pro  se,  Wasilla,  Appellant.   

                          Matthias  Cicotte,  Assistant  Attorney  General, Anchorage,  

                                                                                                                       

                          and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                                                                                                                                      

                          Appellee.                  Susan          Orlansky,              Reeves             Amodio,              LLC,  

                                                                                                                                 

                          Anchorage, for Amicus Curiae ACLU of Alaska Foundation.  

                                                                                                                                               

                          Cynthia  Strout,  Anchorage,  for  Amicus  Curiae  Alaska  

                                                                                                                              

                          Association of Criminal Defense Lawyers.  

                                                                                           



                          Before:             Stowers,  Chief  Justice,  Maassen,  Bolger,  and  

                                                                                                                                     

                          Carney, Justices.  [Winfree, Justice, not participating.]  

                                                                                                        



                          BOLGER, Justice.  

                                                



             *            This casewasconsolidated                           with  Huberv.State,DepartmentofCorrections                                               ,  



No. S-16190, and                      DeRemer v. State, Department of Corrections                                                , No. S-16194, for              

purposes of oral argument.                             Christopher V. Hoke, Hoke Law, Anchorage, counsel of                                                        

record for Huber and DeRemer, presented argument on behalf of Walker.                                                                           


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

I.            INTRODUCTION  



                            The Alaska Department of Corrections (DOC) found an inmate guilty of  

                                                                                                                                                                                



making a false statement to a staff member about work he was supposed to be doing and  

                                                                                                                                                                             



ordered the inmate to pay in restitution half the amount of his wages for that work.  The  

                                                                                                                                                                            



inmate appeals, arguing that DOC violated his due process rights by refusing to allow  

                                                                                                                                                                         



him to call witnesses at his disciplinary hearing. We conclude that Walker did not waive  

                                                                                                                                                                        



his due process claim by failing to raise it during the administrative appeal process.  We  

                                                                                                                                                                             



also recognize that prisoners have a constitutional right to call witnesses at a disciplinary  

                                                                                                                                                           



hearing and that the hearing officer's failure to call Walker's requested witnesses was  

                                                                                                                                                                            



prejudicial.  We thus reverse the disciplinary decision and remand for a new hearing.  

                                                                                                                                                                 



II.           FACTS AND PROCEEDINGS  

                                              



                            Inmate  Scott  Walker  started  work  in  October  2013  as  an  Orientation  

                                                                                                                                                            



Assistant in the Special Management Unit at Goose Creek Correctional Center.  Walker  

                                                                                                                                                                     



wrote up an outline of topics he thought should be covered at orientation for new inmates  

                                                                                                                                                                     



and awaited further instructions.  

                                           



                            In August2014,Criminal JusticeTechnicianBrookeBaumgartnermet with  

                                                                                                                                                                            



Walker to discuss his job.  She learned during the meeting that, although Walker had  

                                                                                                                                                                             



continued to be paid, he had not actively worked since November 2013.  According to  

                                                                                                                                                                                 



Baumgartner, Walker admitted to "taking advantage of the situation."  He told her that  

                                                                                                                                                                             



he had attempted to inform four different staff members about the payroll mistake, but  

                                                                                                                                   

when pressed he could only name two officers. Walker also said he had "sent cop-outs"1  

                                                                                                                                                               



              1             A "cop-out" is a "Request for Interview Form" used by inmates to contact                                                                  



officers.   A DOC policy requires that completed cop-outs be added to the inmate's file.                                                                                              

See James v. State, Dep't of Corr.                                      , 260 P.3d 1046, 1049 n.6 (Alaska 2011); S                                                 TATE OF   

ALASKA,DEP 'T OF CORR.,POLICIES AND PROCEDURES  808.11(VII)(A)(2)(f), 808.11a                                                                                     

                                                                                                                

(2008), http://www.correct.state.ak.us/commissioner/policies-procedures.   



                                                                                       -2-                                                                                7237
  


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

regarding the situation.                           Baumgartner contacted both of the officers Walker had named,                                                         



and one stated that Walker had never informed her of the mistake.                                                                            She also found that               



Walker's   file   did   not   contain   any   pertinent   cop-outs.     Baumgartner  calculated   that  



Walker had been overpaid by $633.50.                             



                            Based on this information, DOC charged Walker with the infractions of                                                                                  



"stealing,   destroying,   altering   or   damaging  government   property"   and   "lying   or  

                                                                                                    2  After receiving notice of a scheduled  

providing a false statement to a staff member."                                                                                                                   



disciplinary hearing, Walker timely requested the presence of three witnesses:  the two  

                                                                                                                                                                               



officers he claimed to have informed of the overpayment issue and an inmate working  

                                                                                                                                                                      



as a Job Services Clerk who also claimed to have reported Walker's overpayment issue  

                                                                                                                                                                             

to one of the officers.  According to Walker, Officer Wright,3  who presided over the  

                                                                                                                                                                                 



disciplinary hearing, denied the request off the record and without explanation.  

                                                                                                                                                                         



                            At the disciplinary hearing, Walker testified that he "never made a false  

                                                                                                                                                                            



statement to anyone" and denied telling Baumgartner that he had "tak[en] advantage of  

                                                                                                                                                                                   



the situation." He stated that originals of cop-outs are not kept in an inmate's file, which  

                                                                                                                                                                           



could explain why Baumgartner did not find any record of the cop-outs he claimed to  

                                                                                                                                                                                   



have sent. Walker's testimony was often interrupted by Officer Wright, who twice shut  

                                                                                                                                                                               



off the recorder and, according to Walker, used "intimidation" to influence Walker's  

                                                                                                                                                                   



testimony.  

                        



                            Baumgartner also testified at the hearing, and Walker cross-examined her.  

                                                                                                                                                                                         



When asked by Walker to identify the "untruth" he had told her, Baumgartner responded  

                                                                                                                                                                  



that Walker had "stated that he [had] informed four different staff members that he . . .  

                                                                                                                                                                                     



              2             22 Alaska Administrative Code (AAC) 05.400(c)(5), (d)(4) (2004 &Supp.                                                                           



2015).  



              3             Officer Wright's full name is not in the record.  

                                                                                                                                 



                                                                                         -3-                                                                                 7237
  


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

                                                                                                                              

was not working but getting paid" and that Walker had "also stated that he sent four cop- 



                                                                                                                          

outs" on the issue. Baumgartner viewed the former statement as untrue because Walker  



                                                                                                                      

"could only identify two people" he had told.  Baumgartner viewed the latter statement  



                                                                                                                          

as untrue because neither she nor Walker had been able to locate the cop-outs.  Walker  



                                                                                                                               

countered that he had found one of the cop-outs, and he asserted that Baumgartner had  



                                                                                                                                

"omitted" it from her report.  But Baumgartner explained that she had not included the  



                                                     

cop-out because it was irrelevant.  



                                                                                                                  

                    At the close of the hearing, Officer Wright summarized that "somewhere  



                                                                                                                               

along the line, [Walker] omitted telling people that . . . [he was] getting paid for a job that  



                                                                                                                         

[he was not] really doing." Accordingly, Officer Wright found Walker guilty of making  



                                                                                                                            

a false statement to a staff member and ordered him to pay restitution of $316, just under  



                                                                    

half the amount by which he was overpaid.  



                                                                                                                             

                    Walker appealed to the superintendent. He emphasized that he never made  



                                                                                                              

a false statement, but he did not raise any procedural concerns.   The superintendent  



                                                                                                    

denied the appeal and concurred with Officer Wright's decision.  



                                                                                                                     

                    Walker then appealed to the superior court representing himself, reiterating  



                                                                                                                                      

the argument that no evidence supported the finding that he had made a false statement.  



                                                                                                                    

He also made two new arguments for the first time:  (1) DOC violated his procedural  



                                                                                                                   

rights by refusing to allow him to call witnesses in his defense, and (2) the punishment  



                                                                                                                             

of restitution was not allowed under the circumstances of his case.  The superior court  



                                                                                                                        

affirmedDOC,determiningthat"someevidence"supported DOC'sdisciplinary decision  



                                                                                                               

and that Walker had waived the other claims by failing to raise them in his administrative  



                                              

appeal to the superintendent.  



                                                                                                                               

                    This  appeal  followed.                Walker,  still  representing  himself,  repeats  his  



                                                                                                                        

argument from the superior court that DOC violated his due process rights by refusing  



                                                                -4-                                                         7237
  


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

                                                                                                                                                4  

to allow him to call witnesses in his own defense.                                                                                                  After the parties submitted their                                                



initial briefing, we requested supplemental briefing on the following questions:                                                                                                                                              (1) Do   



the prisoner discipline statutes or regulations require a prisoner to raise an issue on                                                                                                                                                   



appeal to the superintendent in order to preserve the issue for judicial review?                                                                                                                                                 (2) In   



light of the broad authority given to the superintendent under 22 AAC 05.480, is it                                                                                                                                                           



appropriate to require the issue preservation typical of adversarial judicial proceedings?                                                                                                                   



(3)   Does   a   prisoner   have   notice   that   the   failure   to   raise   an   issue   on   appeal   to   the  



superintendent will result in waiver of that issue?                                                                      



III.	              DISCUSSION  



                                                                                                                                                                                                                                             

                   A.	               Walker Did Not Forfeit His Due Process Claim By Failing To Raise It  

                                                                                                                         

                                     During The Administrative Appeal.  



                                                                                                                                                                                                                                            

                                     "As a general matter, it is inappropriate for courts reviewing appeals of  



                                                                                                                                                                                                                             

agency decisions to consider arguments not raised before the administrative agency  



                              5  

                                                                                                                                                                                                                                     

involved."                         Previously, we have required litigants to exhaust issues at the agency level  



                                                                                                                                             6  

                                                                                                                                                                                                                 

before raising them on appeal in the superior court.                                                                                              And in James v. State, Department  



                   4                 He also argues that DOC violated his due process rights by imposing a                                                                                                        



sanction (restitution) not authorized by regulation and that no evidence supported the                                                                                                                                                   

decision   reached   at   the   disciplinary   hearing.     Our   resolution   of   Walker's   claim  

concerning his right to call witnesses obviates consideration of these other claims of                                                                                                                                                      

error.  



                   5                  1000  Friends  of  Md.  v.  Browner,  265  F.3d  216,  227  (4th  Cir.  2001)  

                                                                                                                                                                                                                                

(quoting Pleasant Valley Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994)); see also  

                                                                                                                                                                                                                                       

 United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) ("Simple fairness  

                                                                                                                                                                                                                             

to those who are engaged in the tasks of administration, and to litigants, requires as a  

                                                                                                                                                                                                                                               

general  rule  that  courts  should  not  topple  over  administrative  decisions  unless  the  

                                                                                                                                                                                                                                        

administrative body not only has erred but has erred against objection made at the time  

                                                                                                                                                                                                                                      

appropriate under its practice.").  

                                                            



                   6                 See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1256-57 (Alaska  

                                                                                                                                                                                                                            

                                                                                                                                                                                                             (continued...)  



                                                                                                                     -5-	                                                                                                           7237
  


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

of Corrections            , we extended the issue exhaustion requirement to prison disciplinary                                  



              7  

appeals.                                                                                                                  

                  Walker did not raise his procedural arguments before the superintendent;  



                                                                                                 

James thus appears to preclude Walker's arguments on appeal.  



                                                                                                                                            

                       This case, however, compels us to reconsider the application of an issue  



exhaustion requirement to prison disciplinary appeals.  Though an issue not presented  



                                                                                                                                            

to an administrative decisionmaker generally cannot be argued for the first time in court,  

                                                                       8    Determining whether issue exhaustion is  

                                                                                                                                                  

"such a rule is not always appropriate." 



appropriate in any given context "requires an understanding of [exhaustion's] purposes  

                                                                                                                                      

and of the particular administrative scheme involved."9  Thus, our cases mandating issue  

                                                                                                                                             



exhaustion in several types of agency proceedings should not be construed to "announce  

                                                                                                                                   

an inflexible practice" of mandating issue exhaustion in all such proceedings.10   Rather,  

                                                                                                                                         



we must carefully analyze the particular administrative scheme at issue before imposing  

                                                                                                                                      



an issue exhaustion requirement in a new context.  We neglected to conduct any such  

                                                                                                                                             

                                                        11  we remedy the oversight now.  

particularized analysis in James ;                                                                      

                                             



            6(...continued)  



                                                                                                                                          

2007); Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996); Ratliff v. Alaska  

                                                                                          

 Workers' Comp. Bd., 721 P.2d 1138, 1142 (Alaska 1986).  



            7          260 P.3d 1046, 1050 n.12 (Alaska 2011) (deeming appellant's challenges  

                                                                                                                                   

to prison disciplinary decisions "waived . . . because they were not raised during the  

                                                                                                                                                

administrative proceedings").  

                           



            8          Sims v. Apfel, 530 U.S. 103, 112-13 (2000) (O'Connor, J., concurring).  

                                                                                                                             



            9          McKart v. United States, 395 U.S. 185, 193 (1969) (discussing exhaustion  

                                                                                                                                   

of administrative remedies).                         In  Sims  the  Supreme Court cited this language in  its  

                                                                                                                                                 

analysis of issue exhaustion.  530 U.S. at 109-10.  

                                                                        



            10         Hormel v. Helvering, 312 U.S. 552, 556 (1941).  

                                                                                              



            11         In James  we  cited  Trustees for  Alaska  v. State, Department  of Natural  

                                                                                                                                        

                                                                                                                              (continued...)  



                                                                        -6-                                                                 7237
  


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

                       As a threshold matter, we note that issue exhaustion in administrative                              



                                                                                       12  

appeals is often mandated by statute or regulation.                                                                                            

                                                                                            When this is the case, we do not  



                                                                                                                                                

need  to  determine  whether  a  judicially  created  issue  exhaustion  requirement  is  

                     13  Here,however,theregulation that governstheintra-agency appeal process  

appropriate.                                                                                                                            

does not articulate an issue exhaustion requirement.14                                           Neither does the statute that  

                                                                                                                                             

governs appeals from the final decision of the DOC.15  As the State notes, the statute and  

                                                                                                                                              



regulation together require prisoners to exhaust all administrative remedies before filing  

                                                                                                                                           

an  appeal  in  superior  court.16                           But  while  issue  exhaustion  and  exhaustion  of  

                                                                                                                                               



            11(...continued)  



                                                                                                                                                 

Resources, 865 P.2d 745, 748 (Alaska 1993), which addressed issue exhaustion not in  

                                                                                                                                               

the  context  of  prison  disciplinary  proceedings  but  rather  in  the  context  of  an  

                                                                                                                                     

administrative challenge to a lease of state land for oil development.  James, 260 P.3d  

                                                                                                                                            

at  1050  n.12.               More  detailed  analysis  of  the  issue  exhaustion  requirement  was  

                                                                                                 

unnecessary in James because an alternative ground - deficient appellate briefing -  

                                                                                                                               

independently precluded consideration of the appellant's arguments.  See id.  



            12         See Sims, 530 U.S. at 107-08 ("[R]equirements of administrative issue  

                                                                                                                                           

exhaustion are largely creatures of statute."); United States v. L.A. Tucker Truck Lines,  

                                                                                                                                          

Inc., 344 U.S. 33, 36-37 (1952).  

                                           



            13         See Sims, 530 U.S. at 107-08; Jarita Mesa Livestock Grazing Ass'n v. U.S.  

                                                                                                                                             

Forest Serv., 61 F. Supp. 3d 1013, 1068 (D.N.M. 2014) ("[C]ourts may impose an  

                                                                                                                                                

issue-exhaustion requirement where none exists in the statute or regulation, but . . . they  

                                                                                                                                             

may not remove or disregard a statute or regulation that requires issue exhaustion."),  

                                                                                                                            

amended in part on other grounds, No. CIV. 12-0069 JB/KBM, 2015 WL 5138286  

                                                                                                                                     

(D.N.M. Aug. 26, 2015).  

                                 



            14         See 22 AAC 05.480 (2004).  

                                                           



            15         See AS 33.30.295.  

                                     



            16         See  AS  33.30.295(a)  ("A  prisoner  may  obtain judicial  review  by  the  

                                                                                                                                              

superior court of a final disciplinary decision . . . ."); 22 AAC 05.480(o) ("A decision on  

                                                                                                                                                

appeal that has no further level of appeal under this section is a final decision and order  

                                                                                                                                           

                                                                                                                             (continued...)  



                                                                        -7-                                                                7237
  


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

administrative   remedies   "can   be   concurrent   concepts   at   times,   .   .   .   they   are   not  



                             17  

synonymous."                                                                                                                                            

                                   Accordingly, we reject the State's argument that an issue exhaustion  



                                                                                                                                                            

requirement   is   "inherent"   in   the   requirement   that   prisoner   appellants   exhaust  



                                                 18  

                                                      

                               

administrative remedies. 



                           Having  thus  concluded  that  no  statute  or  regulation  mandates  issue  

                                                                                                                                             



exhaustion, we must determine whether to impose such a requirement based on "an  

                                                                                                                                                                      



analogy to the rule that appellate courts will not consider arguments not raised before  

                                                                                                                                                                 

trial  courts."19                To  answer  this  question,  we  examine  the  unique  characteristics  of  

                                                                                                                                                                         



prisoner disciplinary proceedings.  

                                           



                           First,  and  perhaps  most  importantly,  we  note  that  a  "failure  to  notify  

                                                                                                                                                                 

claimants of any issue-exhaustion requirement . . . weighs against imposing one."20  

                                                                                                                                                                               



              16(...continued)  



                                                                                                                                                                    

of  the  department  that  may  be  appealed  to  the  superior  court  in  accordance  with  

                                                                                                                                

AS 33.30.295 and the Alaska Rules of Appellate Procedure.").  



              17          Mass., Dep't of Pub. Welfare v. Sec'y of Agric. , 984 F.2d 514, 523 n.8  

                                                                                                                                                                       

(1st Cir. 1993) (citing 4 KENNETH  CULP  DAVIS, A                                                 DMINISTRATIVE  LAW  TREATISE   26:7   

                                                

(2d ed. 1983)).                 "Issue exhaustion" refers to the requirement that individual issues must                                                            

be raised in an administrative appeal in order to raise those issues in a subsequent judicial                                                                  

proceeding; "exhaustion of administrative remedies" refers to the requirement that a party                                                                         

exhaust the administrative                           process  as a predicate for judicial review.                                         See Etchu-Njang   

v.  Gonzales, 403 F.3d 577, 581 (8th Cir. 2005).                                                 



              18           See Sims 530 U.S. at 107 ("The Commissioner argues, in particular, that an  

                                                                                                                                                                         

issue-exhaustion  requirement  is  'an  important  corollary'  of  any  requirement  of  

                                                                                                                                                                        

exhaustion of remedies.  We think that this is not necessarily so and that the corollary is  

                                                                                                                                                                           

particularly unwarranted in this case." (citation omitted)).  

                                                                                                



              19           Id. at 108-09.  

                                       



             20            Vaught v. Scottsdale HealthcareCorp.Health Plan, 546F.3d620, 632 (9th  

                                                                                                                                                                      

Cir. 2008) (citing Sims, 530 U.S. at 113 (O'Connor, J., concurring)).  

                                                                                                                



                                                                                    -8-                                                                            7237
  


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

Administrativeagencies exerciseextensivecontrol over theintra-agencyappealsprocess;                                                                                                                                                                



they   enact   the   governing   regulations,   explain   the   process   to   litigants,   and   provide  



litigants with the appropriate forms for filing an appeal. Thus, where an agency declines                                                                                                                                                          



to  

       inform litigants of an issue exhaustion requirement during the administrative appeal                                                                                                                                                            



process, permitting the agency to assert an issue exhaustion defense in court raises serious                                                                                                                                                          



                                                        21  

fairness concerns.                                            As indicated above, DOC regulations do not provide notice that                                                                                                                                   



failure to raise an issue during the administrative appeal process results in waiver of that                                                                                                                                                                    

                  22        Nor  do  the  forms  distributed  to  prisoners  during  the  intra-agency  appeals  

issue.                                                                                                                                                                                                                                             



process. While we acknowledge that issue exhaustion generally serves important public  

                                                                                                                                                                                                                                                         



policy  objectives,  here  "the  interests  of  the  individual  weigh  heavily  against  the  

                                                                                                                                                                                                                                                                

institutional interests the doctrine exists to serve."23  

                                                                                                                                     



                                          Second,  we  also  take  into  account  the  limited  resources  available  to  

                                                                                                                                                                                                                                                                    



prisoners during the administrative appeal process. Prisoners have only "three working  

                                                                                                                                                                                                                                                 



days after receipt of the disciplinary tribunal's written decision" to prepare and submit  

                                                                                                                                                                                                                                                      

their appeals.24                                 And under current DOC regulations, prisoners have no right to counsel                                                                                                                              

                                                                                                                                                                    



                     21                   Cf. Kikumura v. Osagie                                                     , 461 F.3d 1269, 1285 (10th Cir. 2006) ("If the                                                                                             



 [agency] wants inmates to provide specific types of information in their grievances, it                                                                                                                                          

should notify them of those requirements in advance rather than waiting until they have                                                                                                                                                                      

already completed the grievance process and filed a lawsuit." (citing                                                                                                                                                Sims, 530 U.S. at                                

 113 (O'Connor, J., concurring))),                                                                          abrogated on other grounds by Bell Atl. Corp. v.                                                                                                         

 Twombly, 550 U.S. 544 (2007).                                             



                     22                  See 22 AAC 05.480.  

                                                                                  



                     23                  Scott v. McDonald, 789 F.3d 1375, 1378 (Fed. Cir. 2015) (quoting Maggitt  

                                                                                                                                                                                                                                                   

v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000)).  

                                                                                                                            



                     24                  22 AAC 05.480(b).  

                                                                     



                                                                                                                                  -9-                                                                                                                       7237
  


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

                                                                                                                                                                                     25  

or a staff advocate for legal assistance in preparing their appeal.                                                                                                                        We acknowledge that                                  



 some particularly adept prisoners may be able to identify and develop constitutional                                                                                                                             



claims while proceeding pro se. And, as the State argues, our discussion in                                                                                                                                           James  could  

                                                                                                                                  26  Nevertheless, it seems evident that most  

provide them with notice that they must do so.                                                                                                                                                                                               



prisoners  will  lack  the  time  and  expertise  necessary  to  effectively  present  their  

                                                                                                                                                                                                                                           

constitutional claims.27  

                                          



                                       Third, the statutory scheme governing appeals from prison disciplinary  

                                                                                                                                                                                                   



proceedings weighs against imposing an issue exhaustion requirement. Issue exhaustion  

                                                                                                                                                                                                                            



incentivizes parties to raise issues during the agency proceeding by circumscribing the  

                                                                                                                                                                                                                                                  



 scope  of  judicial  review,  thereby  "allowing  the  agency  .  .  .  to  apply  its  special  

                                                                                                                                                                                                                                     

expertise."28   However, AS 33.30.295 already circumscribes courts' authority to review  

                                                                                                                                                                                                                                       



                    25                 An inmate accused of a nonminor infraction has a right "to the assistance                                                                                                              



of an advocate in investigating the facts and preparing and presenting a defense at [the]                                                                                                                                                    

disciplinary hearing," 22 AAC 05.440(a) (2004), and a staff advocate was in fact present                                                                                                                                              

at Walker's disciplinary hearing. A prior regulation provided that inmates were entitled                                                                                                                                             

to a staff advocate in preparing their appeal as well.                                                                                                See Hertz v. Prewitt                                       , Nos. S-4365,     

 S-4434, 1992 WL 12549802                                                                  (Alaska May 27, 1992) ("The prisoner may have the                                                                                                     

assistance of his or her advocate in preparing [the] appeal." (citing former 22 AAC                                                                                                                                                        

05.480(b) (am. 1/9/87))).                                                    But that provision has since been removed.                                                                                           See   22 AAC   

05.480(b).    



                    26                 Cf. Jovanov v. State, Dep't of Corr., 404 P.3d 140, 154 (Alaska 2017)  

                                                                                                                                                                                                                                         

(holding that a statute "establishing [a prisoner's] potential financial responsibility for  

                                                                                                                                                                             

medical care" provided adequate notice that DOC would not cover medical costs).  

                                                                                                                                                                                                                            



                    27                 See Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.  

                                                                                                                                                                                                                                               

 1989) (per curiam) ("To require a pro se plaintiff . . . to wade through the case law of this  

                                                                                                                                                                                                                                                 

Circuit in order to preserve her right to appellate review would be an unreasonable  

                                                                                                                                                                                                          

burden."); see also Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008).  

                                                                                                                                                                                                                      



                    28                 Jon C. Dubin, Torquemada Meets Kafka:  The Misapplication of the Issue
  

                                                                                                                                                                                                                                            

Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 COLUM. L. R                                                                                                                                                                  EV.
  

                                                                                                                                                                                                           

                                                                                                                                                                                                                    (continued...)
  



                                                                                                                        -10-                                                                                                                 7237
  


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

final disciplinary decisions:                                  Prisoners may obtain judicial review of a final disciplinary                                           



decision only when they allege "violation of . . . fundamental constitutional rights."                                                                                                           



Effectively, then, the question before us is whether prisoners should be required to raise                                                                                           



constitutional  claims during their administrative appeal in order to avoid waiver.  And                                                       



 superintendents have no special expertise to address constitutional claims.                                                                                                Judicial  



review of such claims thus does not "impermissibly displace agency skill or invade the                                                                                                   

field of agency discretion."                                29  



                              DOC's  regulations  reflect  prison  superintendents'  lack  of  expertise  in  

                                                                                                                                                                                          



constitutional  matters.                                Under  22  AAC  05.480(f),  superintendents  "shall  consider  

                                                                                                                                                                           



whether  the  disciplinary  tribunal's  findings  justify  the  adjudication  or  the  penalty  

                                                                                                                                                                              



imposed."  However, the regulation does not impose a similar requirement to review  

                                                                                                                                                                                



constitutionalclaims. Nor does thegoverning regulationexplicitly grant superintendents  

                                                                                                                                                              

discretionary authority to review such claims.30  

                                                                                       



                              Having examined the notice given to prisoners of the need to exhaust issues  

                                                                                                                                                                                   



during the administrative appeal, the resources afforded them during the administrative  

                                                                                                                                                                



               28(...continued)  



                           

 1289, 1307 (1997).  



               29  

                                                                                                                                                                                       

                             Atl. Richfield Co. v. U.S. Dep't of Energy , 769 F.2d 771, 782 (D.C. Cir.  

 1984) (declining to requireexhaustion                                              ofadministrativeremedies);                                   seealso           Dubin,  supra  

                                                                                                                                                                                           

note 28, at 1330 n.198 ("[S]ome courts have crafted an exception to issue exhaustion in  

                                                                                                                                                                               

 situations where the 'issues involved were strictly legal and did not call for agency  

                                                    TEPHEN  G. B                REYER  & R               ICHARD  B. S               TEWART, A                DMINISTRATIVE  

expertise.' " (quoting S 

LAW AND REGULATORY POLICY:  PROBLEMS, TEXT, AND CASES   1130 (3d ed. 1992))).                                                                                              

                                                                                                                               



               30             Our  precedent  may  preclude  DOC from mandating  such  review.                                                                                         See  

                                                                                                                                                                                       

Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 36 (Alaska 2007); Dougan v.  

                                                                                                                                                                                            

Aurora Elec. Inc. , 50 P.3d 789, 795 n.27 (Alaska 2002) ("Administrative agencies have  

                                                                                                                                                                                     

no jurisdiction to decide issues of constitutional law such as a violation of one's right to  

                                                                                                                                                                                           

privacy.").  



                                                                                           -11-                                                                                     7237
  


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

appeal process, the regulation governing DOC intra-agency appeals, and the statute                                                                                  



governing appeals from final disciplinary decisions, we hold that prisoners who fail to                                                                                       



raise   their  constitutional   claims   during   the   administrative   appeal   process   do   not  



necessarily forfeit those claims.                                  We overrule                James  to the extent that it is inconsistent               

                                   31   In reaching this result, however, we take note of the fact that Walker  

with this holding.                                                                                                                                                 



brought his constitutional claim to  DOC's attention during the initial stages of the  

                                                                                                                                                                           



disciplinary process.  Walker requested the presence of three witnesses for his hearing;  

                                                                                                                                                                                   



the officer who presided over the disciplinary hearing denied (or at least failed to grant)  

                                                                                                                                                                     



that request.  Accordingly, we need not decide at this time whether issue exhaustion  

                                                                                                                                                           



applies to issues that a prisoner never brings to DOC's attention or that a prisoner  

                                                                                                                                                                



deliberately ignores.  

                          



                           We further note that our decision derives from a particularized analysis of  

                                                                                                                                                                             



prison disciplinary proceedings; it does not invalidate issue exhaustion requirements that  

                                                                                                                                                                          

                                                                                                                  32    We acknowledge that issue  

we have applied to other types of agency proceedings.                                                                                                                  

                                                                                        

                                                                                                                     33  - and that it would do so  

exhaustion generally furthers desirable policy objectives                                                                                                                    

                                                                                                 



here.  By (1) promulgating a regulation establishing an issue exhaustion requirement;  

                                                                                                                                                       



(2)  providing  prisoners  with  forms  explaining  that  requirement;  and  (3)  providing  

                                                                                                                                                             



prisoners with forms that enumerate prisoners' constitutional rights during disciplinary  

                                                                                                                                                          



hearings, DOC could alleviate the concerns that now preclude us from concluding that  

                                                                                                                                                                          



Walker's due process claims have been waived.  

                                                                                   



              31           See James v. State, Dep't of Corr.                                        , 260 P.3d 1046, 1050 n.12 (Alaska                          



2011);  cf. Engstrom v. Engstrom                                   , 350 P.3d 766, 771 (Alaska 2015).                         



              32           See, e.g., Thoeni v. Consumer Elec.Servs., 151 P.3d 1249, 1256-57(Alaska  

                                                                                                                                                                  

2007); Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996); Ratliff v. Alaska  

                                                                                                                                                                    

 Workers' Comp. Bd., 721 P.2d 1138, 1142 (Alaska 1986).  

                                                                                                           



              33           Dubin, supra note 28, at 1307.  

                                                                               



                                                                                    -12-                                                                               7237
  


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

               B.	            The Hearing Officer's Failure To Call Walker's Requested Witnesses                                                                        

                             Was A Prejudicial Violation Of Walker's Constitutional Rights.                                                                         



                             Having concluded that Walker has not waived his due process claim, we                                                                                       



must determine whether the hearing officer violated his due process rights and whether                                                                                        



                                                                                                                                34  

the violation prejudiced                                his  right to a fair adjudication.                                                                                             

                                                                                                                                       "Whether an inmate has  



                                                                                                                                                                                         

received procedural due process is an issue of constitutional law that we review de  



               35                                                                                                                                                             36  

                                                                                                                                                                                    

novo."               Whether a party has suffered prejudice is likewise reviewed de novo. 



                                                                                                                                                                              

                              "An  inmate  facing  a  major  disciplinary  hearing  is  entitled  to  call  



                                     37  

                                                                                                                                                                            

witnesses . . . ."                          Major disciplinary proceedings include those that could "subject  



                                                                                                                                                                       

inmates to  serious punishment such as solitary  confinement and loss of good  time  



                38                                                                                       39  

                                                                                                                                                                          

credit."              Walker was cited for two infractions,                                                  either of which could have subjected  



                                                                                                        40  

                                                                                                                                                                                        

him to punitive segregation or loss of good time.                                                             He thus had a due process right to call  



                                                      41  

                                     

witnesses in his defense. 



               34	           AS  33.30.295.  



               35            James,  260  P.3d  at  1050  (quoting  Brandon  v.  State,  Dep't  of  Corr.,  73  P.3d  



 1230,   1233  (Alaska  2003)).  



               36            Kodiak  Island  Borough  v.  Roe,  63  P.3d   1009,   1015  (Alaska  2003).  



               37            Abruska  v.  Dep't  of  Corr.,  State,  902  P.2d  319,  321-22  (Alaska   1995).  



               38            James,  260  P.3d  at   1052;  see  also  McGinnis  v.  Stevens,   543  P.2d 1221,  



 1237 (Alaska 1975)  ("We thus distinguish between those disciplinary proceedings which  

threaten  major  deprivations  of  a  prisoner's  limited  liberty  and  those  which  do  not.").  



               39            22 AAC 05.400(c)(5), (d)(4).  

                                                                                 



               40            22 AAC 05.470(a)(3), (5).  

                                                                                 



               41            Abruska , 902 P.2d at 322.  

                                                                              



                                                                                           -13-	                                                                                    7237
  


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

                       As we acknowledged in                      Abruska , the right to call witnesses is "subject to                              



                                   42  

certain limitations";                                                                                                                             

                                      DOC regulations provide that a hearing officer "may decline, for  



                                                                                                                                                   

compelling reasons, to call a witness that the accused prisoner . . . has requested to  

               43  However, the regulations also provide that:  

appear."                                                                                         



                       If the prisoner is found to have committed an infraction, the  

                                                                                                                           

                       hearing officer . . . shall file a report, to be attached to the  

                                                                                                                          

                       completed disciplinary tribunal report, listing all persons the  

                                                                                                                           

                       prisoner requested to appear but were not called to testify  

                                                                                                                     

                       . . . . This report must contain a brief statement of the reasons  

                                                                                                                   

                       why the persons were not called . . . .[44]  

                                                                                       



Here, although Walker was found to have committed an infraction, the hearing officer  

                                                  



did  not  attach  the  required  report  to  DOC's  disciplinary  decision  report.                                                     Because  

                                                                                                                                        



prisoners  facing  major  disciplinary  proceedings  are  entitled  to  call  witnesses,  and  

                                                                                                                                                



because we are unable to evaluate why DOC denied Walker's request to call witnesses,  

                                                                                                                                      



we conclude that the hearing  officer's  failure to  call Walker's requested  witnesses  

                                                                                                                                      



constituted a violation of his due process rights.  

                                                                         



                       We next consider whether the hearing officer's failure to call Walker's  

                                                                                                                                       



witnesses was prejudicial.  Prior to the disciplinary hearing, Walker told Baumgartner  

                                                               



that he had informed at least two officers about the payment mistake.  He repeated this  

                                                                                                                                                 



claim  in  his  testimony  at  the  disciplinary  hearing.                                     Baumgartner's  incident  report,  

                                                                                                                                           



however, stated that one of these officers had denied that Walker told him about being  

                                                                                                                                             



            42         Id.  at 321.   



            43  

                                                                                                                                                  

                       22 AAC 05.430(c) (2004); see also McGinnis, 543 P.2d at 1230 ("To the  

                                                                                                                                                   

extent  that  the  calling  of  witnesses  and  presentation  of  evidence  is  repetitious  or  

irrelevant, the chairman of the disciplinary committee is vested with the discretion under                                                    

                                                                                                                                 

the Division's regulations, to limit testimony and the production of other evidence.").  



            44         22 AAC 05.430(c).  

                                        



                                                                        -14-                                                                  7237
  


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

                                                                                                                                                      

overpaid.            Walker's  testimony  was  thus  contrary  to  the  incident  report.                                                   And  his  



                                                                                                                                                         

proposed witnesses could have helped resolve the factual dispute:  Walker intended to  



                                                                                                                                               

call both of the officers he claimed to have informed of the situation, as well as another  



                                                                                    

inmate who would have testified on the issue.  



                                                                                                                                                   

                        Duringthehearing, Baumgartner stated that Walker told an "untruth"when  



                                                                                                                                                      

he initially told her "that he [had] informed four different staff members" about the  



                                                                                                                                                     

overpayment issue but was subsequently "only [able to] identify two people."  She also  



                                                                                                                                             

stated that Walker told an untruth when he told her he had submitted multiple cop-outs  



                                                 

on the overpayment issue.  But it is not clear whether these purported untruths formed  



                                                                                                                                                     

the basis of the hearing officer's guilty finding; Officer Wright merely indicated that  



                                                                                                                                                     

"somewhere along the line, [Walker] omitted telling people that [he was] . . . getting paid  



                                                                                                                                           

for a job that [he was not] really doing."  Walker asserts that his requested witnesses  



                                                                                                                                                     

could  have  plausibly  testified  that  he  had  informed  DOC  employees  about  the  



                                                                                                                                                      

overpayment issue.  Accordingly, we conclude that the hearing officer's failure to call  



                                                   

the three witnesses was not harmless.  



IV.         CONCLUSION  



                        For  the  reasons  explained  above,  we  REVERSE  the  superior  court's  

                                                                                                                                               



decision affirming the decision of the Department of Corrections, and we instruct the                                                                 



superior court to REMAND the matter for a new disciplinary hearing.                                             



                                                                          -15-                                                                     7237
  

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