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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Huber v. State, Dept. of Corrections (8/31/2018) sp-7284

Huber v. State, Dept. of Corrections (8/31/2018) sp-7284

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        

BOB  HUBER,                                                            )  

                                                                       )     Supreme  Court  No.  S-16190  

                                 Appellant,                            )  


                                                                       )     Superior Court No. 3PA-15-01336 CI  

           v.                                                          )  


                                                                       )    O P I N I O N  


STATE OF ALASKA, DEPARTMENT                                            )



OF CORRECTIONS,                                                        )    No. 7284 - August 31, 2018


                                 Appellee.                             )  




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


                      Judicial District, Palmer, Gregory Heath, Judge.  


                      Appearances:   Jon Buchholdt, Buchholdt Law Office, and  


                      Christopher V. Hoke, Hoke Law, Anchorage, for Appellant.  


                      John K. Bodick and Matthias R. Cicotte, Assistant Attorneys  


                      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.  

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


                    Federal law requires that a prison disciplinary decision must include a  


written statement of the evidence relied on and the reasons for the decision. In this case,  


the superior court affirmed a decision finding a prisoner "guilty" without any further  


explanation.          The  court  reasoned  that  the  prisoner  was  not  prejudiced  because  the  


disciplinary hearing was recorded, and the prisoner was able to adequately explain his  


version of the evidence in his appeal.   But we conclude that the written disciplinary  


decision or the audio recording must ordinarily include a specific statement satisfying  


federal law:  a mere finding of "guilty" is generally insufficient.  We therefore reverse  


the superior court's decision affirming the decision of the Department of Corrections.  




                    Bob Huber, a former prisoner at Goose Creek Correctional Center, was  


involved in an incident in the prison dining hall on October 11, 2014.   The incident  


report  states  that  Huber  stared  at  a  correctional  officer  in  an  intimidating  manner,  


dropped food on the floor, yelled profanity at the officer, and refused to provide his  


inmate number when asked. The officer cited himunder 22 Alaska Administrative Code  


(AAC)  05.400(c)(15),  which  prohibits  prisoners  from  "[e]ngaging  in  a  group  or  


individual demonstration or activity that involves throwing of objects, loud yelling, loud  


verbal confrontation, or pushing, shoving, or other physical contact that disrupts or  


interferes with the orderly administration of the facility."1  


                    A disciplinary hearing was held on October 21. At the hearing, the hearing  


officer read the correctional officer's description of the incident aloud and asked Huber  


how he would like to plead.  Huber pleaded not guilty.  He testified that the incident  




                    Violating            this       provision           is      a     high-moderate                infraction.  


22 AAC 05.400(c)(15) (2018).  

                                                                -2-                                                             7284  

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

report misrepresented what had occurred and that he had been attempting to defend an                                                                                                                                                                                                                                          

inmate who was being treated unfairly.                                                                                                                     After Huber finished testifying, the hearing                                                                                                  

officer stated that she was "going to find [Huber] guilty."                                                                                                                                                                 She then imposed a penalty  

of 15 days of punitive segregation.                                                                                                   Following the hearing, the hearing officer issued a                                                                                                                                          

written disciplinary decision on the standard decision form. The decision form includes                                                                                                                                                                                                                 

a section for enumerating the "reasons, evidence considered and specific facts" upon                                                                                                                                                                                                                               

which a guilty finding is based.                                                                                         The hearing officer left this portion of the form blank.                                                                                                                                                          

                                                   Huber   appealed   the   decision   to   the   superintendent   of   Goose   Creek  

Correctional Center, explaining his version of events and arguing that the cited offense                                                                                                                                                                                                                   

in the correctional officer's original incident report had not been properly filled out. The                                                                                                                                                                                                                            

 superintendent affirmed the guilty finding and the penalty.                                                                                                                                                                    

                                                   Huber appealed to the superior court, raising the issue of a due process                                                                                                                                                                               

violation   for   the   first   time.     Huber   noted   that   Department   of   Corrections  (DOC)  

regulations require a written disciplinary decision to include "a statement of the evidence                                                                                                                                                                                                           


relied upon and the specific facts found to support the disciplinary tribunal's decision."                                                                                                                                                                                                                                                 

He further argued that a hearing officer's failure to include this information in the report  


made it impossible for the superintendent to conduct meaningful review of the officer's  


findings. Accordingly, he concluded that the hearing officer's decision violated his right  


to due process.3                                                 The State countered that Huber had waived his due process argument  


by failing to assert it in his appeal to the superintendent.  It further argued that even if  


                         2                         22 AAC 05.475(a)(3);                                                                see also Pease-Madore v. State, Dep't of Corr.                                                                                                                                , 414   

P.3d 671, 678 (Alaska 2018);                                                                                  Brandon v. Dep't of Corr.                                                                         , 865 P.2d 87, 91 (Alaska 1993).                                                               

                         3                         In his points on appeal in the superior court, Huber also alleged that the  


hearing officer relied on inadmissible evidence to reach the adjudicative decision.  But  


his brief before the superior court did not address this issue, and Huber does not raise it  


on appeal.  


                                                                                                                                                               -3-                                                                                                                                                   7284

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

Huber's due process claim was preserved, he had failed to demonstrate that the lack of                                                                                         

written   findings   had   prejudiced   his   ability   to   defend   himself   during   the   prison  

disciplinary process.                      4  


                            The  superior  court  affirmed  the  disciplinary  decision.                                                           The  court  first  


concluded that Huber had forfeited his due process argument by failing to raise the issue  


during the disciplinary appeal process. The court further held that even if Huber had not  


forfeited the issue, he had failed to show that he had been prejudiced as a result of the  


lack of written findings.  Huber appeals.  

III.	         DISCUSSION  


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


                            During The Administrative Appeal.  


                            Thesuperiorcourtconcludedthat"[b]ecauseHuber's dueprocessargument  


was not raised during the administrative proceedings below, it is waived on appeal."  


Huber  responds  that  he  did  not  need  to  explicitly  raise  this  issue  during  the  


administrative appeal process in order to preserve it.  "We review de novo whether a  



party has waived a claim on appeal." 


                            We  recently   addressed  the  effect  of  a  prisoner's  failure  to  raise  


constitutional claims during the DOC disciplinary appeals process in  Walker v. State,  



Department of Corrections .  The appellant in Walker argued that DOC violated his right  

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

superior court of a final disciplinary decision by the [DOC] only if the prisoner alleges                                                                            

specific facts establishing a violation of the prisoner's fundamental constitutional rights                                                                             

that prejudiced the prisoner's right to a fair adjudication.").                            

              5             Pease-Madore, 414 P.3d at 674 (quoting Sellers v. Kurdilla, 377 P.3d 1,  


 13 (Alaska 2016)).  


              6             421 P.3d 74 (Alaska 2018).  


                                                                                       -4-	                                                                              7284

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


to due process by refusing to allow him to call witnesses during a disciplinary hearing.                                                                             


The superior court concluded that the appellant had waived this argument by failing to  

                                                                   8  We reversed this decision and concluded that the  



raise it in his administrative appeal. 

                                                                              9   We first noted that no statute or regulation  

appellant had not forfeited this argument.                                                                                                 


mandates issue exhaustion in Alaska.10                                     Then we concluded that several characteristics  


of the prison disciplinary process counseled against imposing a judicially created issue  


exhaustion requirement for disciplinary appeals.11  Accordingly, we held that "prisoners  


who fail to raise their constitutional claims during the administrative appeal process do  


not necessarily forfeit those claims."12  


                         Theforfeitureissuein Huber's appeal is not meaningfully distinct fromthat  


in Walker. Like the appellant in Walker, there is no evidence that Huber received notice  


that failure to raise an issue during the administrative appeal process would result in  


forfeiture.13   And Huber was similarly required to file his administrative appeal "within  


three working days of receipt of the written disciplinary decision," and prepared his  


                                                            14    Finally, prison superintendents possess no "special  

appeal without legal assistance.                                                                                                                    


             7           Id.  at 78.

             8           Id.

             9           Id.  at 82, 83.

             10          Id.  at 79.

             11          Id.  at 79-81.



                         Id. at 81.  

             13          Id.  at 79-80.           DOC regulations do not provide such notice.                                             See  22 AAC   


             14          See Walker, 421 P.3d at 80; see also 22 AAC 05.480(b) (establishing time  



                                                                               -5-                                                                       7284

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


expertise   to  address   [the]   constitutional   claim[]"   that   Huber   raises   on   appeal.                                                                   


Accordingly, we conclude that Huber did not forfeit his due process claim by failing to  



raise it during the disciplinary appeals process. 


             B.	         The  Hearing  Officer's  Failure  To  Provide  A  Statement  Of  The  


                         Reasons For The Decision Or The Evidence Supporting It Was A  


                         Violation Of Huber's Right To Due Process.  


                         In  Wolff   v.   McDonnell,   the   United   States   Supreme   Court   held   that   due  

process requires factfinders in a prison disciplinary proceeding to produce "a 'written                                                             

statement . . . as to the evidence relied on and reasons' for the disciplinary action."                                                                   17  


year  after    Wolff,   we   accordingly   stated   in   McGinnis   v.   Stevens   that   the   Alaska  

Constitution entitles prisoners "to all due process rights enunciated in                                                          Wolff," including   

                                                                  18    And we went further and held that the Alaska  

the written statement requirement.                                                                                                                   

Constitution provides greater due process protections than the U.S. Constitution.   It  


entitles a prisoner not simply to a written summary statement, but "to have the entire  


hearing recorded for purposes of administrative appeal and potential further appeal to  


             14          (...continued)  


limit for filing appeal).  

             15	          Walker, 421 P.3d at 80.  


             16          We also note that Huber could not have raised the due process concern  


during the disciplinary hearing since his concern stems from the result of that hearing.  


See id. at 12 ("[W]e take note of the fact that Walker brought his constitutional claim to  


DOC's attention during the initial stages of the disciplinary process.").  


             17          418 U.S. 539, 564 (1974) (quoting Morrissey v. Brewer, 408 U.S. 471, 489  



             18          543 P.2d 1221, 1236 (Alaska 1975).  


                                                                               -6-	                                                                      7284

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

the superior court."               19  


                        Huber  first  contends  that  simply  providing  a  verbatim  record  of  his  


disciplinary proceeding misconstrues our holding in McGinnis  and cannot satisfy the  


 Wolff written statement requirement. However, we recently rejected this same argument  

                                                                                              20  In that case, a prisoner appealed  


in Pease-Madore v. State, Department of Corrections.  

from three disciplinary decisions in which the hearing officer did not produce a  Wolff  


written statement.21                   We concluded that the McGinnis  verbatim record requirement  


"serve[s] the same purposes as the [Wolff] written statement," and in fact "may furnish  


a more inclusive record of the proceedings" than a written statement.22   Accordingly, we  


held that an audio recording of a disciplinary hearing can satisfy Wolff's requirement for  


a written statement.23  


                        But we also  noted that,  although  an  audio  recording  of  a  disciplinary  


proceeding  may  satisfy  the  Wolff requirement,  it  will  not  necessarily  do  so.24                                                           We  


reasoned that a verbatim record "fulfills th[e] purpose" of the Wolff requirement "if the  


recording includes information about the evidence relied on and the reasons for the  


            19         Id.   (emphasis added);                   see also Pease-Madore v. State, Dep't of Corr.                                         ,  

414 P.3d 671, 673 (Alaska 2018) ("In                                  McGinnis . . .             this court held that due process            

under   the   Alaska   Constitution   requires   a   'verbatim   record   of   the   [disciplinary]  

proceedings.' " (alteration in original) (quoting                                    McGinnis, 543 P.2d at 1236)).             

            20          414 P.3d at 675.  


            21         Id. at 673-74.  


            22         Id. at 676.  


            23         Id. at 675-77.  


            24         Id. at 676-77.  


                                                                          -7-                                                                    7284

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


decision."            However, we also stated that, "[i]f the evidence relied on and reasons for the                                               

disciplinary action are not identified in the recording, then there is indeed a qualitative                                           

difference   between   the   information   made   available   through   a   written   statement   as  

                                           26   We concluded that the audio recordings of the proceedings  

opposed to a recording."                                                                                                           

at issue provided sufficient information to satisfy the  Wolff requirement only when  


considered in conjunction with the hearing officers' written reports.27                                                      Pease-Madore  


thus establishes that it is the substance of the explanation that matters, rather than the  


manner in which it is preserved.  In other words, a prisoner's right to due process is  


satisfied when the written disciplinary decision, audio recording, or both in conjunction  


satisfy the  Wolff requirement - that is, when they provide "information about the  


evidence relied on and the reasons for the decision."28  


                       Huber next contends that the hearing officer's decision in his disciplinary  


hearing did not satisfy the  Wolff requirement, and thereby violated his right to due  


process.          "Whether  an  inmate  has  received  procedural  due  process  is  an  issue  of  



constitutional law that we review de novo."                                       


            25         Id.  at  676.  

            26         Id.  

            27         See  id.  at  677-78.  

            28         Id.  at  676.  

            29         Id.  at   674  (quoting  James  v.  State,  Dep't  of   Corr.,  260  P.3d   1046,   1050  

(Alaska  2011)).  

                                                                         -8-                                                                   7284

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

                             "One question left open by the                                          Wolff   decision is how specific a                                        Wolff  


statement should be."                                                                                                                                                                   

                                                       In Pease-Madore, we concluded that verbatim records of a  


proceedingcoupledwithdisciplinarydecisions that incorporateddetailedincident reports  

                                                                    31  Thus, in at least some instances, it is sufficient for a  



satisfied the Wolff requirement. 

hearing officer to simply identify the evidence supporting a decision.32  


                             In contrast to the disciplinary decisions at issue in Pease-Madore, the  


record ofHuber'sdisciplinary decision containsnoinformationabout theevidencerelied  


on or the reasons for the hearing officer's decision.   At the disciplinary hearing, the  


hearing officer simply heard Huber's testimony and stated that she was "going to find  


 [Huber]  guilty"  without  explaining  the  basis  for  her  decision.                                                                               And  the  written  


disciplinary decision similarly indicates that Huber is "guilty" without providing further  


               30            Michael   A.   Guzzo,   The   Written   Statement   Requirement   of   Wolff   v.  

McDonnell: An Argument for Factual Specificity                                                              , 55 F       ORDHAM L. R                   EV. 943, 948-49      

(1987);  see also                  2 M      ICHAEL  B. M               USHLIN, R             IGHTS OF            PRISONERS   10:49, at 586 (5th ed.                                 

2017) ("In general, beyond its statement regarding situation[s] involving personal or                                                                                                 

institutional safety, the Supreme Court has not specified the contents of the required                                                                                   

record other than that it should include the evidence relied on and the reasons for the                                                                                              

disciplinary action.").   

               31            Pease-Madore, 414 P.3d at 677-78; see id. at 677 ("All three disciplinary  


decisions  include  the  phrase  'WOR  as  written,'  which  appears  to  denote  the  


incorporation of and agreement with the incident reports."); see also DeRemer v. State  


Dep't of Corr., No. S-16194, 2018 WL 2077847, at *3 (Alaska May 2, 2018) ("Here, the  


disciplinary decision stated that DeRemer's conviction was based on 'thedocumentation  


of the written report.'").  


               32            Several courts have reached similar conclusions.   See, e.g.,  Culbert   v.  


 Young, 834 F.2d 624, 631 (7th Cir. 1987);                                                  Brown v. Frey                  ,  807 F.2d 1407, 1412 (8th Cir.                        


                However, other courts have interpreted                                               Wolff  to require specific written findings                          

resolving any factual disputes.                                     See, e.g.,  Thompson v. Lane                                 , 551 N.E.2d 731, 736 (Ill.  

                           State ex rel. Meeks v. Gagnon                                  ,  289 N.W.2d 357, 363 (Wis. App. 1980).                                                 See  

App. 1990);  

generally  Guzzo,  supra  note 30, at 943 n.6 (listing cases).                                                 

                                                                                           -9-                                                                                  7284

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

elaboration. The written decision form also fails to include any language "incorporating                                                     


and agreeing with the incident report,"                                                                                                                  

                                                                             and the space on the formfor "reasons, evidence  


considered, and specific facts upon which [the] finding is based" was not filled out.  


                          In Saenzv. Young, theSeventhCircuitconsidered adisciplinaryproceeding  

                                                                                                                     34     The court stated that a  


in which a prisoner was found guilty of attempted battery. 

disciplinary decision without specific findings of fact may, in some instances, satisfy the  


 Wolff  statement  requirement.35                                    However,  the  Saenz  court  also  cautioned  that  


"[o]rdinarily  a  mere  conclusion  that  the  prisoner  is  guilty  will  not  satisfy  this  


requirement."36                  We agree.   There may be some very simple proceedings in which a  


guilty verdict alone would suffice to satisfy the  Wolff statement requirement.37                                                                            But in  


                               the absence of any information regarding the basis for a hearing officer's                                                 

most instances,  



decision will make it difficult for a prisoner to obtain meaningful review on appeal.                                                                                      


Although it might be possible to infer a hearing officer's reasoning process where the  


charge and evidence are straightforward, there is always a possibility  that the officer  

             33           See  Pease-Madore,  414  P.3d  at  678.  

             34           811  F.2d   1172,   1173  (7th  Cir.   1987).  

             35           See  id.  at   1174.  

             36           Id.  

             37           Cf.  Dyson  v.  Kocik,  689  F.2d  466,  468  (3d  Cir.  1982)  (concluding  that  if  the  

charge   addressed  in   a  disciplinary  decision  were   simpler,  "the  generalized   finding   of  

'guilty   of   misconduct   as   written'   would   have   met   the   minimum   requirements   of  

procedural  due  process").  

             38           See  Saenz,  811  F.2d  at  1174  ("Where the  charge  is  complex  and  the  


[disciplinarytribunal] fails to explain its findings, the reviewing court will find it difficult  


and maybe impossible to determine whether the [tribunal] on the one hand found facts  



showing that the prisoner really was guilty of the charge, or on the other hand based the  


finding of guilt on erroneous legal premises.").  


                                                                                 -10-                                                                           7284

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


misunderstood   the   elements   of   a   charge.                                                                   And   there   is   little   cost   associated   with  

requiring a hearing officer to identify what evidence is relevant, even when the answer                                                                                                                    


seems obvious.                                                                                                                                                                                       

                                             Where charges and evidence are straightforward, preparing a sufficient  


 Wolff statement should not be unduly burdensome.  

                                  Here, we hold that the hearing officer's bare conclusion that Huber was                                                                                                          

guilty does not satisfy the                                         Wolff  statement requirement.                                               Without any statement of the                                          

reasons for the decision or the supporting evidence, it is impossible for a reviewing body                                                                                                                       


to determine whether the hearing officer correctly applied the regulation at issue.                                                                                                                                             

Furthermore, it is not clear whether the hearing officer based her guilty verdict on the  


incident report, Huber's testimony, or a combination of the two.42  Accordingly, we hold  


that Huber's right to due process was not satisfied by the disciplinary decision and audio  



                                  Lastly, we note that DOC regulations require a disciplinary decision to  


include "a statement of the disciplinary tribunal's adjudicative and dispositive decisions  


                 39               See Thompson v. Lane                                     , 551 N.E.2d 731, 737 (Ill. App. 1990) (holding that                                                                     

"a statement of reasons should be sufficient to enable a reviewing body to determine                                                                                                               

whether [punishment has been imposed] for an impermissible reason or for no reason at                                                                                                                                    


                 40               Cf. Wolff v. McDonnell, 418 U.S. 539, 565 (1974) ("[W]e perceive no  


conceivable rehabilitative objective or prospect of prison disruption that can flow from  


the requirement of these statements.").  


                 41               See 22 AAC 05.400(c)(15).  The incident report indicated that Huber had  


violated  the  regulation  by  engaging  in  a  "demonstration  or  activity  that  involves  


throwing of objects."  The disciplinary decision did not explain how he had violated the  




                 42               Cf.  Saenz,  811  F.2d  at  1174  (characterizing  a  disciplinary  tribunal's  


statement that its decision was "based on all evidence" or "all evidence presented" as  


"the antithesis of specifying the evidence relied on").  


                                                                                                          -11-                                                                                                   7284

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

and the reasons for those decisions, including a                               statement of the evidence relied upon and                        

the specific facts found to support the disciplinary tribunal's decision."                                                 43         

                                                                                                                                At this time,  


we do not hold that a hearing officer's failure to follow this regulation necessarily  

                                                           44  We nevertheless expect that DOC will comply with  



constitutes a due process violation. 

its regulations in the future.  


            C.         The Violation Of Huber's Right To Due Process Was Prejudicial.  


                       In  order  to  reverse  a  disciplinary  decision,  we  must  find  both  that  a  


constitutional right was violated and that the violation prejudiced the inmate's right to  


a fair adjudication.45                                                                                                                       46  


                                     Whether a party has suffered prejudice is reviewed de novo. 


                       Huber first argues that he need not show that his right to a fair adjudication  


was prejudiced.  But we recently considered a similar argument in Pease-Madore, and  


concluded that it is irreconcilable with both our precedent and the statute governing  



disciplinary appeals. 

                       Huber  also  argues  that  he  nevertheless  demonstrated  prejudice.                                                    He  


contends that "if the record is insufficient . . . then it would have been impossible for the  


Superintendent to determine that the findings supported the decisions reached."  


                       In the absence of any statement of reasons for a disciplinary decision or any  


indication of the evidence supporting it, Huber could not know which evidence "formed  


the basis of the hearing officer's guilty finding" or whether the hearing officer correctly  


            43         22 AAC 05.475(a)(3).

            44         See Pease-Madore v. State, Dep't of Corr., 414 P.3d 671, 678 (Alaska



            45         AS 33.30.295(b)(1).  


            46         Pease-Madore, 414 P.3d at 674.  


            47         Id. at 678; see also AS 33.30.295(b).  


                                                                       -12-                                                                  7284

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


applied the regulation at issue.                                                                            This precludes meaningful review of the hearing                                                                                         

officer's decision.                                         Accordingly, we conclude that the absence of a                                                                                                                Wolff   statement  

prejudiced Huber's right to a fair adjudication.                                                         

IV.                  CONCLUSION  

                                         We REVERSE the superior court's decision affirming the decision of the  


Department of Corrections.  DOC may elect to hold a new hearing.  Alternatively, the  


DOC hearing officer may amend the decision to comply with the requirements set out  


in this opinion.  


                     48                   Walker v. State, Dep't of Corr.                                                             , 421 P.3d 74, 82 (Alaska 2018);                                                                  cf. Brandon   

v.  Dep't of Corr.                                   , 865 P.2d 87, 91 (Alaska 1993) (noting that a disciplinary tribunal's                                                                                                                   

failure to prepare written findings makes it "difficult for an inmate to know exactly what                                                                                                                                                                    

formed the basis for the conviction, and to obtain meaningful review").                                                                                                                         

                                                                                                                                -13-                                                                                                                         7284

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