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Brandon v. Dept. of Corrections (12/17/93), 865 P 2d 87
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
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that corrections may be made prior to
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD BRANDON, )
) Supreme Court File No. S-5140
Appellant, ) Superior Court File No.
) 3AN-91-1464 Civil
DEPARTMENT OF CORRECTIONS, ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 4036 -- December 17, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Milton M. Souter, Judge.
Appearances: Richard Brandon pro per,
Seward, Alaska. John K. Bodick, Assistant
Attorney General, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
RABINOWITZ, Justice, with whom MATTHEWS,
Justice, joins, dissenting in part.
Richard Brandon was found guilty of violating prison
regulations at a Cook Inlet Pretrial Facility (CIPT)
disciplinary hearing. Brandon claims his right to due
process of law was violated in the disciplinary hearing
process. The superior court "denied"Brandon's appeal.
This appeal followed. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 1990, Correctional Officers Smith and
Adler were directed by their supervisor, Sergeant
Rodgers, to search Richard Brandon's room. The room
was a double occupancy room at CIPT shared by Brandon
and Jomar Bungay. As a result of the room search a
number of items were seized. Included in the items
seized were two bottles of what appeared to be "pruno"1
and a stolen radio. Brandon was charged with
violations of institutional rules 22 AAC 05.400(c)(9)
("alteration of food or drink"), 22 AAC 05.400(d)(7)
("possession of anything not authorized for retention
or receipt by the prisoner, and not issued through
regular facility channels"), and 22 AAC 05.400(d)(17)
("threatening damage to or theft of another's personal
property"). The disciplinary hearing was held
on January 9, 1991. Brandon was found guilty of
adulteration of food or drink and possession of
contraband. Brandon was found not guilty of
threatening damage to or theft of another's property.
Brandon was "assessed" fifteen days punitive
segregation and forfeited forty-five days of statutory
good time for the (c)(9) charge and five days of
punitive segregation for the (d)(7) charge, which were
to run concurrently.
Brandon's appeal to Superintendent Briggs was denied on
January 28, 1991. Brandon's appeal to the regional
director was denied on February 26, 1991. Brandon then
filed an appeal to the superior court. AS
22.10.020(d); Appellate Rule 602(a)(2). He moved to
stay execution of punishment pending the appeal. The
motion for a stay was denied on March 11, 1991.
Brandon served the sanction of fifteen days of punitive
segregation. Superior Court Judge Milton M. Souter
then "denied"Brandon's appeal and awarded the State
partial attorney's fees and costs in the amount of
II. STANDARD OF REVIEW
The question of whether Brandon received due process of
law in the disciplinary hearing is a question of law
which this court reviews de novo. See McGinnis v.
Stevens, 543 P.2d 1221, 1236 (Alaska 1975); see also
Department of Corrections v. Kraus, 759 P.2d 539, 540-
41 (Alaska 1988). Ordinarily, the grant or denial of a
preliminary injunction is a matter within the
discretion of the trial court, but an order granting or
denying a preliminary injunction is reviewable, as any
other conclusion of law, when it is based upon an
erroneous legal premise. Douglas v. Beneficial Fin.
Co. of Anchorage, 469 F.2d 453, 454 (9th Cir. 1972).
A. BRANDON'S RIGHT TO DUE PROCESS OF LAW WAS
VIOLATED IN THE DISCIPLINARY HEARING
In McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), we
examined the manner in which the United States Supreme Court
applied the due process clause of the Fourteenth
Amendment to prisoner disciplinary hearings in Wolff v.
McDonnell, 418 U.S. 539 (1974). We accepted the
analysis in Wolff and found that the due process
provisions of the Alaska Constitution apply to
prisoners. McGinnis, 543 P.2d at 1236. Like their
federal counterparts, state constitutional rights do
not entitle prisoners to the full panoply of rights
accorded in criminal proceedings. Id. Nonetheless the
rights are substantial.
Short of the full panoply of rights
accorded an accused in criminal proceedings,
the Supreme Court in Wolff held that when
major prison disciplinary proceedings are
instituted against a state inmate, the
following procedural safeguards are mandated
by the Due Process Clause: at least twenty-
four hours advance written notice of the
alleged violation; a written statement by the
factfinders as to the evidence relied on and
reasons for the disciplinary action;
permitting the inmate facing disciplinary
action to call witnesses and to present
documentary evidence in his defense when to
do so will not be unduly hazardous to
institutional safety or correctional goals; .
Id. at 1225 (footnotes omitted).
Brandon raises several claims that his right to due
process of law was violated in the disciplinary hearing
process. The State argues that each of Brandon's
claims were, at most, technical mistakes and not
violations of Brandon's right to due process.
1. Chain of Custody.
Brandon's first claim is that his right to due process
was violated because there was not an adequate chain of
custody document to authenticate the pruno. Brandon
claims that the chain of custody documentation was
deficient because Officer Adler wrote the disciplinary
report, while the Property Seizure Report indicates
that the pruno was found by Officer Smith. Brandon
asserts that the pruno should have been excluded from
evidence because its authenticity could not be
adequately established. The State argues in response
that both officers were in the room together and it
makes no difference which one actually wrote the
Brandon does not indicate how the question of who wrote
the report was in any way prejudicial to him or
violated due process. 22 AAC 05.610 provides:
Harmless error. Failure of a staff
member to follow the regulations set out in
this chapter does not invalidate a decision
absent a showing of prejudice by the
Technically, the officer who finds the alleged contraband is
required to write the disciplinary report. Department
of Corrections Policy and Procedures #809.03. However,
there is no suggestion that the alleged deficiency in
the report in any way prejudiced Brandon. Therefore,
since no prejudice to Brandon has been shown, we do not
find a due process violation.
2. Right to call Defense Witnesses.
Brandon claims that his right to due process was
violated because he was denied the right to call
Sergeant Rodgers as a witness. Sergeant Rodgers was
absent from the facility on the day of the hearing.
Brandon had requested that Rodgers testify at the
hearing, in accordance with 22 AAC 05.430.2 Brandon
requested Rodgers because Rodgers instigated and
ordered the search. Rodgers was standing outside the
door watching and supervising the search. Brandon
asserts that Rodgers would have testified where the
pruno was found. The exact location of the pruno is
important because Brandon shared the room with another
The State argues that Rodgers was not in the room and
the best evidence of the search was provided by the
officers who conducted the search, Alder and Smith.
The State asserts that Brandon is arguing another
procedural technicality which does not call into
question the merits of the hearing. We disagree.
The right to call witnesses and present evidence is
fundamental to a fair hearing and due process. In
McGinnis, we rejected the Supreme Court's balancing of
the needs of the prison with the right to call
witnesses adopted in Wolff. We reaffirmed the right to
call defense witnesses as fundamental to due process
under the Alaska Constitution.
We fail to see how the right to call
witnesses and present documentary evidence
will create discipline problems which
outweigh the fundamental value these rights
provide as vehicles for ascertaining the
truth. Absent a right to establish the most
basic elements of a defense through
presentation of evidence, a disciplinary
hearing cannot be characterized as fair in
the due process sense.
McGinnis, 543 P.2d at 1230.
The burden is on the hearing officer to state reasons
why the accused is not permitted to call the witness.
The chairperson of the disciplinary
committee may decline, for compelling
reasons, to call a witness . . . . The
chairperson's reason for declining to call a
witness or admitting evidence must be noted
orally for the record. . . . This report
must contain a brief statement of the reasons
why the persons were not called, or the
evidence was not admitted.
22 AAC 05.430(c). The reasons given by the chairperson of the
disciplinary hearing for refusing to allow Rodgers to
testify, that he was not present at the facility and
that he could not provide the best evidence of what
took place, are inadequate. We have stated that it is
the "exceptional case"where the chairman should refuse
to call a witness. McGinnis, 543 P.2d at 1230. The
failure of the committee to allow Rodgers' testimony
denied Brandon his right to due process of law.
3. Chemical testing of the Pruno.
Prior to the hearing, Brandon requested that the
alleged "pruno" be chemically tested. Brandon's
request was denied. Brandon asserts that he cannot be
found guilty of alteration of food or drink when there
is no evidence that the liquid contained any alcohol.
However, Brandon offered no evidence or testimony which
called into doubt that the liquid found had been
altered in an attempt to make pruno.
The State argues that no chemical test is required when
it is "readily apparent that the foodstuffs found had
been adulterated in an attempt to make pruno." The
State contends that the testimony of the officers
established by a preponderance of the evidence that the
drink was altered in an attempt to make pruno. Because
nothing presented called into question the observations
of the officers, we agree.
4. Findings of Fact.
Brandon claims that the hearing committee report is
inadequate because there are no findings of fact by the
disciplinary committee. The committee simply stated
that Brandon was found guilty. Brandon argues that
without any findings of fact he cannot know whose
testimony was believed and what evidence was relied on.
The State argues that the purpose of the findings is to
provide Brandon with enough information to advise him
of the reason for his guilt and allow Brandon to file
a meaningful appeal. It concludes that the report
satisfies these purposes.
Department of Corrections regulation 22 AAC 05.455
states that "the report may be considered as evidence
by the committee and alone may serve as the basis for a
decision." But, while the report is admissible
evidence and may alone provide the basis of the
committee's decision, the committee is not relieved of
the requirement to make specific findings of fact. 22
AAC 05.475 provides in part:
(a) If a prisoner is found guilty of an
infraction, the disciplinary committee shall
issue a written decision. The decision must
include the following:
(1) a summary of the statement of
the accused prisoner;
(2) a summary of the testimony of
(3) a statement of the committee's
adjudicative and dispositive decisions and
the reasons for those decisions, including a
statement of the evidence relied upon and the
specific facts found to support the
committee's decision; . . .
Without findings of fact it is difficult for an inmate
to know exactly what formed the basis for the
conviction, and to obtain meaningful review. In this
case it is clear that not everything in the reports was
true, otherwise Brandon would have been found guilty of
the stolen radio charge. Furthermore the reports list
"contraband" seized from Brandon including two large
paper bags of candy, two ballpoint pens, one roll of
tape, twelve AA batteries and three AAA Batteries.
There are no findings that these items in fact are all
"contraband." While the disciplinary committee may
rely on the reports, it is still the task of the
committee to be the finder of fact and determine which
facts found in the reports support violations of
regulations. Because we find Brandon's right to due
process was violated by the failure to allow his
defense witness, we need not decide if the lack of
findings of fact prejudiced Brandon so as to violate
his rights. We do note the failure of the disciplinary
committee to follow the express requirements of the
5. Deviation from Hearing Agenda.
Brandon argues that the hearing agenda requires that
witnesses be called and that he have a chance to
confront them after he pleads not guilty.3 In this
case, after Brandon's plea of not guilty the committee
chairman asked Brandon to present his version of
events. Brandon argues that this made him go first and
allowed the correctional officers the opportunity to
respond to Brandon's account.
The State argues that the variation in the hearing
agenda did not shift the burden of proof and did not
violate Brandon's right to due process. We agree.
However, we question the State's argument that because
the report had already been read into evidence, it
would have been a waste of time to have the witnesses
repeat the evidence already in the report. A mandatory
agenda is set out in the regulation.
B. THE INCIDENT REPORT CONCERNING THE RADIO DOES NOT
VIOLATE BRANDON'S RIGHT TO DUE PROCESS OF LAW
Brandon argues that because one incident report accuses
him of three violations, the portion of the report
which accuses him of stealing a radio will remain in
his institutional file even though he was found not
guilty. Brandon argues that this violates due process
as well as 22 AAC 05.465. The State argues that while
the incident report remains in Brandon's file, the
hearing committee's finding of not guilty will also.
The inclusion of the report thus will not harm Brandon.
Brandon has a right to have the information removed
from his file pursuant to 22 AAC 05.465.4 However,
because the file will also contain the finding of not
guilty, failure to remove the information does not
violate due process.5
C. THE SUPERIOR COURT'S DENIAL OF STAY WAS IMPROPER
Brandon argues that his punishment should have been
stayed pending his appeal pursuant to 22 AAC 05.480(i)
which provides that "[e]xecution of punishment must be
stayed pending an administrative appeal."6 Brandon
further argues that he was irreparably harmed by the
failure of the superior court to grant a stay. Brandon
has served the fifteen days of punitive seclusion;
nothing can be done to give him back that time.
The State argues that the automatic stay pending appeal
applies to administrative appeals only. Once Brandon
appealed to the superior court, the court was entitled
to determine that there was little likelihood of
success and deny the stay. The State argues that this
court should review the denial of the stay for an abuse
of discretion and affirm the superior court.
The State is correct that 22 AAC 05.480(i)7 only
requires the punishment to be stayed during the
administrative appeal and that the superior court may,
in its discretion, deny the stay. However, the court
must apply the proper standard in exercising its
discretion. Brandon made a showing that he would be
irreparably harmed if the stay was not granted. The
State's contention that Brandon was not entitled to a
stay because of little likelihood of success applies
the wrong standard to the grant or denial of this stay.
While the rule requiring a clear showing
of probable success applies in situations
where the party asking for relief does not
stand to suffer irreparable harm, or where
the party against whom the injunction is
sought will suffer injury if the injunction
is issued, a different rule applies where the
party seeking the injunction stands to suffer
irreparable harm and where, at the same time,
the opposing party can be protected from
A.J. Industries, Inc. v. Alaska Pub. Serv. Comm'n, 470 P.2d 537,
540 (Alaska 1970) (footnotes omitted). The superior
court should have applied the "balance of hardships"
approach as described in A.J. Industries. "The balance
of hardships is determined by weighing the harm that
will be suffered by the plaintiff if an injunction is
not granted, against the harm that will be imposed upon
the defendant by the granting of an injunction." Id.8
The denial of the stay was improper because the
superior court failed to apply the proper test.9
The failure of the disciplinary committee to allow
Brandon to call Sergeant Rodgers as a witness denied
Brandon his right to due process of law. Neither the
fact that the wrong officer signed the disciplinary
report nor the failure to test the pruno were errors.
Although the failure of the disciplinary committee to
make findings of fact, and its deviation from the
hearing agenda violated Department of Corrections
regulations, we decline to address whether either
failure denied Brandon due process of law. The failure
to remove reference to the radio in the incident report
did not violate Brandon's right to due process of law.
The denial of the stay, without balancing the harm to
Brandon, was improper. Because we partially reverse
the superior court, the award of attorney's fees is
AFFIRMED in part, REVERSED in part and REMANDED for
further proceedings consistent with this opinion.
RABINOWITZ, Justice, with whom MATTHEWS, Justice,
joins, dissenting in part.
I dissent from the court's holding that the superior
court erred in denying Brandon's application for stay
"because it failed to apply the proper test."10 In the
court's view the superior court should have employed a
"balance of hardships"approach and weighed the harm
that Brandon would suffer if a stay were not granted
against the harm that the correctional system would
suffer by the granting of a stay. The court relies
upon A.J. Industries, Inc. v. Alaska Public Service
Commission, 470 P.2d 537, 540 (Alaska 1970), for its
conclusion that the balance of hardships test is
Since our decision in A.J. Industries we have expressed
the balance of hardships approach as follows:
That standard [that the movant must show
only that there are serious and substantial
questions going to the merits of the case,
and that the movant need not show probable
success on the merits] applies only where the
injury which will result from the temporary
restraining order or the preliminary
injunction can be indemnified by a bond or
where it is relatively slight in comparison
to the injury which the person seeking the
injunction will suffer if the injunction is
not granted. Where the injury which will
result from the temporary restraining order
or the preliminary injunction is not
inconsiderable and may not be adequately
indemnified by a bond, a showing of probable
success on the merits is required before a
temporary restraining order or a preliminary
injunction can be issued.
State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 379 (Alaska
1991) (citations omitted); see also Olson Logging Co.
v. Lawson, 832 P.2d 174, 176 (Alaska 1992); Messerli v.
State, Dep't of Natural Resources, 768 P.2d 1112, 1122
(Alaska 1989), overruled on other grounds by Olson v.
State, Dep't of Natural Resources, 799 P.2d 289, 292-93
The state and the public have important interests in
effective prison discipline and effective management of
correctional facilities. It is apparent that delayed
imposition of prison discipline is generally not as
effective a deterrent as reasonably immediate
discipline. These considerations lead me to the
conclusion that a showing of probable success on the
merits should be required for court issued stays in
matters of prison discipline.11
1. "Pruno"is a term used to describe a crudely fermented
2. 22 AAC 05.430(a) reads:
The accused prisoner may present
witnesses and other evidence in his or her
defense, subject to (c) of this section, if
written notice of the witness to be called or
evidence to be admitted is given to the
disciplinary committee no later than 24 hours
before the hearing, unless good cause is
shown why this time requirement can not be
3. AAC 05.420 (b) reads:
The adjudicative phase of the
hearing must proceed as follows:
(1) The committee chairperson
shall call the meeting to order and, unless
the alleged violation is a minor infraction
under 22 AAC 05.400(e), ensure that the
proceedings are tape-recorded.
(2) The chairperson shall read the
disciplinary report to the prisoner.
(3) The chairperson shall request
the prisoner to admit or deny each of the
(4) If an admission is entered,
the dispositive phase under (c) of this
section may begin.
(5) If a denial is entered, the
following procedure applies:
(A) if the prisoner or the
disciplinary committee has requested the
appearance of the staff member who wrote the
disciplinary report, the staff member must be
called into the room and questioned under 22
AAC 05.435 and 22 AAC 05.455;
(B) if the disciplinary report has
noted the existence of witnesses or other
evidence relevant to the alleged infraction,
the chairperson may call the witnesses or
otherwise introduce the evidence;
(C) the accused prisoner or
advocate may present the prisoner's version
of events, call witnesses, and introduce
evidence under 22 AAC 05.430, 22 AAC 05.435,
and 22 AAC 05.455;
(D) when the accused prisoner is
finished presenting evidence, the prisoner
must be excused from the room and the
committee shall, by a preponderance of the
evidence, find whether the prisoner has
committed the infraction; the tape recorder
need not be operating during the
deliberations of the committee; and
(E) the prisoner must be called
back into the room and informed, on the
record, of the committee's decision.
4. 22 AAC 05.465(a) reads:
If the disciplinary committee finds that
the prisoner did not commit an infraction or
if a finding of guilt is reversed on appeal,
the disciplinary report and appurtenant
reports must be removed from the prisoner's
5. On remand, if Brandon is again convicted and
information concerning the stolen radio is part of
reports which are not to be removed from Brandon's
record, we see no reason why that portion of the report
which refers to the radio cannot be expunged by erasure
or redaction to comply with 22 AAC 05.465(a).
6. Neither party raised the issue, but because Brandon has
already served the seclusion time, the denial of the
stay is now moot. Normally this court will refrain
from deciding questions where events have rendered the
legal issues moot. Hayes v. Charney, 693 P.2d 831, 834
(Alaska 1985). However, "where the matter is one of
public concern and is recurrent but is capable of
evading review,"there is a public interest exception
to the mootness doctrine. Id. (quoting Doe v. State,
487 P.2d 47, 53 (Alaska 1971).
The public interest exception involves
the consideration of three main factors: 1)
whether the disputed issues are capable of
repetition, 2) whether the mootness doctrine,
if applied, may repeatedly circumvent review
of the issues and, 3) whether the issues
presented are so important to the public
interest as to justify overriding the
mootness doctrine. . . . Ultimately, the
determination whether to review a moot
question is left to the discretion of the
Id. (citations omitted). The denial or grant of a stay of
prisoner punishment is capable of repetition without
review. Because the punishment will often be completed
before review is granted, application of the mootness
doctrine may repeatedly circumvent review of the issue.
7. 22 AAC 05.480(i) reads:
Execution of punishment must be stayed
pending an administrative appeal, unless the
prisoner is scheduled to be released from
incarceration before the expiration of the
time periods allowed for appeal under this
8. Some jurisdictions apply the same balancing approach.
In Harris v. Commissioner of Correction, 567 N.E.2d
906, 908 (Mass. 1991), the grant of an injunction
stopping the transfer to federal prison was reversed
because the superior court did not balance the factors
to be considered before issuing a preliminary
injunction. A judge must balance the risk of
irreparable harm and the likelihood of success on the
merits against the risk of irreparable harm to the
opposing party. Id.
Other jurisdictions have limited the availability of
judicial intervention differently. In Oregon, courts
have jurisdiction to review all prison disciplinary
cases resulting in punishment of seven or more days of
isolation. ORS 421.195. The Oregon courts have
limited the availability of a stay of punishment by
requiring prisoners to show not only irreparable harm
but also likelihood of success on the merits. Evans v.
Oregon State Penitentiary, Corrections Div., 743 P.2d
168 (Or. App. 1987). Arizona has denied any judicial
review of prison disciplinary decisions partially
because jurisdiction would allow superior courts
discretion to stay disciplinary decisions. Rose v.
Arizona Dep't of Corrections, 804 P.2d 845, 849 (Ariz.
We have limited judicial intervention into prison
disciplinary decisions to cases concerning fundamental
constitutional rights. Department of Corrections v.
Kraus, 759 P.2d 539, 540 (Alaska 1988). Our decision
does not require a court to involve itself in the daily
affairs of prison administration to any greater degree
than courts are already involved in this limited way.
In addition, we find no reason to modify the judicial
powers available once jurisdiction is established.
9. Our dissenting colleagues conclude that punishment for
which there may be no basis in fact or law, and
therefore wrongful, is justified by the State's
interest in immediate discipline. This conclusion
appears to be based in part on their belief that the
State's interest cannot be adequately protected if a
prisoner's discipline is postponed. This is not
necessarily correct. Presumably the prisoner still
will be institutionalized following judicial review.
The State still will be able to effectuate the
prisoner's discipline if, indeed, it is factually and
legally supportable. In contrast, a prisoner's remedy
often cannot be adequately protected if a stay if
denied. If the punishment consists of no more than
forfeiture of good time, the forfeiture can be remedied
if the factual or legal basis for the punishment is
found wanting. However, if the punishment is isolation
or some other form of restriction on the prisoner's
activity, that cannot be restored.
10. I agree with the court's conclusion that 22 AAC
05.480(i) only requires the punishment to be stayed
during the administrative appeal. This regulation
refers only to administrative appeals to the
superintendent of the facility and the Department of
Corrections' regional director.
11. In Evans v. Oregon State Penitentiary, 743 P.2d 168 (Or.
App. 1987), the court concluded that it should not
become enmeshed in the day-to-day administration of
inmate discipline. Id. at 172. In my view this
concern identifies an additional reason for requiring
the movant to make a showing of probable success on the
merits before obtaining a stay of any disciplinary
measures imposed by correctional authorities.