Brandon v. Department of Corrections
| Decision Date | 17 December 1993 |
| Docket Number | No. S-5140,S-5140 |
| Citation | 865 P.2d 87 |
| Parties | Richard BRANDON, Appellant, v. DEPARTMENT OF CORRECTIONS, State of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Richard Brandon, in pro. per.
John K. Bodick, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
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.
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) (), 22 AAC 05.400(d)(7) (), and 22 AAC 05.400(d)(17) ().
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 $293.72.
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).
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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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.
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 report.
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 prisoner.
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.
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 inmate.
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.
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.
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.
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...
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