Jensen v. Little

• Decision Date: 31 July 1990
• Docket Number: No. 900092,900092
• Citation: 459 N.W.2d 237
• Parties: Herbert O. JENSEN, Petitioner and Appellant, v. Elaine LITTLE, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 237

459 N.W.2d 237

Herbert O. JENSEN, Petitioner and Appellant, v. Elaine LITTLE, Respondent and Appellee.

Civ. No. 900092.

Supreme Court of North Dakota.

July 31, 1990.

Herbert O. Jensen, Bismarck, pro se.

Edwin F. Zuern, Asst. Atty. Gen., Bismarck, for respondent and appellee.

VANDE WALLE, Justice.

Herbert O. Jensen appealed an order of the district court which dismissed his appeal from a North Dakota State Penitentiary disciplinary proceeding. Jensen argues that the Penitentiary's revised drug-testing program and penalties were enacted in violation of the procedures of the Administrative Agencies Practice Act, NDCC ch. 28-32. We affirm.

Herbert Jensen is an inmate at the State Penitentiary. In 1988, the Penitentiary Inmate Handbook, which contains policies and procedures of the State Penitentiary, was adopted by Bob Coad, Acting Warden, and approved by Elaine Little, Director of Corrections and Chief Operations Officer for the Director of Institutions. See NDCC Sec. 12-47-12.

In an attempt to control the use of illegal drugs and other intoxicants, Warden Thomas Powers developed revised policies in June of 1989 which would increase the penalties that could be imposed by the Penitentiary's disciplinary committee for violation of rules prohibiting use of illegal drugs. While oral approval of the revised policy had been given by Director Little to Warden Powers immediately after its formulation, the Director of Institutions' approval stamp containing Little's signature was not formally placed on the policy until December of 1989. The policy increasing drug-use penalties was, however, actually posted in several areas of the Penitentiary in June of 1989, thereby giving notice to the inmates of the new penalty provisions.

Three months after the increased penalties had been posted, Jensen was randomly selected as part of the Penitentiary's drug-testing program. He declined to give a urine sample for the drug test. Jensen eventually appeared before a two-member disciplinary committee which found him guilty of refusing to submit to the drug-testing procedures. The committee gave Jensen the required penalty under the revised policy for his failure to submit to the drug test. Jensen's appeal of the disciplinary committee's action was denied by both Warden Powers and Director Little.

Jensen subsequently filed an appeal in the district court pursuant to the provisions of the Administrative Agencies Practice Act, NDCC ch. 28-32. Jensen contended that the Penitentiary's testing procedures and penalties were formulated in violation of the provisions of the Act. Director Little filed a motion to dismiss Jensen's appeal on the grounds that the district court lacked jurisdiction over the Department of Corrections and Director of Institutions under the Act. The district court granted the motion and Jensen appealed.

The Department of Corrections and Rehabilitation was created in the office of the Director of Institutions. NDCC Sec. 54-23.3-01. The Director of Institutions is excluded from the definition of an "administrative agency" and, therefore, is not subject to the provisions of the Administrative Agencies Practice Act. NDCC Sec. 28-32-01(1)(m). Furthermore, "[a] rule concerning only inmates of a correctional or detention facility" is not a rule subject to procedures of the Act. ¹ NDCC Sec. 28-32-01(6)(f). Accordingly, we believe the Penitentiary's disciplinary rules promulgated under the Director of Institutions are exempt from the procedures of the Administrative Agencies Practice Act. See, e.g., Varnson v. Satran, 368 N.W.2d 533, 537 n. 2 (N.D.1985) [under NDCC Sec. 28-32-01(1)(m), the Penitentiary Adjustment Committee is not governed by the provisions of the Administrative Agencies Practice Act]. Cf. Kirkeby v. Dept. of Corrections, 141 Mich.App. 148, 366 N.W.2d 28 (1985) [prison disciplinary directives which do not affect members of the general public are not subject to the Administrative Procedures Act]. The district court did not err in dismissing Jensen's appeal for lack of jurisdiction.

Apparently recognizing the possible jurisdictional problem, Jensen, in his appellate brief, requested this Court to exercise its powers of "original jurisdiction" and to decide his policy-formulation issue on its merits by holding that the Warden's revised policy was formally approved by Director Little after his testing and, hence, was void as to his disciplinary proceeding. Jensen's request does not meet the criteria established by this Court to exercise original jurisdiction [see State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979) ], nor do we consider the...