Appeal
from the Superior Court of the State of Alaska Nos.
3AN-15-05561/ 05563/05564 CI, Third Judicial District,
Anchorage, Kevin M. Saxby, Judge.
Jon
Buchholdt, Buchholdt Law Offices, Anchorage, for Appellant.
John
K. Bodick, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Maassen, Bolger, and Carney,
Justices. [Winfree, Justice, not participating.]
OPINION
STOWERS, CHIEF JUSTICE.
I.
INTRODUCTION
A
prisoner brings three appeals of prison disciplinary
proceedings for major infractions. The prisoner, representing
himself, originally appealed to the superintendent and
subsequently obtained counsel and appealed to the superior
court.
In
Wolff v. McDonnell, the United States Supreme Court
held that federal procedural due process requires "a
'written statement by the faultfinders as to the evidence
relied on and reasons' for the disciplinary
action."[1] In McGinnis v. Stevens, this
court held that due process under the Alaska Constitution
requires a "verbatim record of the [disciplinary]
proceedings."[2] The superior court concluded that the
incident reports and the audio recordings of the three
disciplinary hearings satisfied due process, and denied the
three appeals. The prisoner argues on appeal to us that the
McGinnis verbatim record requirement is in addition
to and not in place of the Wolff written statement
requirement. He also argues that the written disciplinary
decisions were inadequate and could not incorporate the
incident reports or be supplemented by the verbatim records
and that no showing of prejudice is required if the due
process requirement set forth in Wolff is not met.
We affirm the superior court's decisions.
II.
FACTS AND PROCEEDINGS
Matthew
Pease-Madore filed nearly a dozen administrative appeals of
prison disciplinary proceedings in the superior court; he
filed three appeals from the superior court's decisions
in this court. These three appeals have been consolidated and
are the subject of this opinion. The first of the three
appeals relates to a November 17, 2014 incident in which he
reportedly told an officer, "I'm not going to be in
jail forever and it is going to be very interesting when I
meet certain people on the streets." Pease-Madore was
charged with making "threats to another of future bodily
harm" in violation of 22 Alaska Administrative Code
(AAC) 05.400(d)(6) (2004).[3] At his December 3 disciplinary hearing
regarding this incident, [4] he pleaded not guilty and testified
that his statement "wasn't meant in a threatening
way." The officer testified that he "perceived it
as a threat" and that he "[stood] by his report as
it was written." Pease-Madore was found guilty and a
penalty of 20 days in punitive segregation was imposed. He
appealed to the superintendent, who denied the appeal.
The
second appeal relates to a November 19, 2014 incident in
which Pease-Madore reportedly yelled threats and taunts to
other prisoners, including graphic descriptions of rape. The
correctional officer's incident report noted that
"[t]his behavior and yelling . . . had been going on all
week" and Pease-Madore was charged with "[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 interferes with the orderly administration of the
facility" in violation of 22 AAC
05.400(c)(15).[5] At his December 3 disciplinary hearing
regarding this second incident, Pease-Madore pleaded not
guilty and argued that he was guilty of violating subsection
(d)(6), a lower-level infraction involving threats of future
harm, rather than (c)(15). He also argued that it would not
have been possible for the correctional officer to tell that
he was the one creating the disturbance, but the officer
testified that she recognized his voice and that she and
others saw and heard him. Pease-Madore was found guilty and
penalties of 40 days in punitive segregation and the loss of
180 days of good time were imposed. He appealed to the
superintendent, who granted partial relief, concurring with
the guilty finding and retaining the loss of 180 days of good
time but reducing the punitive segregation from 40 to 20
days.
The
third appeal relates to a November 20, 2014 incident in which
Pease-Madore reportedly told an officer, "You know
what's funny? You guys won't even know you are being
victimized until it's too late." Pease-Madore was
again charged with making threats to another of future bodily
harm in violation of 22 AAC 05.400(d)(6). At his December 3
disciplinary hearing regarding this third incident, he
pleaded not guilty and argued that his statement was not
threatening but funny. The correctional officer testified at
the hearing that he perceived it as a threat. Pease-Madore
was found guilty and penalties of 20 days in punitive
segregation and the loss of 90 days of good time were
imposed. He appealed to the superintendent, who granted
partial relief, concurring with the guilty finding but
reducing the penalties to 10 days in punitive segregation and
the loss of 45 days of good time.
Pease-Madore
subsequently obtained counsel and filed eleven administrative
appeals in superior court, arguing that his due process
rights had been violated. The superior court denied the three
appeals in this case[6] on the basis that the incident reports and
the audio recordings of the disciplinary hearings satisfied
due process. The court also found that he had shown no
prejudice. Pease-Madore appeals.
III.
STANDARD OF REVIEW
"Whether
an inmate has received procedural due process is an issue of
constitutional law that we review de
novo."[7] Whether a party has suffered prejudice is
likewise reviewed de novo.[8] And "[i]n an appeal from a
judgment of a superior court acting as an intermediate court
of appeal, " we review the agency decision de
novo.[9] "The interpretation of a statute [or
regulation] is a question of law to which we apply our
independent judgment, interpreting the statute [or
regulation] according to reason, practicality, and common
sense, considering the meaning of the statute's [or
regulation's] language, its legislative history, and its
purpose."[10] "We review de novo whether a party
has waived a claim on appeal."[11]
IV.
DISCUSSION
A.
An Audio Recording Of A Disciplinary Hearing Satisfies
Wolff's Requirement For A Written
Statement.
In
Wolff v. McDonnell, an action brought by inmates
against a state prison alleging that the prison's
disciplinary proceedings did not comply with the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution, the United States Supreme Court held that
procedural due process requires "a 'written
statement by the faultfinders as to the evidence relied on
and reasons' for the disciplinary
action."[12] The Court identified three bases for its
written statement requirement: (1) "[w]ritten records of
proceedings will. . . protect the inmate against collateral
consequences based on a misunderstanding of the nature of the
original proceeding"; (2) "the provision for a
written record helps to [e]nsure that administrators, faced
with possible scrutiny by state officials and the public, and
perhaps even the courts, where fundamental constitutional
rights may have been abridged, will act fairly"; and (3)
"[w]ithout written records, the inmate will be at a
severe disadvantage in propounding his own cause to or
defending himself from others."[13] In McGinnis v.
Stevens, we identified three bases for the verbatim
record requirement under the Alaska Constitution: (1) "a
verbatim record will help [e]nsure that administrators faced
with possible scrutiny by state officials and the public, and
even the courts when it is asserted that fundamental
constitutional rights may have been abridged, will act
fairly"; (2) "[a] verbatim record of the
proceedings will furnish a more complete and accurate source
of information than the 'written statement'
requirement of Wolff; and (3) a verbatim record
"will assist in facilitating a more intelligent review
of the disciplinary proceeding."[14]
Pease-Madore
argues that the requirement of a verbatim record of the
proceedings under McGinnis does not satisfy
Wolff but rather is an additional
requirement under the Alaska Constitution[15] and that
"the written statement and the verbatim record serve
separate purposes and actually preserve separate phases of
the disciplinary proceedings." Specifically, he argues
that the Supreme Court's concern about protecting the
inmate against consequences from misunderstanding the
original proceeding is not mentioned in McGinnis; he
also argues that because McGinnis explained that the
verbatim recording furnished a more accurate source of
information and facilitated a more intelligent review of the
proceedings, the verbatim record requirement must have been
in addition to rather than in place of the written statement
requirement. He asserts that the Wolff written
statement requirement memorializes "the evidence relied
upon and the reasons for the decision" whereas the
McGinnis verbatim record requirement memorializes
the proceeding itself, except for the part where the evidence
and reasons for the decision are discussed.[16]
Pease-Madore's
argument that the McGinnis verbatim record
requirement is an additional requirement under the Alaska
Constitution is not correct. Our language setting forth the
verbatim record requirement in McGinnis clearly
reflects our understanding that the verbatim record
...