Appeal
from the Superior Court No. 3PA-14-02547 CI of the State of
Alaska, Third Judicial District, Palmer, Eric Smith, Judge.
Appearances:
Scott
Walker, pro se, Wasilla, Appellant. [*]
Matthias Cicotte, Assistant Attorney 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.]
OPINION
BOLGER, Justice.
I.
INTRODUCTION
The
Alaska Department of Corrections (DOC) found an inmate guilty
of making a false statement to a staff member about work he
was supposed to be doing and ordered the inmate to pay in
restitution half the amount of his wages for that work. The
inmate appeals, arguing that DOC violated his due process
rights by refusing to allow him to call witnesses at his
disciplinary hearing. We conclude that Walker did not waive
his due process claim by failing to raise it during the
administrative appeal process. We also recognize that
prisoners have a constitutional right to call witnesses at a
disciplinary hearing and that the hearing officer's
failure to call Walker's requested witnesses was
prejudicial. We thus reverse the disciplinary decision and
remand for a new hearing.
II.
FACTS AND PROCEEDINGS
Inmate
Scott Walker started work in October 2013 as an Orientation
Assistant in the Special Management Unit at Goose Creek
Correctional Center. Walker wrote up an outline of topics he
thought should be covered at orientation for new inmates and
awaited further instructions.
In
August 2014, Criminal Justice Technician Brooke Baumgartner
met with Walker to discuss his job. She learned during the
meeting that, although Walker had continued to be paid, he
had not actively worked since November 2013. According to
Baumgartner, Walker admitted to "taking advantage of the
situation." He told her that he had attempted to inform
four different staff members about the payroll mistake, but
when pressed he could only name two officers. Walker also
said he had "sent cop-outs"[1] regarding the situation.
Baumgartner contacted both of the officers Walker had named,
and one stated that Walker had never informed her of the
mistake. She also found that Walker's file did not
contain any pertinent cop-outs. Baumgartner calculated that
Walker had been overpaid by $633.50.
Based
on this information, DOC charged Walker with the infractions
of "stealing, destroying, altering or damaging
government property" and "lying or providing a
false statement to a staff member."[2] After receiving
notice of a scheduled disciplinary hearing, Walker timely
requested the presence of three witnesses: the two officers
he claimed to have informed of the overpayment issue and an
inmate working as a Job Services Clerk who also claimed to
have reported Walker's overpayment issue to one of the
officers. According to Walker, Officer Wright, [3] who presided over
the disciplinary hearing, denied the request off the record
and without explanation.
At the
disciplinary hearing, Walker testified that he "never
made a false statement to anyone" and denied telling
Baumgartner that he had "tak[en] advantage of the
situation." He stated that originals of cop-outs are not
kept in an inmate's file, which could explain why
Baumgartner did not find any record of the cop-outs he
claimed to have sent. Walker's testimony was often
interrupted by Officer Wright, who twice shut off the
recorder and, according to Walker, used
"intimidation" to influence Walker's testimony.
Baumgartner
also testified at the hearing, and Walker cross-examined her.
When asked by Walker to identify the "untruth" he
had told her, Baumgartner responded that Walker had
"stated that he [had] informed four different staff
members that he ... was not working but getting paid"
and that Walker had "also stated that he sent four
cop-outs" on the issue. Baumgartner viewed the former
statement as untrue because Walker "could only identify
two people" he had told. Baumgartner viewed the latter
statement as untrue because neither she nor Walker had been
able to locate the cop-outs. Walker countered that he had
found one of the cop-outs, and he asserted that Baumgartner
had "omitted" it from her report. But Baumgartner
explained that she had not included the cop-out because it
was irrelevant.
At the
close of the hearing, Officer Wright summarized that
"somewhere along the line, [Walker] omitted telling
people that... [he was] getting paid for a job that [he was
not] really doing." Accordingly, Officer Wright found
Walker guilty of making a false statement to a staff member
and ordered him to pay restitution of $316, just under half
the amount by which he was overpaid.
Walker
appealed to the superintendent. He emphasized that he never
made a false statement, but he did not raise any procedural
concerns. The superintendent denied the appeal and concurred
with Officer Wright's decision.
Walker
then appealed to the superior court representing himself,
reiterating the argument that no evidence supported the
finding that he had made a false statement. He also made two
new arguments for the first time: (1) DOC violated his
procedural rights by refusing to allow him to call witnesses
in his defense, and (2) the punishment of restitution was not
allowed under the circumstances of his case. The superior
court affirmed DOC, determining that "some
evidence" supported DOC s disciplinary decision and that
Walker had waived the other claims by failing to raise them
in his administrative appeal to the superintendent.
This
appeal followed. Walker, still representing himself, repeats
his argument from the superior court that DOC violated his
due process rights by refusing to allow him to call witnesses
in his own defense.[4] After the parties submitted their initial
briefing, we requested supplemental briefing on the following
questions: (1) Do the prisoner discipline statutes or
regulations require a prisoner to raise an issue on appeal to
the superintendent in order to preserve the issue for
judicial review? (2) In light of the broad authority given to
the superintendent under 22 AAC 05.480, is it appropriate to
require the issue preservation typical of adversarial
judicial proceedings? (3) Does a prisoner have notice that
the failure to raise an issue on appeal to the superintendent
will result in waiver of that issue?
III.
DISCUSSION
A.
Walker Did Not Forfeit His Due Process Claim By Failing To
Raise It During The Administrative Appeal.
"As
a general matter, it is inappropriate for courts reviewing
appeals of agency decisions to consider arguments not raised
before the administrative agency
involved."[5] Previously, we have required litigants to
exhaust issues at the agency level before raising them on
appeal in the superior court.[6] And in James v. State,
Department of Corrections, we extended the
issue exhaustion requirement to prison disciplinary
appeals.[7] Walker did not raise his procedural
arguments before the superintendent; James thus
appears to preclude Walker's arguments on appeal.
This
case, however, compels us to reconsider the application of an
issue exhaustion requirement to prison disciplinary appeals.
Though an issue not presented to an administrative
decisionmaker generally cannot be argued for the first time
in court, "such a rule is not always
appropriate."[8] Determining whether issue exhaustion is
appropriate in any given context "requires an
understanding of [exhaustion's] purposes and of the
particular administrative scheme
involved."[9] Thus, our cases mandating issue exhaustion
in several types of agency proceedings should not be
construed to "announce an inflexible practice" of
mandating issue exhaustion in all such
proceedings.[10] Rather, we must carefully analyze the
particular administrative scheme at issue before imposing an
issue exhaustion requirement in a new context. We neglected
to conduct any such particularized analysis in
James;[11] we remedy the oversight now.
As a
threshold matter, we note that issue exhaustion in
administrative appeals is often mandated by statute or
regulation.[12] When this is the case, we do not need to
determine whether a judicially created issue exhaustion
requirement is appropriate.[13] Here, however, the regulation
that governs the intra-agency appeal process does not
articulate an issue exhaustion requirement.[14] Neither does
the statute that governs appeals from the final decision of
the DOC.[15] As the State notes, the statute and
regulation together require prisoners to exhaust all
administrative remedies before filing an appeal in
superior court.[16] But while issue exhaustion and
exhaustion of administrative remedies "can be concurrent
concepts at times, . . . they are not
synonymous."[17] Accordingly, we reject the State's
argument that an issue exhaustion requirement is
"inherent" in the requirement that prisoner
appellants exhaust administrative remedies.[18]
Having
thus concluded that no statute or regulation mandates issue
exhaustion, we must determine whether to impose such a
requirement based on "an analogy to the rule that
appellate courts will not consider arguments not raised
before trial courts."[19] To answer this question, we
...