Pease-Madore v. State, Dept. of Corrections

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MATTHEW PEASE-MADORE, ) Supreme Court Nos. S-16279/16289/
) 16290
Appellant, )
) Superior Court Nos. 3AN-15-05561/
v. ) 05563/05564 CI
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF CORRECTIONS, )
) No.7232 – March 30, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Kevin M. Saxby, Judge.
Appearances: 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.]
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 factfinders 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
1
418 U.S. 539, 564 (1974) (quoting Morrissey v. Brewer, 408 U.S. 471, 489
(1972)).
2
543 P.2d 1221, 1236 (Alaska 1975).
3
22 AAC 05.400(d)(6) lists “threats to another of future bodily harm” as a
low-moderate infraction.
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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,
4
The December 3 disciplinary hearings mentioned in this opinion were three
separate hearings, not one combined hearing.
5
22 AAC 05.400(c)(15) lists “engaging 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 disrupts or interferes
with the orderly administration of the facility” as a high-moderate infraction.
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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 case6 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
6
The other eight appeals are not before us. It appears that the superior court
dismissed one of those appeals and remanded the other seven for further action.
7
James v. State, Dep’t of Corr., 260 P.3d 1046, 1050 (Alaska 2011) (quoting
Brandon v. State, Dep’t of Corr., 73 P.3d 1230, 1233 (Alaska 2003)).
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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
8
Kodiak Island Borough v. Roe, 63 P.3d 1009, 1015 (Alaska 2003) (citing
Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000)).
9
Allen v. State, Dep’t of Soc. Servs., Div. of Pub. Assistance, 203 P.3d 1155,
1160 (Alaska 2009).
10
Johnson v. State, Dep’t of Corr., 380 P.3d 653, 655 (Alaska 2016) (quoting
Barber v. State, Dep’t of Corr., 314 P.3d 58, 62 (Alaska 2013)); see also Catholic Bishop
of N. Alaska v. Does 1–6, 141 P.3d 719, 722 (Alaska 2006) (“We review questions of law,
including the interpretation of statutes and regulations, according to our independent
judgment.”).
11
Sellers v. Kurdilla, 377 P.3d 1, 13 (Alaska 2016) (citing State v. Jacob, 214
P.3d 353, 361 (Alaska 2009)).
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factfinders 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 Constitution15 and that “the written statement and the
12
418 U.S. 539, 542-43, 564 (1974) (quoting Morrissey v. Brewer, 408 U.S.
471, 489 (1972)).
13
Id. at 565.
14
543 P.2d 1221, 1236 (Alaska 1975).
15
Although Pease-Madore did not preserve this issue by arguing it before the
superintendent, his briefing to the superior court included the argument that “[t]he
(continued...)
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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 requirement is a more protective requirement that
can satisfy the written statement requirement:
Concerning the nature of the record required of disciplinary
hearings, Wolff held merely that “there must be a ‘written
statement by the factfinders as to the evidence relied on and
reasons’ for the disciplinary action.” In the case at bar, the
superior court decreed that a tape recording of the entire
disciplinary proceeding is essential. Here we are in
15
(...continued)
verbatim [recording] requirement was . . . an added obligation” and that it “did not
obviate the need for a written statement.” And the superior court held “that ‘a verbatim
record’ satisfied Wolff’s requirement for written findings of fact.”
16
See 22 AAC 05.420(b)(5)(D), (c)(3) (“[T]he tape recorder need not be
operating during the deliberations of the disciplinary tribunal . . . .”).
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agreement with the superior court. In our view, the
requirement of 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. A verbatim record of the proceedings will
furnish a more complete and accurate source of information
than the “written statement” requirement of Wolff, will assist
in facilitating a more intelligent review of the disciplinary
proceeding, and moreover, the use of cassettes and other
means of recording hearings may well prove less burdensome
than the written statement requirement.[17]
This explanation shows that we considered the verbatim record to serve the same
purposes as the written statement — we determined that the verbatim record provides a
more protective standard, serving those purposes at least as well as a written statement
would.18 This interpretation is supported by our subsequent statement that “the use of
17
McGinnis, 543 P.2d at 1236.
18
Id.; cf. Moore v. Collins, No. 92-8383, 47 F.3d 425, 1995 WL 71177, at *3
n.6 (5th Cir. Jan. 26, 1995) (noting that the United States Constitution does not require
the recording of disciplinary proceedings but that in a prior decision the court
“nevertheless agreed the measure was necessary to remedy the . . . failure to provide
adequate written records of major disciplinary hearings as required by Wolff”); Inmates
of the Neb. Penal & Corr. Complex v. Greenholtz, 576 F.2d 1274, 1284 (8th Cir. 1978)
(finding that maintaining a record of parole hearings “in the form of tape recordings”
fulfills the written record requirement under Wolff and “is constitutionally adequate
provided that the recordings are of sufficient quality to enable the record to be reduced
to writing”), rev’d on other grounds, Greenholtz v. Inmates of the Neb. Penal & Corr.
Complex, 442 U.S. 1 (1979); Watson v. Coughlin, No. 86 CIV. 9217 (CSH), 1988 WL
73388, at *4 (S.D.N.Y. July 1, 1988) (“[T]here is no doubt that a statement detailing the
evidence and reasons for plaintiff’s discipline was made in this case . . . . The fact that
that statement was made on a tape recording and only later transcribed is of no
significance.”); Finney v. Mabry, 455 F. Supp. 756, 777 (E.D. Ark. 1978) (“The functions
of a written record are also fulfilled by the tape recording of the disciplinary
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cassettes and other means of recording hearings may well prove less burdensome than
the written statement requirement,”19 further emphasizing the advantages of a verbatim
record over a written statement. We would not have made this statement if the verbatim
record requirement were in addition to the Wolff written statement requirement.
It is true that in McGinnis we did not mention the first basis identified in
Wolff, namely that a written record would protect the inmate against possible
consequences from misunderstanding the nature of the original proceedings. But this
does not mean that this purpose is not served by a verbatim record — to the contrary,
access to a verbatim record may do as much or more to protect the inmate from such
misunderstandings.
As to Pease-Madore’s argument that a written statement and a verbatim
record memorialize “separate phases of the proceedings,” a verbatim record may furnish
a more inclusive record of the proceedings. A written statement is a more summary
record, since it does not reflect the full proceeding but rather sets forth “the evidence
relied on and reasons[] for the disciplinary action.”20 A verbatim record is more
inclusive, consisting of a “recording of the entire disciplinary proceeding,” except for the
deliberations.21 If the evidence relied on and reasons for the disciplinary action are not
identified in the recording, then there is indeed a qualitative difference between the
information made available through a written statement as opposed to a recording. But
18
(...continued)
hearing . . . .”).
19
McGinnis, 543 P.2d at 1236.
20
Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (quoting Morrissey v.
Brewer, 408 U.S. 471, 489 (1972)).
21
McGinnis, 543 P.2d at 1236; 22 AAC 05.420(b)(5)(D), (c)(3).
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if the recording includes information about the evidence relied on and the reasons for the
decision, then the verbatim record fulfills this purpose and provides “a more complete
and accurate source of information than the ‘written statement’ requirement.”22
B. The Superior Court Did Not Err In Holding That Due Process Was
Satisfied By The Written Report And Audio Recording.
Pease-Madore argues that “[t]he superior court erred when it attempted to
rely upon the incident report and the verbatim record to ‘collectively meet due process
concerns.’ ” He reads 22 AAC 05.455(a) as prohibiting the consideration of the incident
report as evidence in proceedings where the officer who wrote the report was present at
the disciplinary hearing.23 He argues that it was improper for the superior court to
consider the incident report to be incorporated “into the record by mere reference,” that
the written decisions were insufficient, and that it was inappropriate “to utilize the
verbatim record to bolster the otherwise complete omission of a statement as to
admissible evidence relied upon or reasons for the adjudicative decision.”
22
McGinnis, 543 P.2d at 1236; see Wolff, 418 U.S. at 564 (“We also hold that
there must be a ‘written statement by the factfinders as to the evidence relied on and
reasons’ for the disciplinary action.” (quoting Morrissey, 408 U.S. at 489)).
23
See 22 AAC 05.455(a) (“A prisoner is presumed innocent of an infraction,
and the facility has the burden of establishing guilt. A prisoner cannot be found guilty
of an alleged infraction unless the hearing officer or a majority of the disciplinary
committee, as applicable, is convinced from the evidence presented at the hearing that
the prisoner’s guilt is established by a preponderance of the evidence. The decision in
the adjudicative phase of the hearing must be based only on evidence presented at the
hearing. If a prisoner does not request the presence of the facility staff member who
wrote the disciplinary report, the report may be considered as evidence by the
disciplinary tribunal and alone may serve as the basis for a decision. Other hearsay
evidence may be considered if it appears to be reliable. The decision in the dispositive
phase of the hearing may be based on evidence presented at the hearing or contained in
the prisoner’s case record.”).
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In the words of the superior court, Pease-Madore has shown “[n]o good
reason . . . as to why the hearing officer could not use [the incident report] as part of the
basis for his decision.” Under 22 AAC 05.455(a), “[i]f a prisoner does not request the
presence of the facility staff member who wrote the disciplinary report, the report may
be considered as evidence by the disciplinary tribunal and alone may serve as the basis
for a decision.” Nothing in the regulation suggests that the report may not be considered
as evidence and serve as part of the basis for a decision if the facility staff member who
wrote the report is present. To the contrary, 22 AAC 05.455(a) provides that “[o]ther
hearsay evidence may be considered if it appears to be reliable,” meaning that both the
report and other hearsay evidence may be considered.
Pease-Madore’s argument seems to be based on language from James v.
State, Department of Corrections, where we stated that “22 AAC 05.455(a) directs that
an incident report may be considered as evidence and serve as the sole basis for a
disciplinary determination only ‘[i]f a prisoner does not request the presence of the
facility staff member who wrote the disciplinary report.’ ”24 However, this statement
from James means that the incident report may serve both as evidence and as the sole
basis for the determination only if the report writer’s presence was not requested, not that
the incident report may not be evidence if the writer is present. And any possible
ambiguity is clarified by reference to the regulation itself as a whole, which in no way
suggests that the presence of the report writer at the hearing prevents the consideration
of the report as evidence.
All three disciplinary decisions include the phrase “WOR as written,”
which appears to denote the incorporation of and agreement with the incident reports.
24
260 P.3d 1046, 1053 (Alaska 2011) (alteration in original) (quoting 22 AAC
05.455(a)).
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Pease-Madore cites Brandon v. Department of Corrections for the proposition that
“[w]hile 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.”25 But it is unclear whether the disciplinary decision at issue
in Brandon contained any statement incorporating and agreeing with the incident
report.26
In light of the detailed incident reports and the verbatim records of the three
proceedings in these appeals, we conclude that constitutional due process has been
satisfied. The disciplinary decision regarding the first incident notes that “officer
testimony perceived statement as a threat,” which shows that the disciplinary committee
found that the statement had been made and was perceived as a threat; Pease-Madore did
not contest having made the statement, instead arguing that it was not meant as a threat.
The critical fact to be determined thus was whether Pease-Madore intended his statement
to be a threat; the written decision found that it was a threat, reflecting the basis of the
decision.
Similarly, the disciplinary decision regarding the second incident notes that
the “[inmate] did not deny allegations but argued it to be an appropriate [sic] write-up
instead.” Thus, in addition to incorporating and agreeing with the incident report, the
disciplinary decision also found that the facts alleged in the incident report were
uncontroverted. The disciplinary decision regarding the third incident notes that the
“[inmate] stated that sometimes death is funny,” and the summary of Pease-Madore’s
25
865 P.2d 87, 91 (Alaska 1993).
26
See id. at 90-91 (indicating that the Department argued the report provided
“enough information to advise [the inmate] of the reason for his guilt and allow [him] to
file a meaningful appeal” but not stating whether the report had been expressly
incorporated into the disciplinary decision).
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statement shows that Pease-Madore did not deny the allegations but rather claimed that
his statement was not intended to be threatening. The basis of these decisions is evident:
Pease-Madore’s explanations for his statements were not believed, and instead his
statements were found to be threatening.
Although the written disciplinary hearing reports are extremely brief and
undetailed, they do expressly incorporate the incident reports, which provide more
details. We conclude that the verbatim records, when considered along with the incident
reports and other evidence from the proceedings, satisfy the written statement
requirement in Wolff, and, as the superior court observed, “Pease-Madore had the
opportunity to review the recordings to prepare for his appeals.” We therefore hold that
due process was satisfied.
Even if there were procedural error, Pease-Madore has made no showing
of prejudice, and therefore the “disciplinary decision[s] may not be reversed.”27 Pease-
Madore argues that the statutory prejudice requirement is preempted under the
Supremacy Clause of the United States Constitution because the United States Supreme
Court held in Wolff that a written statement is required. However, we have held that “an
inmate must demonstrate both that a constitutional right was violated and that the
violation prejudiced the inmate’s right to a fair adjudication,” in order for a disciplinary
decision to be reversed.28
Though we uphold the superior court’s affirmance of the decisions of the
Department of Corrections, we do not approve of or validate the Department’s failure to
27
AS 33.30.295(b) provides, “A disciplinary decision may not be reversed
(1) unless the court finds that the prisoner’s fundamental constitutional rights were
violated in the course of the disciplinary process, and that the violation prejudiced the
prisoner’s right to a fair adjudication.”
28
James, 260 P.3d at 1056 (citing AS 33.30.295(b)(1)).
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comply with its own regulations. 22 AAC 05.475(a) plainly requires that the disciplinary
tribunal’s “decision must include . . . a summary of the statement of the accused
prisoner” and “a summary of the testimony of witnesses.” The regulation also requires
the decision to include “a statement of the disciplinary tribunal’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 disciplinary tribunal’s
decision.”29 The Department did not comply with its own regulatory requirements. We
expect the Department going forward to actually comply with its own requirements for
its written decisions under 22 AAC 05.475(a).
V. CONCLUSION
We AFFIRM the superior court’s dismissals of the three appeals.
29
22 AAC 05.475(a).
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