      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

SCOTT WALKER,              )
                           )                        Supreme Court No. S-16202
              Appellant,   )
                           )                        Superior Court No. 3PA-14-02547 CI
    v.                     )
                           )                        OPINION
STATE OF ALASKA,           )
DEPARTMENT OF CORRECTIONS, )                        No. 7237 – April 27, 2018
                           )
              Appellee.    )
                           )

              Appeal from the Superior Court 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.]
              BOLGER, Justice.




      *
             This case was consolidated with Huber v. State, Department of Corrections,
No. S-16190, and DeRemer v. State, Department of Corrections, No. S-16194, for
purposes of oral argument. Christopher V. Hoke, Hoke Law, Anchorage, counsel of
record for Huber and DeRemer, presented argument on behalf of Walker.
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



       1
              A “cop-out” is a “Request for Interview Form” used by inmates to contact
officers. A DOC policy requires that completed cop-outs be added to the inmate’s file.
See James v. State, Dep’t of Corr., 260 P.3d 1046, 1049 n.6 (Alaska 2011); STATE OF
ALASKA, DEP’T OF CORR., POLICIES AND PROCEDURES §§ 808.11(VII)(A)(2)(f), 808.11a
(2008), http://www.correct.state.ak.us/commissioner/policies-procedures.

                                            -2-                                        7237

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 . . .


         2
              22 Alaska Administrative Code (AAC) 05.400(c)(5), (d)(4) (2004 & Supp.
2015).
         3
              Officer Wright’s full name is not in the record.

                                            -3-                                       7237

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



                                             -4-                                         7237

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

      4
              He also argues that DOC violated his due process rights by imposing a
sanction (restitution) not authorized by regulation and that no evidence supported the
decision reached at the disciplinary hearing. Our resolution of Walker’s claim
concerning his right to call witnesses obviates consideration of these other claims of
error.
      5
             1000 Friends of Md. v. Browner, 265 F.3d 216, 227 (4th Cir. 2001)
(quoting Pleasant Valley Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994)); see also
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (“Simple fairness
to those who are engaged in the tasks of administration, and to litigants, requires as a
general rule that courts should not topple over administrative decisions unless the
administrative body not only has erred but has erred against objection made at the time
appropriate under its practice.”).
      6
             See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1256-57 (Alaska
                                                                    (continued...)

                                           -5-	                                     7237

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.

      6
       (...continued)
2007); Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996); Ratliff v. Alaska
Workers’ Comp. Bd., 721 P.2d 1138, 1142 (Alaska 1986).
      7
              260 P.3d 1046, 1050 n.12 (Alaska 2011) (deeming appellant’s challenges
to prison disciplinary decisions “waived . . . because they were not raised during the
administrative proceedings”).
      8
             Sims v. Apfel, 530 U.S. 103, 112-13 (2000) (O’Connor, J., concurring).
      9
              McKart v. United States, 395 U.S. 185, 193 (1969) (discussing exhaustion
of administrative remedies). In Sims the Supreme Court cited this language in its
analysis of issue exhaustion. 530 U.S. at 109-10.
      10
             Hormel v. Helvering, 312 U.S. 552, 556 (1941).
      11
             In James we cited Trustees for Alaska v. State, Department of Natural
                                                                     (continued...)

                                           -6-                                      7237

              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

       11
       (...continued)
Resources, 865 P.2d 745, 748 (Alaska 1993), which addressed issue exhaustion not in
the context of prison disciplinary proceedings but rather in the context of an
administrative challenge to a lease of state land for oil development. James, 260 P.3d
at 1050 n.12. More detailed analysis of the issue exhaustion requirement was
unnecessary in James because an alternative ground — deficient appellate briefing —
independently precluded consideration of the appellant’s arguments. See id.
       12
             See Sims, 530 U.S. at 107-08 (“[R]equirements of administrative issue
exhaustion are largely creatures of statute.”); United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 36-37 (1952).
       13
             See Sims, 530 U.S. at 107-08; Jarita Mesa Livestock Grazing Ass’n v. U.S.
Forest Serv., 61 F. Supp. 3d 1013, 1068 (D.N.M. 2014) (“[C]ourts may impose an
issue-exhaustion requirement where none exists in the statute or regulation, but . . . they
may not remove or disregard a statute or regulation that requires issue exhaustion.”),
amended in part on other grounds, No. CIV. 12-0069 JB/KBM, 2015 WL 5138286
(D.N.M. Aug. 26, 2015).
       14
              See 22 AAC 05.480 (2004).
       15
              See AS 33.30.295.
       16
              See AS 33.30.295(a) (“A prisoner may obtain judicial review by the
superior court of a final disciplinary decision . . . .”); 22 AAC 05.480(o) (“A decision on
appeal that has no further level of appeal under this section is a final decision and order
                                                                              (continued...)

                                            -7-                                       7237

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 examine the unique characteristics of
prisoner disciplinary proceedings.
              First, and perhaps most importantly, we note that a “failure to notify
claimants of any issue-exhaustion requirement . . . weighs against imposing one.”20



       16
        (...continued)
of the department that may be appealed to the superior court in accordance with
AS 33.30.295 and the Alaska Rules of Appellate Procedure.”).
       17
              Mass., Dep’t of Pub. Welfare v. Sec’y of Agric., 984 F.2d 514, 523 n.8
(1st Cir. 1993) (citing 4 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 26:7
(2d ed. 1983)). “Issue exhaustion” refers to the requirement that individual issues must
be raised in an administrative appeal in order to raise those issues in a subsequent judicial
proceeding; “exhaustion of administrative remedies” refers to the requirement that a party
exhaust the administrative process as a predicate for judicial review. See Etchu-Njang
v. Gonzales, 403 F.3d 577, 581 (8th Cir. 2005).
       18
              See Sims 530 U.S. at 107 (“The Commissioner argues, in particular, that an
issue-exhaustion requirement is ‘an important corollary’ of any requirement of
exhaustion of remedies. We think that this is not necessarily so and that the corollary is
particularly unwarranted in this case.” (citation omitted)).
       19
              Id. at 108-09.
       20
              Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 632 (9th
Cir. 2008) (citing Sims, 530 U.S. at 113 (O’Connor, J., concurring)).

                                            -8-                                        7237

Administrative agencies exercise extensive control over the intra-agency appeals process;
they enact the governing regulations, explain the process to litigants, and provide
litigants with the appropriate forms for filing an appeal. Thus, where an agency declines
to inform litigants of an issue exhaustion requirement during the administrative appeal
process, permitting the agency to assert an issue exhaustion defense in court raises serious
fairness concerns.21 As indicated above, DOC regulations do not provide notice that
failure to raise an issue during the administrative appeal process results in waiver of that
issue.22 Nor do the forms distributed to prisoners during the intra-agency appeals
process. While we acknowledge that issue exhaustion generally serves important public
policy objectives, here “the interests of the individual weigh heavily against the
institutional interests the doctrine exists to serve.”23
              Second, we also take into account the limited resources available to
prisoners during the administrative appeal process. Prisoners have only “three working
days after receipt of the disciplinary tribunal’s written decision” to prepare and submit
their appeals.24 And under current DOC regulations, prisoners have no right to counsel




       21
             Cf. Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006) (“If the
[agency] wants inmates to provide specific types of information in their grievances, it
should notify them of those requirements in advance rather than waiting until they have
already completed the grievance process and filed a lawsuit.” (citing Sims, 530 U.S. at
113 (O’Connor, J., concurring))), abrogated on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007).
       22
              See 22 AAC 05.480.
       23
             Scott v. McDonald, 789 F.3d 1375, 1378 (Fed. Cir. 2015) (quoting Maggitt
v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000)).
       24
              22 AAC 05.480(b).

                                             -9-                                      7237

or a staff advocate for legal assistance in preparing their appeal.25 We acknowledge that
some particularly adept prisoners may be able to identify and develop constitutional
claims while proceeding pro se. And, as the State argues, our discussion in James could
provide them with notice that they must do so.26 Nevertheless, it seems evident that most
prisoners will lack the time and expertise necessary to effectively present their
constitutional claims.27
              Third, the statutory scheme governing appeals from prison disciplinary
proceedings weighs against imposing an issue exhaustion requirement. Issue exhaustion
incentivizes parties to raise issues during the agency proceeding by circumscribing the
scope of judicial review, thereby “allowing the agency . . . to apply its special
expertise.”28 However, AS 33.30.295 already circumscribes courts’ authority to review

       25
              An inmate accused of a nonminor infraction has a right “to the assistance
of an advocate in investigating the facts and preparing and presenting a defense at [the]
disciplinary hearing,” 22 AAC 05.440(a) (2004), and a staff advocate was in fact present
at Walker’s disciplinary hearing. A prior regulation provided that inmates were entitled
to a staff advocate in preparing their appeal as well. See Hertz v. Prewitt, Nos. S-4365,
S-4434, 1992 WL 12549802 (Alaska May 27, 1992) (“The prisoner may have the
assistance of his or her advocate in preparing [the] appeal.” (citing former 22 AAC
05.480(b) (am. 1/9/87))). But that provision has since been removed. See 22 AAC
05.480(b).
       26
              Cf. Jovanov v. State, Dep’t of Corr., 404 P.3d 140, 154 (Alaska 2017)
(holding that a statute “establishing [a prisoner’s] potential financial responsibility for
medical care” provided adequate notice that DOC would not cover medical costs).
       27
             See Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989) (per curiam) (“To require a pro se plaintiff . . . to wade through the case law of this
Circuit in order to preserve her right to appellate review would be an unreasonable
burden.”); see also Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008).
       28
            Jon C. Dubin, Torquemada Meets Kafka: The Misapplication of the Issue

Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 COLUM. L. REV.

                                                                      (continued...)


                                            -10-                                       7237

final disciplinary decisions: Prisoners may obtain judicial review of a final disciplinary
decision only when they allege “violation of . . . fundamental constitutional rights.”
Effectively, then, the question before us is whether prisoners should be required to raise
constitutional claims during their administrative appeal in order to avoid waiver. And
superintendents have no special expertise to address constitutional claims. Judicial
review of such claims thus does not “impermissibly displace agency skill or invade the
field of agency discretion.”29
              DOC’s regulations reflect prison superintendents’ lack of expertise in
constitutional matters. Under 22 AAC 05.480(f), superintendents “shall consider
whether the disciplinary tribunal’s findings justify the adjudication or the penalty
imposed.” However, the regulation does not impose a similar requirement to review
constitutional claims. Nor does the governing regulation explicitly grant superintendents
discretionary authority to review such claims.30
              Having examined the notice given to prisoners of the need to exhaust issues
during the administrative appeal, the resources afforded them during the administrative


       28
       (...continued)
1289, 1307 (1997).
       29
               Atl. Richfield Co. v. U.S. Dep’t of Energy, 769 F.2d 771, 782 (D.C. Cir.
1984) (declining to require exhaustion of administrative remedies); see also Dubin, supra
note 28, at 1330 n.198 (“[S]ome courts have crafted an exception to issue exhaustion in
situations where the ‘issues involved were strictly legal and did not call for agency
expertise.’ ” (quoting STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE
LAW AND REGULATORY POLICY: PROBLEMS, TEXT, AND CASES 1130 (3d ed. 1992))).
       30
              Our precedent may preclude DOC from mandating such review. See
Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 36 (Alaska 2007); Dougan v.
Aurora Elec. Inc., 50 P.3d 789, 795 n.27 (Alaska 2002) (“Administrative agencies have
no jurisdiction to decide issues of constitutional law such as a violation of one’s right to
privacy.”).

                                           -11-                                       7237

appeal process, the regulation governing DOC intra-agency appeals, and the statute
governing appeals from final disciplinary decisions, we hold that prisoners who fail to
raise their constitutional claims during the administrative appeal process do not
necessarily forfeit those claims. We overrule James to the extent that it is inconsistent
with this holding.31 In reaching this result, however, we take note of the fact that Walker
brought his constitutional claim to DOC’s attention during the initial stages of the
disciplinary process. Walker requested the presence of three witnesses for his hearing;
the officer who presided over the disciplinary hearing denied (or at least failed to grant)
that request. Accordingly, we need not decide at this time whether issue exhaustion
applies to issues that a prisoner never brings to DOC’s attention or that a prisoner
deliberately ignores.
              We further note that our decision derives from a particularized analysis of
prison disciplinary proceedings; it does not invalidate issue exhaustion requirements that
we have applied to other types of agency proceedings.32 We acknowledge that issue
exhaustion generally furthers desirable policy objectives33 — and that it would do so
here. By (1) promulgating a regulation establishing an issue exhaustion requirement;
(2) providing prisoners with forms explaining that requirement; and (3) providing
prisoners with forms that enumerate prisoners’ constitutional rights during disciplinary
hearings, DOC could alleviate the concerns that now preclude us from concluding that
Walker’s due process claims have been waived.

       31
             See James v. State, Dep’t of Corr., 260 P.3d 1046, 1050 n.12 (Alaska
2011); cf. Engstrom v. Engstrom, 350 P.3d 766, 771 (Alaska 2015).
       32
           See, e.g., Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1256-57 (Alaska
2007); Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996); Ratliff v. Alaska
Workers’ Comp. Bd., 721 P.2d 1138, 1142 (Alaska 1986).
       33
              Dubin, supra note 28, at 1307.

                                           -12-                                      7237

       B.	    The Hearing Officer’s Failure To Call Walker’s Requested Witnesses
              Was A Prejudicial Violation Of Walker’s Constitutional Rights.
              Having concluded that Walker has not waived his due process claim, we
must determine whether the hearing officer violated his due process rights and whether
the violation prejudiced his right to a fair adjudication.34 “Whether an inmate has
received procedural due process is an issue of constitutional law that we review de
novo.”35 Whether a party has suffered prejudice is likewise reviewed de novo.36
              “An inmate facing a major disciplinary hearing is entitled to call
witnesses . . . .”37 Major disciplinary proceedings include those that could “subject
inmates to serious punishment such as solitary confinement and loss of good time
credit.”38 Walker was cited for two infractions,39 either of which could have subjected
him to punitive segregation or loss of good time.40 He thus had a due process right to call
witnesses in his defense.41




       34	
              AS 33.30.295.
       35
            James, 260 P.3d at 1050 (quoting Brandon v. State, Dep’t of Corr., 73 P.3d
1230, 1233 (Alaska 2003)).
       36
              Kodiak Island Borough v. Roe, 63 P.3d 1009, 1015 (Alaska 2003).
       37
              Abruska v. Dep’t of Corr., State, 902 P.2d 319, 321-22 (Alaska 1995).
       38
             James, 260 P.3d at 1052; see also McGinnis v. Stevens, 543 P.2d 1221,
1237 (Alaska 1975) (“We thus distinguish between those disciplinary proceedings which
threaten major deprivations of a prisoner’s limited liberty and those which do not.”).
       39
              22 AAC 05.400(c)(5), (d)(4).
       40
              22 AAC 05.470(a)(3), (5).
       41
              Abruska, 902 P.2d at 322.

                                           -13-	                                     7237

             As we acknowledged in Abruska, the right to call witnesses is “subject to
certain limitations”;42 DOC regulations provide that a hearing officer “may decline, for
compelling reasons, to call a witness that the accused prisoner . . . has requested to
appear.”43 However, the regulations also provide that:
             If the prisoner is found to have committed an infraction, the
             hearing officer . . . shall file a report, to be attached to the
             completed disciplinary tribunal report, listing all persons the
             prisoner requested to appear but were not called to testify
             . . . . This report must contain a brief statement of the reasons
             why the persons were not called . . . .[44]
Here, although Walker was found to have committed an infraction, the hearing officer
did not attach the required report to DOC’s disciplinary decision report. Because
prisoners facing major disciplinary proceedings are entitled to call witnesses, and
because we are unable to evaluate why DOC denied Walker’s request to call witnesses,
we conclude that the hearing officer’s failure to call Walker’s requested witnesses
constituted a violation of his due process rights.
             We next consider whether the hearing officer’s failure to call Walker’s
witnesses was prejudicial. Prior to the disciplinary hearing, Walker told Baumgartner
that he had informed at least two officers about the payment mistake. He repeated this
claim in his testimony at the disciplinary hearing. Baumgartner’s incident report,
however, stated that one of these officers had denied that Walker told him about being



      42
             Id. at 321.
      43
               22 AAC 05.430(c) (2004); see also McGinnis, 543 P.2d at 1230 (“To the
extent that the calling of witnesses and presentation of evidence is repetitious or
irrelevant, the chairman of the disciplinary committee is vested with the discretion under
the Division’s regulations, to limit testimony and the production of other evidence.”).
      44
             22 AAC 05.430(c).

                                           -14-                                     7237

overpaid. Walker’s testimony was thus contrary to the incident report. And his
proposed witnesses could have helped resolve the factual dispute: Walker intended to
call both of the officers he claimed to have informed of the situation, as well as another
inmate who would have testified on the issue.
              During the hearing, Baumgartner stated that Walker told an “untruth” when
he initially told her “that he [had] informed four different staff members” about the
overpayment issue but was subsequently “only [able to] identify two people.” She also
stated that Walker told an untruth when he told her he had submitted multiple cop-outs
on the overpayment issue. But it is not clear whether these purported untruths formed
the basis of the hearing officer’s guilty finding; Officer Wright merely indicated that
“somewhere along the line, [Walker] omitted telling people that [he was] . . . getting paid
for a job that [he was not] really doing.” Walker asserts that his requested witnesses
could have plausibly testified that he had informed DOC employees about the
overpayment issue. Accordingly, we conclude that the hearing officer’s failure to call
the three witnesses was not harmless.
IV.    CONCLUSION
              For the reasons explained above, we REVERSE the superior court’s
decision affirming the decision of the Department of Corrections, and we instruct the
superior court to REMAND the matter for a new disciplinary hearing.




                                           -15-                                      7237

