    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

BOB HUBER,                                        )
                                                  )    Supreme Court No. S-16190
                    Appellant,                    )
                                                  )    Superior Court No. 3PA-15-01336 CI
    v.                                            )
                                                  )    OPINION
STATE OF ALASKA, DEPARTMENT                       )

OF CORRECTIONS,                                   )    No. 7284 – August 31, 2018

                                                  )
                    Appellee.                     )
                                                  )


            Appeal from the Superior Court of the State of Alaska, Third
            Judicial District, Palmer, Gregory Heath, Judge.

            Appearances: Jon Buchholdt, Buchholdt Law Office, and
            Christopher V. Hoke, Hoke Law, Anchorage, for Appellant.
            John K. Bodick and Matthias R. Cicotte, Assistant Attorneys
            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.
I.     INTRODUCTION
              Federal law requires that a prison disciplinary decision must include a
written statement of the evidence relied on and the reasons for the decision. In this case,
the superior court affirmed a decision finding a prisoner “guilty” without any further
explanation. The court reasoned that the prisoner was not prejudiced because the
disciplinary hearing was recorded, and the prisoner was able to adequately explain his
version of the evidence in his appeal. But we conclude that the written disciplinary
decision or the audio recording must ordinarily include a specific statement satisfying
federal law: a mere finding of “guilty” is generally insufficient. We therefore reverse
the superior court’s decision affirming the decision of the Department of Corrections.
II.    FACTS AND PROCEEDINGS
              Bob Huber, a former prisoner at Goose Creek Correctional Center, was
involved in an incident in the prison dining hall on October 11, 2014. The incident
report states that Huber stared at a correctional officer in an intimidating manner,
dropped food on the floor, yelled profanity at the officer, and refused to provide his
inmate number when asked. The officer cited him under 22 Alaska Administrative Code
(AAC) 05.400(c)(15), which prohibits prisoners from “[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 disrupts or
interferes with the orderly administration of the facility.”1
              A disciplinary hearing was held on October 21. At the hearing, the hearing
officer read the correctional officer’s description of the incident aloud and asked Huber
how he would like to plead. Huber pleaded not guilty. He testified that the incident



       1
           Violating this          provision      is   a   high-moderate       infraction.
22 AAC 05.400(c)(15) (2018).

                                            -2-                                      7284
report misrepresented what had occurred and that he had been attempting to defend an
inmate who was being treated unfairly. After Huber finished testifying, the hearing
officer stated that she was “going to find [Huber] guilty.” She then imposed a penalty
of 15 days of punitive segregation. Following the hearing, the hearing officer issued a
written disciplinary decision on the standard decision form. The decision form includes
a section for enumerating the “reasons, evidence considered and specific facts” upon
which a guilty finding is based. The hearing officer left this portion of the form blank.
              Huber appealed the decision to the superintendent of Goose Creek
Correctional Center, explaining his version of events and arguing that the cited offense
in the correctional officer’s original incident report had not been properly filled out. The
superintendent affirmed the guilty finding and the penalty.
              Huber appealed to the superior court, raising the issue of a due process
violation for the first time. Huber noted that Department of Corrections (DOC)
regulations require a written disciplinary decision to include “a statement of the evidence
relied upon and the specific facts found to support the disciplinary tribunal’s decision.”2
He further argued that a hearing officer’s failure to include this information in the report
made it impossible for the superintendent to conduct meaningful review of the officer’s
findings. Accordingly, he concluded that the hearing officer’s decision violated his right
to due process.3 The State countered that Huber had waived his due process argument
by failing to assert it in his appeal to the superintendent. It further argued that even if


       2
             22 AAC 05.475(a)(3); see also Pease-Madore v. State, Dep’t of Corr., 414
P.3d 671, 678 (Alaska 2018); Brandon v. Dep’t of Corr., 865 P.2d 87, 91 (Alaska 1993).
       3
              In his points on appeal in the superior court, Huber also alleged that the
hearing officer relied on inadmissible evidence to reach the adjudicative decision. But
his brief before the superior court did not address this issue, and Huber does not raise it
on appeal.

                                            -3-                                       7284

Huber’s due process claim was preserved, he had failed to demonstrate that the lack of
written findings had prejudiced his ability to defend himself during the prison
disciplinary process.4
              The superior court affirmed the disciplinary decision. The court first
concluded that Huber had forfeited his due process argument by failing to raise the issue
during the disciplinary appeal process. The court further held that even if Huber had not
forfeited the issue, he had failed to show that he had been prejudiced as a result of the
lack of written findings. Huber appeals.
III.	 DISCUSSION
       A.	    Huber Did Not Forfeit His Due Process Claim By Failing To Raise It
              During The Administrative Appeal.
              The superior court concluded that “[b]ecause Huber’s due process argument
was not raised during the administrative proceedings below, it is waived on appeal.”
Huber responds that he did not need to explicitly raise this issue during the
administrative appeal process in order to preserve it. “We review de novo whether a
party has waived a claim on appeal.”5
              We recently addressed the effect of a prisoner’s failure to raise
constitutional claims during the DOC disciplinary appeals process in Walker v. State,
Department of Corrections.6 The appellant in Walker argued that DOC violated his right



       4
               See AS 33.30.295(a) (“A prisoner may obtain judicial review by the
superior court of a final disciplinary decision by the [DOC] only if the prisoner alleges
specific facts establishing a violation of the prisoner’s fundamental constitutional rights
that prejudiced the prisoner’s right to a fair adjudication.”).
       5
            Pease-Madore, 414 P.3d at 674 (quoting Sellers v. Kurdilla, 377 P.3d 1,
13 (Alaska 2016)).
       6
              421 P.3d 74 (Alaska 2018).

                                           -4-	                                      7284

to due process by refusing to allow him to call witnesses during a disciplinary hearing.7
The superior court concluded that the appellant had waived this argument by failing to
raise it in his administrative appeal.8 We reversed this decision and concluded that the
appellant had not forfeited this argument.9 We first noted that no statute or regulation
mandates issue exhaustion in Alaska.10 Then we concluded that several characteristics
of the prison disciplinary process counseled against imposing a judicially created issue
exhaustion requirement for disciplinary appeals.11 Accordingly, we held that “prisoners
who fail to raise their constitutional claims during the administrative appeal process do
not necessarily forfeit those claims.”12
             The forfeiture issue in Huber’s appeal is not meaningfully distinct from that
in Walker. Like the appellant in Walker, there is no evidence that Huber received notice
that failure to raise an issue during the administrative appeal process would result in
forfeiture.13 And Huber was similarly required to file his administrative appeal “within
three working days of receipt of the written disciplinary decision,” and prepared his
appeal without legal assistance.14 Finally, prison superintendents possess no “special

      7
             Id. at 78.

      8
             Id.

      9
             Id. at 82, 83.

      10
             Id. at 79.

      11
             Id. at 79-81.

      12
             Id. at 81.
      13
             Id. at 79-80. DOC regulations do not provide such notice. See 22 AAC
05.480.
      14
             See Walker, 421 P.3d at 80; see also 22 AAC 05.480(b) (establishing time
                                                                        (continued...)

                                           -5-                                      7284

expertise to address [the] constitutional claim[]” that Huber raises on appeal.15
Accordingly, we conclude that Huber did not forfeit his due process claim by failing to
raise it during the disciplinary appeals process.16
       B.	    The Hearing Officer’s Failure To Provide A Statement Of The
              Reasons For The Decision Or The Evidence Supporting It Was A
              Violation Of Huber’s Right To Due Process.
              In Wolff v. McDonnell, the United States Supreme Court held that due
process requires factfinders in a prison disciplinary proceeding to produce “a ‘written
statement . . . as to the evidence relied on and reasons’ for the disciplinary action.”17 A
year after Wolff, we accordingly stated in McGinnis v. Stevens that the Alaska
Constitution entitles prisoners “to all due process rights enunciated in Wolff,” including
the written statement requirement.18 And we went further and held that the Alaska
Constitution provides greater due process protections than the U.S. Constitution. It
entitles a prisoner not simply to a written summary statement, but “to have the entire
hearing recorded for purposes of administrative appeal and potential further appeal to




       14
               (...continued)
limit for filing appeal).
       15	
              Walker, 421 P.3d at 80.
       16
               We also note that Huber could not have raised the due process concern
during the disciplinary hearing since his concern stems from the result of that hearing.
See id. at 12 (“[W]e take note of the fact that Walker brought his constitutional claim to
DOC’s attention during the initial stages of the disciplinary process.”).
       17
              418 U.S. 539, 564 (1974) (quoting Morrissey v. Brewer, 408 U.S. 471, 489
(1972)).
       18
              543 P.2d 1221, 1236 (Alaska 1975).

                                           -6-	                                      7284

the superior court.”19
             Huber first contends that simply providing a verbatim record of his
disciplinary proceeding misconstrues our holding in McGinnis and cannot satisfy the
Wolff written statement requirement. However, we recently rejected this same argument
in Pease-Madore v. State, Department of Corrections.20 In that case, a prisoner appealed
from three disciplinary decisions in which the hearing officer did not produce a Wolff
written statement.21 We concluded that the McGinnis verbatim record requirement
“serve[s] the same purposes as the [Wolff] written statement,” and in fact “may furnish
a more inclusive record of the proceedings” than a written statement.22 Accordingly, we
held that an audio recording of a disciplinary hearing can satisfy Wolff’s requirement for
a written statement.23
             But we also noted that, although an audio recording of a disciplinary
proceeding may satisfy the Wolff requirement, it will not necessarily do so.24 We
reasoned that a verbatim record “fulfills th[e] purpose” of the Wolff requirement “if the
recording includes information about the evidence relied on and the reasons for the




      19
             Id. (emphasis added); see also Pease-Madore v. State, Dep’t of Corr.,
414 P.3d 671, 673 (Alaska 2018) (“In McGinnis . . . this court held that due process
under the Alaska Constitution requires a ‘verbatim record of the [disciplinary]
proceedings.’ ” (alteration in original) (quoting McGinnis, 543 P.2d at 1236)).
      20
             414 P.3d at 675.
      21
             Id. at 673-74.
      22
             Id. at 676.
      23
             Id. at 675-77.
      24
             Id. at 676-77.

                                           -7-                                      7284

decision.”25 However, we also stated that, “[i]f 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.”26 We concluded that the audio recordings of the proceedings
at issue provided sufficient information to satisfy the Wolff requirement only when
considered in conjunction with the hearing officers’ written reports.27 Pease-Madore
thus establishes that it is the substance of the explanation that matters, rather than the
manner in which it is preserved. In other words, a prisoner’s right to due process is
satisfied when the written disciplinary decision, audio recording, or both in conjunction
satisfy the Wolff requirement — that is, when they provide “information about the
evidence relied on and the reasons for the decision.”28
              Huber next contends that the hearing officer’s decision in his disciplinary
hearing did not satisfy the Wolff requirement, and thereby violated his right to due
process. “Whether an inmate has received procedural due process is an issue of
constitutional law that we review de novo.”29




       25
              Id. at 676.
       26
              Id.
       27
              See id. at 677-78.
       28
              Id. at 676.
       29
            Id. at 674 (quoting James v. State, Dep’t of Corr., 260 P.3d 1046, 1050
(Alaska 2011)).

                                           -8-                                       7284

              “One question left open by the Wolff decision is how specific a Wolff
statement should be.”30 In Pease-Madore, we concluded that verbatim records of a
proceeding coupled with disciplinary decisions that incorporated detailed incident reports
satisfied the Wolff requirement.31 Thus, in at least some instances, it is sufficient for a
hearing officer to simply identify the evidence supporting a decision.32
              In contrast to the disciplinary decisions at issue in Pease-Madore, the
record of Huber’s disciplinary decision contains no information about the evidence relied
on or the reasons for the hearing officer’s decision. At the disciplinary hearing, the
hearing officer simply heard Huber’s testimony and stated that she was “going to find
[Huber] guilty” without explaining the basis for her decision. And the written
disciplinary decision similarly indicates that Huber is “guilty” without providing further


       30
               Michael A. Guzzo, The Written Statement Requirement of Wolff v.
McDonnell: An Argument for Factual Specificity, 55 FORDHAM L. REV. 943, 948-49
(1987); see also 2 MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS § 10:49, at 586 (5th ed.
2017) (“In general, beyond its statement regarding situation[s] involving personal or
institutional safety, the Supreme Court has not specified the contents of the required
record other than that it should include the evidence relied on and the reasons for the
disciplinary action.”).
       31
              Pease-Madore, 414 P.3d at 677-78; see id. at 677 (“All three disciplinary
decisions include the phrase ‘WOR as written,’ which appears to denote the
incorporation of and agreement with the incident reports.”); see also DeRemer v. State
Dep’t of Corr., No. S-16194, 2018 WL 2077847, at *3 (Alaska May 2, 2018) (“Here, the
disciplinary decision stated that DeRemer’s conviction was based on ‘the documentation
of the written report.’”).
       32
             Several courts have reached similar conclusions. See, e.g., Culbert v.
Young, 834 F.2d 624, 631 (7th Cir. 1987); Brown v. Frey, 807 F.2d 1407, 1412 (8th Cir.
1986). However, other courts have interpreted Wolff to require specific written findings
resolving any factual disputes. See, e.g., Thompson v. Lane, 551 N.E.2d 731, 736 (Ill.
App. 1990); State ex rel. Meeks v. Gagnon, 289 N.W.2d 357, 363 (Wis. App. 1980). See
generally Guzzo, supra note 30, at 943 n.6 (listing cases).
                                           -9-                                       7284

elaboration. The written decision form also fails to include any language “incorporating
and agreeing with the incident report,”33 and the space on the form for “reasons, evidence
considered, and specific facts upon which [the] finding is based” was not filled out.
              In Saenz v. Young, the Seventh Circuit considered a disciplinary proceeding
in which a prisoner was found guilty of attempted battery.34 The court stated that a
disciplinary decision without specific findings of fact may, in some instances, satisfy the
Wolff statement requirement.35         However, the Saenz court also cautioned that
“[o]rdinarily a mere conclusion that the prisoner is guilty will not satisfy this
requirement.”36 We agree. There may be some very simple proceedings in which a
guilty verdict alone would suffice to satisfy the Wolff statement requirement.37 But in
most instances, the absence of any information regarding the basis for a hearing officer’s
decision will make it difficult for a prisoner to obtain meaningful review on appeal.38
Although it might be possible to infer a hearing officer’s reasoning process where the
charge and evidence are straightforward, there is always a possibility that the officer

       33
              See Pease-Madore, 414 P.3d at 678.
       34
              811 F.2d 1172, 1173 (7th Cir. 1987).
       35
              See id. at 1174.
       36
              Id.
       37
             Cf. Dyson v. Kocik, 689 F.2d 466, 468 (3d Cir. 1982) (concluding that if the
charge addressed in a disciplinary decision were simpler, “the generalized finding of
‘guilty of misconduct as written’ would have met the minimum requirements of
procedural due process”).
       38
              See Saenz, 811 F.2d at 1174 (“Where the charge is complex and the
[disciplinary tribunal] fails to explain its findings, the reviewing court will find it difficult
and maybe impossible to determine whether the [tribunal] on the one hand found facts
showing that the prisoner really was guilty of the charge, or on the other hand based the
finding of guilt on erroneous legal premises.”).

                                              -10-                                         7284

misunderstood the elements of a charge.39 And there is little cost associated with
requiring a hearing officer to identify what evidence is relevant, even when the answer
seems obvious.40 Where charges and evidence are straightforward, preparing a sufficient
Wolff statement should not be unduly burdensome.
             Here, we hold that the hearing officer’s bare conclusion that Huber was
guilty does not satisfy the Wolff statement requirement. Without any statement of the
reasons for the decision or the supporting evidence, it is impossible for a reviewing body
to determine whether the hearing officer correctly applied the regulation at issue.41
Furthermore, it is not clear whether the hearing officer based her guilty verdict on the
incident report, Huber’s testimony, or a combination of the two.42 Accordingly, we hold
that Huber’s right to due process was not satisfied by the disciplinary decision and audio
recording.
             Lastly, we note that DOC regulations require a disciplinary decision to
include “a statement of the disciplinary tribunal’s adjudicative and dispositive decisions


      39
             See Thompson v. Lane, 551 N.E.2d 731, 737 (Ill. App. 1990) (holding that
“a statement of reasons should be sufficient to enable a reviewing body to determine
whether [punishment has been imposed] for an impermissible reason or for no reason at
all”).
      40
             Cf. Wolff v. McDonnell, 418 U.S. 539, 565 (1974) (“[W]e perceive no
conceivable rehabilitative objective or prospect of prison disruption that can flow from
the requirement of these statements.”).
      41
             See 22 AAC 05.400(c)(15). The incident report indicated that Huber had
violated the regulation by engaging in a “demonstration or activity that involves
throwing of objects.” The disciplinary decision did not explain how he had violated the
regulation.
      42
              Cf. Saenz, 811 F.2d at 1174 (characterizing a disciplinary tribunal’s
statement that its decision was “based on all evidence” or “all evidence presented” as
“the antithesis of specifying the evidence relied on”).
                                          -11-                                      7284

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.”43 At this time,
we do not hold that a hearing officer’s failure to follow this regulation necessarily
constitutes a due process violation.44 We nevertheless expect that DOC will comply with
its regulations in the future.
         C.   The Violation Of Huber’s Right To Due Process Was Prejudicial.
              In order to reverse a disciplinary decision, we must find both that a
constitutional right was violated and that the violation prejudiced the inmate’s right to
a fair adjudication.45 Whether a party has suffered prejudice is reviewed de novo.46
              Huber first argues that he need not show that his right to a fair adjudication
was prejudiced. But we recently considered a similar argument in Pease-Madore, and
concluded that it is irreconcilable with both our precedent and the statute governing
disciplinary appeals.47
              Huber also argues that he nevertheless demonstrated prejudice. He
contends that “if the record is insufficient . . . then it would have been impossible for the
Superintendent to determine that the findings supported the decisions reached.”
              In the absence of any statement of reasons for a disciplinary decision or any
indication of the evidence supporting it, Huber could not know which evidence “formed
the basis of the hearing officer’s guilty finding” or whether the hearing officer correctly

         43
              22 AAC 05.475(a)(3).

         44
              See Pease-Madore v. State, Dep’t of Corr., 414 P.3d 671, 678 (Alaska

2018).
         45
              AS 33.30.295(b)(1).
         46
              Pease-Madore, 414 P.3d at 674.
         47
              Id. at 678; see also AS 33.30.295(b).

                                            -12-                                       7284

applied the regulation at issue.48 This precludes meaningful review of the hearing
officer’s decision. Accordingly, we conclude that the absence of a Wolff statement
prejudiced Huber’s right to a fair adjudication.
IV.    CONCLUSION
              We REVERSE the superior court’s decision affirming the decision of the
Department of Corrections. DOC may elect to hold a new hearing. Alternatively, the
DOC hearing officer may amend the decision to comply with the requirements set out
in this opinion.




       48
               Walker v. State, Dep’t of Corr., 421 P.3d 74, 82 (Alaska 2018); cf. Brandon
v. Dep’t of Corr., 865 P.2d 87, 91 (Alaska 1993) (noting that a disciplinary tribunal’s
failure to prepare written findings makes it “difficult for an inmate to know exactly what
formed the basis for the conviction, and to obtain meaningful review”).

                                          -13-                                      7284

