Full Opinion (html_with_citations)

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                THE SUPREME COURT OF THE STATE OF ALASKA

DAVID C. NORDLUND,         )
                           )                         Supreme Court No. S-18051
              Appellant,   )
                           )                         Superior Court No. 3AN-20-08336 CI
    v.                     )
                           )                         OPINION
STATE OF ALASKA,           )
DEPARTMENT OF CORRECTIONS, )                         No. 7633 – December 9, 2022
                           )
              Appellee.    )
                           )


               Appeal from the Superior Court of the State of Alaska, Third
               Judicial District, Anchorage, Catherine M. Easter, Judge.

               Appearances: David C. Nordlund, pro se, Anchorage,
               Appellant. Andalyn Pace, Assistant Attorney General,
               Anchorage, and Treg R. Taylor, Attorney General, Juneau,
               for Appellee.

               Before:    Winfree, Chief Justice, Maassen, Carney,
               Borghesan, and Henderson, Justices.

               MAASSEN, Justice.

I.     INTRODUCTION
               Department of Corrections (DOC) officers charged a prisoner with conduct
or language likely to interfere with the institution’s orderly administration and security.
Following a hearing, a DOC hearing officer imposed a suspended sentence of 10 days’
punitive segregation.
              The prisoner appealed to the superior court, arguing that the charge was
retaliatory and that he had been improperly denied the right to present in-person
testimony at his hearing. The superior court rejected the prisoner’s arguments and found
that DOC’s decision was supported by “some evidence,” reflecting the statutory standard
of judicial review.1
              The prisoner appeals. He argues that his due process rights were violated
by the hearing officer’s failure to allow in-person testimony and by DOC’s failure to
include in the record on appeal a surveillance video viewed at the hearing. He also
argues that the superior court erred by applying the statutory “some evidence” standard
of appellate review. Because we conclude that the prisoner has not shown that he was
prejudiced by the lack of in-person testimony at the hearing or the surveillance video’s
omission from the record on appeal, and because the superior court properly applied the
statutory standard of review, we affirm the superior court’s decision.
II.    FACTS AND PROCEEDINGS
       A.     Facts
              David C. Nordlund is a prisoner at Goose Creek Correctional Center. The
prison’s rule handbook provides that a prisoner who walks from his cell to the bathroom
and back after 10:00 p.m. may not visit with other prisoners en route or stray into other
areas of the housing unit. According to an incident report written by Officer Lambing,
one evening at 10:45 p.m. he observed Nordlund “stopping at several rooms and
knocking on the windows and doors” after leaving the bathroom. Officer Lambing
confronted Nordlund about this prohibited conduct, and, according to Officer Lambing,
Nordlund reacted by becoming argumentative.
              Officer Lambing summoned help, and two more officers, Sergeant Jones


       1
              AS 33.30.295(b)(3).

                                           -2-                                     7633
and Officer McCormick, arrived to restrain Nordlund and escort him to segregation.
According to incident reports, Nordlund refused to answer questions and instead accused
the officers of harassing him. As the officers escorted him out of the housing unit,
Nordlund allegedly “attempted to pull away and dictate the pace that [they] were
walking.” He was written up for violating a DOC regulation that prohibits “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.”2
              Nordlund requested a disciplinary hearing. A hearing advisor acting on his
behalf collected written witness statements from five individuals: two prisoners who
witnessed the incident; Lieutenant Pasa, an officer who assisted in the response; and
Officers Nelson and Vang, who assisted in escorting Nordlund to segregation. Nordlund
also requested surveillance video footage of the incident. The other prisoners’ witness
statements both denied that Nordlund had been disruptive or combative; Lieutenant Pasa
endorsed what Sergeant Jones and Officer Lambing wrote in their incident reports;
Officer Nelson recalled that Nordlund “may have had a couple of smart remarks like
inmates do” but otherwise “didn’t give us any issues on the escort”; and Officer Vang
reported that Nordlund “didn’t really give me a[n] attitude but was upset about going to
seg.”
              At the disciplinary hearing the hearing officer read the incident reports and
witness statements into the record. He then reviewed the surveillance video. It had no
sound, but as described in the hearing’s recording, the video showed Nordlund stopping
briefly at two or three other cells on his return from the bathroom. It also showed him
talking to Officer Lambing and Sergeant Jones; Nordlund asserted that the footage


        2
              22 Alaska Administrative Code (AAC) 05.400(c)(15) (2017).

                                            -3-                                      7633
showed Sergeant Jones berating him, but the hearing officer concluded that it showed the
sergeant simply asking Nordlund questions. The hearing officer summarized Nordlund’s
testimony as disputing Officer Lambing’s version of their encounter. Nordlund testified
that “[h]e walked out of the bathroom around the corner and someone else stepped out
and [Nordlund] stopped to answer him and then said good night to some other prisoners
and continued back to his room.” The hearing officer declined to hear in-person
testimony from Nordlund’s witnesses, apparently considering their written statements
sufficient.
              The hearing officer decided that Nordlund had violated the regulation
prohibiting conduct “that clearly disrupts or interferes with the security or orderly
administration of the facility.”3 He imposed 10 days of punitive segregation, all
suspended if Nordlund went 180 days without another guilty finding.
              Nordlund appealed to the prison superintendent, arguing that he had been
improperly denied the right to present in-person testimony, that the evidence did not
establish his guilt by a preponderance of the evidence, and that the write-up was in
retaliation for complaints he had made against the officers involved, some grievances he
had filed, and pending litigation against DOC. The superintendent denied the appeal4
and Nordlund appealed to the superior court.



       3
              See 22 AAC 05.400(c)(15).
       4
               The superintendent’s terse decision noted that Nordlund had been observed
“walking by other [rooms] in the Mod knocking on the windows” in violation of the
rules and that “sanctions [were] [appropriate].” We assume that this statement was in
response to Nordlund’s claim on appeal that the write-up was retaliatory. The
superintendent did not otherwise discuss Nordlund’s appeal points, but because the
superintendent affirmed the hearing officer’s decision we assume he accepted the hearing
officer’s rationale.

                                          -4-                                     7633
       B.    Court Proceedings
             In superior court Nordlund reasserted his arguments that the write-up was
retaliatory and that he had been improperly denied the right to present in-person
testimony. The court rejected these arguments, deciding that the retaliation claim was
unsubstantiated, that the hearing officer was entitled to rely on the witnesses’ written
statements and not call them in person, and that the hearing officer’s decision was
affirmable as supported by “some evidence.”5 While it is evident from the court’s
decision that it listened to the recording of the disciplinary hearing, the surveillance
video reviewed at the disciplinary hearing was not part of the record on appeal.
             Nordlund moved for reconsideration.6 He argued that the court had
misunderstood the witness testimony, that it had erred by applying the “some evidence”
standard of review, and that the surveillance video supported his case and should have
been included in the record on appeal. In response, the court corrected an immaterial
factual error7 but otherwise denied reconsideration.
             Nordlund appeals.
III.   STANDARD OF REVIEW
             We will reverse a DOC disciplinary decision only if we “find[] that the
prisoner’s fundamental constitutional rights were violated . . . and that the violation

       5
             See AS 33.30.295(b) (“A disciplinary decision may not be reversed . . . (3)
because of insufficient evidence if the [hearing record] shows that the disciplinary
decision was based on some evidence that could support the decision reached.”).
       6
             The superior court correctly treated the motion as a petition for rehearing
under the appellate rules. See Alaska R. App. P. 506(a).
       7
              The court had mistakenly said that the statements of Nordlund’s prisoner
witnesses “indicated that [they] spoke with Mr. Nordlund as he was returning to his cell
from the bathroom.” One of the inmates wrote in his statement that he witnessed the
incident, not that he spoke to Nordlund.

                                          -5-                                      7633
prejudiced the prisoner’s right to a fair adjudication.”8 “Whether an inmate has received
procedural due process is an issue of constitutional law that we review de novo.”9
“Whether a party has suffered prejudice is likewise reviewed de novo.”10 “When the
superior court acts as an intermediate appellate court in an administrative matter, we
independently review the merits of the administrative decision.”11 “A disciplinary
decision may not be reversed . . . because of insufficient evidence if the record . . . shows
that the disciplinary decision was based on some evidence that could support the decision
reached.”12
IV.    DISCUSSION
       A.     Nordlund Was Not Prejudiced By The Hearing Officer’s Refusal To
              Accept In-Person Testimony.
              DOC regulations provide that a prisoner facing discipline has the right to
“present witnesses and other evidence in the accused prisoner’s defense, . . . if written
notice of the witnesses to be called or evidence to be admitted is given to the disciplinary
tribunal no later than 24 hours before the hearing, unless good cause is shown why this
time requirement cannot be met.”13 According to DOC, Nordlund did not request in-
person testimony until the hearing itself; before the hearing he had requested only written
statements, which were duly collected by his hearing advisor and submitted at the
hearing. Nordlund does not address the requirement of pre-hearing notice in his brief.

       8
              AS 33.30.295(b)(1).
       9
              Brandon v. State, Dep’t of Corr.,
73 P.3d 1230, 1233
 (Alaska 2003).
       10
              Walker v. State, Dep’t of Corr.,
421 P.3d 74, 81
 (Alaska 2018).
       11
              Button v. Haines Borough,
208 P.3d 194, 200
 (Alaska 2009).
       12
              AS 33.30.295(b)(3).
       13
              22 AAC 05.430(a).

                                             -6-                                       7633
He argues that by denying him the opportunity to present in-person testimony, DOC
“denied him the opportunity to present an adequate defense[, because h]e was unable to
flesh out the details and preserve an adequate record for review[,] leaving the adjudicator
. . . to guess at what someone meant by a vague statement that was introduced as
evidence.” Framing this issue as one of procedural due process, Nordlund cites
Brandon v. State, Department of Corrections14 for the proposition that “inmates facing
disciplinary action [are] entitled to call witnesses and to present documentary evidence.”
              We do not need to decide in this case whether DOC’s regulatory limitations
on in-person testimony satisfy the demands of due process.15 “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.”16 In Walker v. State,
Department of Corrections, for example, a prisoner alleged a due process violation based
on the hearing officer’s failure to call the prisoner’s witnesses.17 Finding a due process
violation, we held that it was prejudicial because the prisoner’s “proposed witnesses
could have helped resolve [an important] factual dispute” by corroborating the prisoner’s
version of events.18 In Huber v. State, Department of Corrections, a prisoner alleged a
due process violation when the hearing officer’s decision contained “no information




       14
865 P.2d 87
 (Alaska 1993).
       15
              In addition to the prehearing notice requirement, 22 AAC 05.430(c) allows
the hearing officer to decline to call a prisoner’s requested witness in order “to avoid
repetitious or irrelevant evidence.”
       16
              Huber v. State, Dep’t of Corr.,
426 P.3d 969, 975
 (Alaska 2018).
       17
421 P.3d 74, 76
 (Alaska 2018).
       18
Id. at 82
.

                                            -7-                                      7633
about the evidence relied on or the reasons for the . . . decision.”19 Again finding a
constitutional problem, we found prejudice as well, because without “any statement of
reasons for [the] disciplinary decision[,] . . . [the prisoner] could not know which
evidence ‘formed the basis of the hearing officer’s guilty finding’ or whether the hearing
officer correctly applied the regulation at issue[,] . . . . preclud[ing] meaningful review
of the . . . decision.”20
               Here, however, Nordlund does not explain how in-person testimony could
have changed the result of the disciplinary hearing, citing as prejudice only a minor
factual error that played no part in the hearing officer’s decision.21 He does not say what
information he could have elicited from witnesses testifying in person that was not
already contained in their written statements. Given the lack of demonstrated prejudice,
we cannot conclude that the hearing officer’s decision of this issue violated Nordlund’s
right to procedural due process.
       B.      Nordlund Was Not Prejudiced By The Fact That The Surveillance
               Video Footage Of The Incident Was Not In The Superior Court
               Record.
               The record on appeal from an administrative agency “properly consists of
evidence that was either ‘submitted to’ or ‘considered by’ the administrative board.”22
“Physical exhibits will be retained by the agency unless specifically requested by the



       19
426 P.3d at 973-74
.
       20
Id.
 at 975 (quoting Walker,
421 P.3d at 82
).
       21
               See supra note 7.
       22
            Alvarez v. Ketchikan Gateway Borough,
28 P.3d 935, 939
 (Alaska 2001)
(quoting Oceanview Homeowners Ass’n, Inc. v. Quadrant Constr. & Eng’g,
680 P.2d 793, 798
 (Alaska 1984)).

                                            -8-                                      7633
court.”23 However, “[t]he loss of an administrative record is in itself not a violation of
due process.”24
              Nordlund argues that he was denied due process because DOC failed to
include the surveillance video of the incident in the record on appeal to the superior
court. We certainly agree that the video should have been included. But Nordlund again
fails to demonstrate that the omission of video evidence — lacking sound – prejudiced
his right to appeal discipline that was essentially for disruptive speech. The superior
court, listening to the recording of the DOC hearing, heard Nordlund’s and the hearing
officer’s different views of what the video showed them. Nordlund asserted that the
video showed him acting calmly while Officer Jones berated him, treated him like a
child, and made intimidating gestures. The superior court also heard the hearing officer’s
explanation that although he agreed the video did not show Nordlund being physically
combative, the lack of audio meant that it did not convey the participants’ words or “tone
of voice.” To the hearing officer, the corrections officers appeared to be gesturing
upstairs and asking Nordlund what happened, not berating him, and lacking an audio
record the hearing officer chose to rely on the officers’ written reports of what was said.
              Nordlund does not assert how the lack of video evidence was prejudicial
to his case, apart from arguing that it would have supported his defense in a general way.
Without audio, the video could not disprove the officers’ statements that Nordlund was
verbally “combative” and refused to cooperate with their attempts to question him. We
conclude that the agency’s failure to include the surveillance video in the record on
appeal did not violate Nordlund’s right to procedural due process.



       23
              Alaska R. App. P. 604(b)(1)(B)(iii).
       24
              Carlson v. Renkes,
113 P.3d 638, 643
 (Alaska 2005).

                                            -9­                                      7633
       C.     The Superior Court Properly Relied On The “Some Evidence”
              Standard Of Review.
              The Alaska Administrative Code describes DOC’s burden at the
disciplinary hearing: “[T]he disciplinary tribunal shall, by a preponderance of the
evidence, find whether the prisoner has committed the infraction.”25 The standard of
review on a judicial appeal is imposed by statute, AS 33.30.295(b)(3): “A disciplinary
decision [by DOC] may not be reversed . . . because of insufficient evidence if the
record . . . shows that the disciplinary decision was based on some evidence that could
support the decision reached.” (Emphasis added.) Nordlund argues that the “some
evidence” standard of appellate review violates due process. He contends that “[i]f a
decision may not be overturned if some evidence supports this decision, and [a DOC]
employee[’s] written report [alone] satisfied this standard, then the preponderance of the
evidence standard” in the Alaska Administrative Code is meaningless.
              If there is a conflict between the regulation and the statute, the statute
controls unless we determine it to be unconstitutional.26 And while we have never
explicitly addressed the constitutionality of the “some evidence” standard under Alaska
law, the U.S. Supreme Court has deemed the standard constitutional under the U.S.




       25
              22 AAC 05.420(b)(5)(D).
       26
                See Sagoonick v. State,
503 P.3d 777, 804
 (Alaska 2022) (“A regulation is
invalid if it ‘conflicts with other statutes.’ ” (quoting Manning v. State, Dep’t of Fish &
Game,
355 P.3d 530, 535
 (Alaska 2015))); Frank v. State,
97 P.3d 86, 91
 (Alaska App.
2004) (“[W]hen a regulation conflicts with a statute, it is the regulation that must yield.”
(quoting Gudmundson v. State,
763 P.2d 1360, 1363
 (Alaska App. 1988))); United States
v. Maes,
546 F.3d 1066, 1068
 (9th Cir. 2008) (“[A] regulation does not trump an
otherwise applicable statute unless the regulation’s enabling statute so provides.”).

                                           -10-                                       7633
Constitution,27 and many state courts have done the same under their state constitutions.28
The U.S. Supreme Court explained:
              Prison disciplinary proceedings take place in a highly
              charged atmosphere, and prison administrators must often act
              swiftly on the basis of evidence that might be insufficient in
              less exigent circumstances. The fundamental fairness
              guaranteed by the Due Process Clause does not require courts
              to set aside decisions of prison administrators that have some
              basis in fact. [Disciplinary decisions are] not comparable to
              a criminal conviction, and neither [is] the amount of evidence
              necessary to support such a conviction.[29]
We agree with this rationale and conclude that the “some evidence” standard satisfies the
Alaska Constitution as well.30 The superior court properly applied the “some evidence”
standard of review mandated by AS 33.30.295(b)(3).31


       27
              See Superintendent, Mass. Corr. Inst., Walpole v. Hill,
472 U.S. 445
, 455­
56 (1985).
       28
             See, e.g., Muntaquim v. Kelley,
581 S.W.3d 496
, 500-01 (Ark. 2019)
(holding prison disciplinary decision supported by “some evidence” cannot be basis of
First Amendment retaliation claim); In re Gomez, 201 Cal .Rptr. 3d 124, 133 (Cal. App.
2016); Kodama v. Johnson,
786 P.2d 417, 420
 (Colo. 1990); State v. Iowa Dist. Ct. for
Jones Cnty.,
888 N.W.2d 655, 668-69
 (Iowa 2016); May v. Cline,
372 P.3d 1242, 1245
(Kan. 2016); In re Anderson,
772 P.2d 510, 512
 (Wash. 1989).
29 Hill, 472
 U.S. at 456 (citations omitted).
       30
             Like the U.S. Supreme Court, Alaska courts have recognized the
importance of giving prison administrators “ ‘wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.’ ” State v. Avery,
211 P.3d 1154, 1157
 (Alaska App. 2009) (quoting Bell v. Wolfish,
441 U.S. 520, 547
 (1979)).
       31
              We also agree with the superior court that the evidence against Nordlund
satisfied the “some evidence” standard. The disciplinary decision was based on the
                                                                          (continued...)

                                           -11-                                      7633
V.     CONCLUSION
              The superior court’s order denying Nordlund’s appeal is AFFIRMED.




       31
               (...continued)
incident reports of two correctional officers, both of whom were present at the time of
Nordlund’s alleged misconduct. These officers’ reports were endorsed by a third officer,
and the hearing officer was able to review video evidence of the incident — which, while
it did not obviously confirm the officers’ version of the incident, did not obviously
contradict it either. In Hill, in contrast, the court upheld a disciplinary decision that was
based solely on one officer’s uncorroborated observations.
472 U.S. at 456-57
.

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