ORDERS:
ORDER OF REMAND
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Charlie Holley, an inmate
incarcerated with the Department of Corrections ("Department") since May 25, 1993. On July 19, 1999, Inmate Holley was
convicted of possession of contraband. As a result of his conviction, Inmate Holley lost thirty days of good time credit. Inmate
Holley filed a grievance with the Department on August 31, 1999, and received a final decision from the Department on October 6,
1999. On November 10, 1999, Inmate Holley attempted to file an action seeking review of the Department's final decision in the
Court of Common Pleas for Richland County. (1) On March 13, 2000, Inmate Holley filed this appeal with the Division.
Upon review of the file and briefs submitted in this matter, it is apparent that the Department did not provide a certified transcript of
Inmate Holley's disciplinary hearing. Rather, the Department provided as part of the "Record on Appeal" an uncertified transcript of
Inmate Holley's disciplinary hearing. The transcript does not identify the preparer, nor does it indicate whether the preparer was
present at the hearing. In addition, the transcript does not indicate the date on which it was prepared.
The Division's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 527 S.E.2d 742 (2000). In Al- Shabazz, the Supreme Court created a new avenue by which inmates could seek
review of final decisions of the Department of Corrections in "non-collateral" matters, i.e., matters in which an inmate does not
challenge the validity of a conviction or sentence, by appealing those decisions to the Division and ultimately to the circuit court
pursuant to the Administrative Procedures Act. Id. at 752, 754.
As in all cases subject to appellate review by the Division, the standard of review in these inmate grievance cases is limited to the
record presented. An Administrative Law Judge may not substitute his judgment for that of an agency unless the agency's
determination is affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the
whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1999); Al-Shabazz, 527 S.E.2d at 756; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276
S.E.2d 304 (1981). Moreover, to afford "meaningful judicial review," the Administrative Law Judge must "adequately explain" his
decision by "documenting the findings of fact" and basing his decision on "reliable, probative, and substantial evidence on the whole
record." Al-Shabazz, 527 S.E.2d at 756.
In major prison disciplinary proceedings, the record on appeal must include any transcript taken of the testimony during that
proceeding. ALJD Rule TR61, ALJD Rules 35 and 37 (ordering and filing of transcript and record on appeal); See Al-Shabazz, 527
S.E.2d at 754 (record in major prison disciplinary proceedings must include pertinent portions of the tape recording of the hearing or
a "properly transcribed record of the hearing.") The Division's use of "any"preceeding the word transcript might suggest that, at
least in certain circumstances, an uncertified transcript prepared by a Department employee who was not present at the hearing would
suffice. However, whenever an inmate's due process rights may be implicated, a certified transcript is required.
The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz, 527
S.E.2d at 750. An inmate facing the loss of sentence related credits is entitled to minimal due process to ensure that the state-created
right is not arbitrarily abrogated. Id. While due process is "flexible and calls for such procedural protections as the particular
situation demands, Stono River Envtl. Proteection Ass'n v. S.C. Dept. Of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30,
341 (1991), certain elements must be satisfied in order for procedural due process requirements to be met, including adequate
advance notice of the charges, adequate opportunity for a hearing in which the inmate can present witnesses and documentary
evidence, and an impartial hearing officer who prepares a written statement of all the evidence presented and the reasons for his
decision. Al-Shabazz, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
Without a certified transcript of the disciplinary proceedings before the Department, it is impossible to afford any "meaningful
judicial review" of the Department's decision or to determine whether Inmate Holley was afforded due process in this case. Although
the Department did provide a transcript of sorts, the Division has no basis on which to rely on the accuracy of the transcript. All
indices of reliability are missing: the transcript is uncertified; the transcriptionist is unidentified; the presence of the transcriptionist at
the hearing is not indicated; and the date the transcript was prepared is not noted. Absent these indices, the Division cannot rely on a
transcript to determine whether the Department's decision was supported by substantial evidence. Accordingly, I conclude that this
case must be remanded to the Department to provide a certified transcript of Inmate Holley's disciplinary hearing. If the Department
cannot produce a transcript complete with all of the requisite indices of reliability, the Department must conduct a contested case
hearing pursuant to the Administrative Procedures Act, in which the Department shall provide Inmate Holley with at least 24 hours'
notice of the charges against him; shall afford Inmate Holley counsel substitute if necessary; and shall afford Inmate Holley the
opportunity to present witnesses and evidence on his own behalf.
Accordingly, it is hereby ORDERED that this case be remanded to the Department to provide a certified transcript of Inmate
Holley's disciplinary hearing.
IT IS FURTHER ORDERED that if the Department cannot produce a transcript complete with all of the requisite indices of
reliability, the Department must conduct a contested case hearing pursuant to the Administrative Procedures Act as outlined above.
IT IS FURTHER ORDERED that any transcript produced and forwarded to the Division must be in conformity with the following:
1. A qualified, independent court reporter must be present at the hearing and must report the entire proceedings.
2. The court reporter who reports the proceedings must certify the transcript as true, accurate and complete.
AND IT IS SO ORDERED.
___ __________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
September 14, 2000
1. Although Inmate Holley took all necessary steps to file his action with the Richland County Court of Common Pleas, the Clerk of
Court did not assign a docket number to his action pending the Supreme Court's rehearing of Al-Shabazz v. State, infra. Inmate
Holley's pleadings were returned to him by the Clerk's office following the Supreme Court's February 14, 2000 decision. By Order
Denying Motion to Dismiss dated July 5, 2000, I acknowledged that Inmate Holley "took all possible steps" to file his appeal with the
circuit court, and, as such, the Division had jurisdiction pursuant to Al-Shabazz v. State to hear Inmate Holley's appeal. |
