SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to a Motion for Reconsideration filed by the Respondent, South Carolina Department of Corrections ("Department"). The Department requests reconsideration of the Order of Remand in this matter, dated September 14, 2000, which had remanded this case to the Department to provide a certified transcript of Appellant's disciplinary hearing, and which further provided that a "certified transcript" is a transcript provided by a qualified, independent court reporter who was present at the hearing, reported the entire proceeding, and certified the transcript as true, accurate, and complete. By Order dated September 28, 2000, the undersigned requested that the Department provide alternative proposals to the certified transcript requirement. On October 9, 2000, the Department filed a response to the request for alternatives. Appellant did not file a response to the Motion for Reconsideration. Upon careful consideration of the Motion for Reconsideration and the Department's Response to Request for Alternatives, the Order of Remand, dated September 14, 2000, is hereby vacated and the following order substituted therefor.

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. In his Reply Brief, Inmate Holley challenges the written transcript of his disciplinary proceeding as inaccurate.

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 proceeding. Rather, the Department provided as part of the "Record on Appeal" a transcript of the hearing which does not identify its preparer, does not identify the date on which it was prepared, and contains no certification that the transcript is a true, accurate and complete transcript of the tape recording of the proceeding.

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 (S.C. 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. ALJDTR 61, 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" preceding 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 necessary.

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. Protection 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; 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. The Department must record all disciplinary proceedings at its institutions. After an appeal is assigned to an Administrative Law Judge, a department transcriptionist will transcribe the hearing. The transcriptionist will identify himself or herself, indicate that they have transcribed the hearing from a tape recording of the proceeding, and certify the transcript as true, accurate, and complete. Once the transcript is completed, it shall be reviewed by the hearing officer who presided at the hearing. The hearing officer shall also certify the transcript as true, accurate, complete, and that it constitutes the entire record of the proceedings.

2. After the tape from the hearing is transcribed, the transcriptionist must maintain the tape from each hearing for six months from the date of transcription and must certify the original tape of the proceedings to the Administrative Law Judge upon request.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

November 29, 2000

Columbia, South Carolina

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.