ORDERS:
ORDER OF REMAND
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of George Wertz, an inmate
incarcerated with the Department of Corrections ("Department") since March 1, 1996. On July 13, 1999, Inmate Wertz was
convicted of Threatening to Inflict Harm on an Employee. As a result of his conviction, Inmate Wertz lost thirty days of good time
credit. Inmate Wertz filed a grievance with the Department on July 16, 1999, and received a final decision from the Department on
October 27, 1999. In December 1999, Inmate Wertz 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 8, 2000, Inmate Wertz filed this appeal with the Division. In his
Brief, Inmate Wertz challenges the written transcript of his disciplinary proceeding as being 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 Wertz'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, 338 S.C. 354, 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. 338 S.C. at 373, 376, 527 S.E.2d 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, 338 S.C. at 380, 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, 338 S.C. at 380, 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, 338 S.C. at
377, 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, 338 S.C.
at 370, 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, 338 S.C. at 372, 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 Wertz 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 Wertz'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 Wertz with at least 24 hours' notice of the charges against him; shall afford Inmate
Wertz counsel substitute if necessary; and shall afford Inmate Wertz 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 Wertz'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
December 5, 2000
Columbia, South Carolina
1. Although Inmate Wertz 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. By Order Denying Motion to
Dismiss dated June 26, 2000, I acknowledged that Inmate Wertz "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 Wertz's appeal. |