ORDERS:
ORDER OF REMAND
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Leo Maddox, an inmate
incarcerated with the Department of Corrections ("Department") since October 4, 1992. On September 18, 1998, Inmate Maddox
was convicted of Use or Possession of Narcotics. As a result of his conviction, Inmate Maddox lost 240 days of good time credit.
Inmate Maddox filed a grievance with the Department on October 2, 1998, and received a final decision from the Department on
January 20, 1999. On December 16, 1999, Inmate Maddox filed an action seeking review of the Department's final decision in the
Court of Common Pleas for Richland County. On March 12, 2000, Inmate Maddox 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 transcript, certified or
otherwise, of Inmate Maddox's disciplinary hearing. In addition, the Department states that there is no audiotape of Inmate Maddox's
hearing because it was conducted in excess of 180 days prior to his appeal to the Division.
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 379-380, 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
378-79, 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 369-370, 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 371, 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 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 Maddox was afforded due process in this case. It must be noted that an
uncertified transcript of Inmate Maddox's hearing audiotape, had the Department been able to provide one, would be insufficient as
well. The Division cannot rely on the accuracy of a transcript in which the indices of reliability are missing. To be reliable, a
transcript must be certified; the transcriptionist must be identified; and the date the transcript was prepared must be 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, because the Department cannot provide a certified transcript of Inmate Maddox's hearing, this case
must be remanded to the Department to conduct a contested case hearing pursuant to the Administrative Procedures Act, in which the
Department shall provide Inmate Maddox with at least 24 hours' notice of the charges against him; shall afford Inmate Maddox
counsel substitute if necessary; and shall afford Inmate Maddox the opportunity to present witnesses and evidence on his own behalf.
Accordingly, it is hereby ORDERED that 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 |
