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Administrative Law Court
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SC Administrative Law Court Decisions

Alvin Butler #210556 vs. SCDOC

South Carolina Department of Corrections

Alvin Butler #210556

South Carolina Department of Corrections




This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Alvin Butler, an inmate incarcerated with the Department of Corrections ("Department") since October 8, 1993. On December 13, 1999, Inmate Butler was convicted of possession of a weapon. As a result of his conviction, Inmate Butler lost sixty days of good time credit. Inmate Butler filed a grievance with the Department on February 25, 2000, and received a final decision from the Department on June 8, 2000. Inmate Butler filed this appeal with the Division on June 19, 2000. Inmate Butler 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 Butler'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. 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" 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 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. 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 Butler 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 Butler'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 Butler with at least 24 hours' notice of the charges against him; shall afford Inmate Butler counsel substitute if necessary; and shall afford Inmate Butler 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 Butler'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.





November 30, 2000

Columbia, South Carolina

Brown Bldg.






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