(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 12, 1994 -- Decided January 25, 1995
GARIBALDI, J., writing for the Court.
Gallimore McDonald is an inmate at East Jersey State Prison. In September 1992, McDonald was
charged with assaulting a person with a chair during family day at the prison's visit hall. Pursuant to Department
of Corrections (DOC) regulations, McDonald had a disciplinary hearing. The hearing officer found McDonald
guilty of the offense. The Assistant Superintendent of the prison denied McDonald's appeal.
McDonald appealed to the Appellate Division, which affirmed the actions of the hearing officer and the
Assistant Superintendent. The Supreme Court thereafter granted McDonald's petition for certification.
HELD: Subject to limited clarification and modification, the regulations of the Department of Corrections
properly implement the standards announced in Avant v. Clifford in 1975. Furthermore, prison disciplinary
hearings do not need to be tape-recorded.
1. In 1974, the United States Supreme Court established minimum federal procedural due-process requirements
for prison disciplinary proceedings. These include written notice of the alleged violation, a written statement of
the evidence relied on and the reasons for the disciplinary action, a limited right to call witnesses and to present
documentary evidence, and a right to assistance from a "counsel substitute" when the issues are too complex for
the inmate. (pp. 5-7)
2. In 1975, this Court decided Avant v. Clifford, which extended an inmate's due-process guarantees to include
an informal hearing that was structured to assure that the disciplinary findings were based on verified facts and
that the hearing officer's exercise of discretion would be based on an accurate knowledge of the inmate's actions.
Experience has shown that the disciplinary hearing process is not a rubber-stamp of the charges against an
inmate. (pp. 7-8)
3. Because DOC regulations not only comply with Avant but also exceed the requirements of the United States
Supreme Court, there is no reason to modify an inmate's right to confrontation and cross-examination.
(pp. 10-12)
4. DOC needs to improve its record keeping in respect of disciplinary hearings. The Court suggests that DOC
consider permitting inmates to submit written requests for inmate witnesses that would be attached to the record.
In addition, the Adjudication of Disciplinary Charge form should be modified to provide for an inmate or his
counsel substitute to sign off on the procedural actions taken in the matter. (pp. 12-14)
5. The Court is unable, on the record at hand, to resolve the factual dispute between McDonald and DOC's
adjudication form. The matter is remanded to the DOC to clarify and amplify the record to determine whether
McDonald did indeed request witnesses and whether he requested an opportunity to cross-examine and confront
witnesses at the original hearing. If it is concluded that he did not, the record is sufficient to establish
McDonald's guilt on the disciplinary charge. If the conclusion is that he did make those requests, he should be
permitted to call those witnesses at a rehearing. (pp. 14-15)
6. Tape-recording of the disciplinary proceedings is not required. The limited benefits of tape-recording are
outweighed by the multitude of problems imposing that requirement would create. (pp. 15-17)
7. The current regulations regarding the calling of witnesses and the confrontation and cross-examination of
witnesses at disciplinary hearings strike the proper balance between the security concerns of the prison, the need
for swift and fair discipline, and the due process rights of the inmates. DOC must, however, instruct its hearing
officers to follow its own regulations scrupulously. Strict adherence to the regulations and the adjudication form
should be sufficient to guarantee that inmates receive a procedurally-correct and fair disciplinary hearing.
(pp. 17-18)
The judgment of the Appellate Division is MODIFIED AND AFFIRMED, and the matter is
REMANDED to the Department of Corrections for further proceedings in accordance with the opinion of the
Court.
STEIN, J., joins in the Court's disposition only to the extent that it remands the matter to the Department of
Corrections for further proceedings. He would afford McDonald a new disciplinary hearing before a new hearing
officer. In addition, he disagrees with what he views as the Court's dismissive assessment of the due-process
implications of tape recording prison disciplinary proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER and POLLOCK join in JUSTICE
GARIBALDI's opinion. JUSTICE STEIN has filed a separate opinion, concurring in part and dissenting in
part. JUSTICES O'HERN and COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
2 September Term l994
GALLIMORE MCDONALD,
Appellant-Appellant,
v.
STEVEN PINCHAK,
Respondent-Respondent.
____________________________
Argued September l2, l994 -- Decided
On certification to the Superior Court,
Appellate Division.
Matthew Astore, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Acting Public Defender,
attorney; Susan Remis Silver, Deputy Public
Defender, of counsel; Ms. Silver, Susan R.
Oxford and Patricia P. Perlmutter, Assistant
Deputies Public Defender, on the briefs).
Madeleine W. Mansier, Deputy Attorney
General, argued the cause for respondent
(Deborah T. Poritz, Attorney General of New
Jersey, attorney; Joseph L. Yannotti and Mary
C. Jacobson, Assistant Attorneys General, of
counsel; Dianne M. Moratti, Patrick
DeAlmeida, and Deborah J. Gottlieb, Deputy
Attorneys General, on the briefs).
Gallimore McDonald submitted briefs pro se.
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, as in Jacobs v. Stephens, ___ N.J. ___
(l994), also decided today, Gallimore McDonald, an inmate in a
New Jersey State prison, contends that state action taken at his
disciplinary hearing violated procedural due process and the
"fairness and rightness" standard of New Jersey. Specifically,
McDonald asserts that the investigating officer and the hearing
officer failed to adhere to the Department of Corrections' own
regulations by refusing his request both to call witnesses and to
present evidence, and to confront and to cross-examine witnesses.
The hearing officer, however, asserts that McDonald never
asserted the right to call witnesses or to confront and to cross-examine witnesses. McDonald also alleges that the record
contains insufficient evidence for the hearing officer's finding
of guilt.
In our decision today, we reaffirm the standards set forth
in Avant v. Clifford,
67 N.J. 496 (l975), and in the Department
of Correction (DOC) regulations promulgated in response thereto.
However, we clarify and modify some of DOC's disciplinary
hearing practices to ensure further that DOC properly implements
both the standards that we announced in Avant and the DOC's own
regulations, and also conduct disciplinary hearings fairly. We
do not require that disciplinary hearings be tape-recorded.
Inmate McDonald was charged with assaulting a person with a weapon, in violation of N.J.A.C. l0A-4-4.l(a)*003.
At 6:00 p.m. on September 4, l992, during family day at the
East Jersey State Prison visit hall, Corrections Lt. Robert
Connell reported seeing McDonald twice lift a chair over his head
and then swing it in a downward motion. Although the visitors'
hall was crowded and Lt. Connell could not identify whom McDonald
struck, Lt. Connell reported that he heard the chair striking
flesh. Lt. Connell then yelled "fight" and moved toward the area
with other officers. Lt. Connell took the chair out of
McDonald's hands, escorted him out of the crowd, handcuffed him,
and charged him with assault with a weapon. Corrections Officer
Wadley also filed charges against McDonald, identifying inmate
Smith as McDonald's victim. The hearing officer dismissed
Officer Wadley's charges as "repetitive" of Lt. Connell's
charges.
At the hearing, McDonald, assisted by a counsel substitute,
denied that he had committed the assault. Instead, he claimed
that inmate Spivey had struck him with a chair in the back of the
head and that he had taken the chair from Spivey to defend
himself. The record includes a hospital report indicating that
McDonald was treated for a three-quarter inch superficial
laceration on his head, but does not include any medical report
for inmate Smith, McDonald's alleged victim. In support of the
hearing officer's determination and the institutional denial of
McDonald's appeal, however, Superintendent Pinchak claims that
the nurse's report supports the conclusion that McDonald had been
involved in a fight.
The only record of the disciplinary hearing is a one-page
report. In the space for inmate or counsel substitute's
statement, the following summary of McDonald's defense appears:
"I was assaulted first. I grabbed the chair. I didn't have a
chance to use it. Smith was not involved. C/S [counsel
substitute] states McDonald was the only victim." The report
indicates that inmate-witness Lamb stated, "I ain't got nothing
to say." The form had boxes for whether confrontation and cross-examination were requested and granted or denied, and lines for
the testimony or reason for denial. No boxes were checked and
"Not requested" was written on the lines.
McDonald, however, alleges that he did request the
investigating officer to interview inmate witnesses Smith,
Spivey, Lamb, Miller, and Williams. According to McDonald, the
hearing officer informed McDonald that the witnesses had refused
to comment. Superintendent Pinchak denies any knowledge of
witnesses other than Lamb, noting that McDonald did not identify
other witnesses.
The complaining officers did not testify. The hearing
officer found McDonald guilty and imposed sanctions "[t]o
maintain order in visit area and deter injuries between inmates."
The hearing officer based his determination of guilt on Lt.
Connell's report. McDonald received fifteen days detention, l80
days loss of commutation credits, l80 days administrative
segregation from inmates Spivey and Smith, and 365 days loss of
visitation privileges. Both the assistant superintendent of the
prison and the Appellate Division denied McDonald's appeals. We
granted McDonald's petition for certification, ___ N.J. ___
(1994).
In l974, the United States Supreme Court established minimum federal procedural due-process requirements for prison disciplinary proceedings in Wolff v. McDonnell, 4l 8 U.S. 539, 94 S. Ct. 2963, 4l L. Ed.2d 935 (l974). It stated "There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56, 94 S. Ct. at 2974, 4l L. Ed. 2d at 950. Although prisoners are not entitled to the same level of due-process rights as free persons, they are not "wholly stripped of constitutional protections." Id. at 555, 94 S. Ct. at 2974, 4l L. Ed. 2d at 950. However, the due-process rights of convicted persons serving time behind bars are not the same as those for persons merely charged with a crime. Id. at 556, 94 S.Ct. at ___, 41 L.Ed. 2d at 951. Under the Fourteenth Amendment, constitutional rights are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons. Ibid.
In New Jersey, the administrative rules and regulations that govern the fulfillment of due-process rights for prisoners are
balanced against the needs and objectives of the prison. In
Avant, we stated:
It must be remembered that prisons and
correctional institutions are not quiet
monasteries. Their security and order are
peculiarly dependent upon a system of swift,
stern, unmistakable and yet fair disciplinary
justice. That measure of control is as
important to protecting the right to safety
of the peaceful inmate population as to that
of the correctional staff inside and the
public outside.
Indeed, the daily interaction between inmates and prison
officials can create a tense environment that requires special
measures to ensure safety. Swift and certain punishment is one
tool prison officials use to maintain order and discourage future
misconduct by a perpetrator. Thus, a court must weigh any
expansion or refinement of long-established due-process rights of
prisoners against the safety of all the prisoners and of the
corrections staff.
Despite the need to avoid aggravation of the already high
level of confrontation inherent in a prison setting and to
maintain personal security within the system, the United States
Supreme Court in Wolff held that inmates are entitled to certain
protections. 418 U.S. at 556, 94 S.Ct. at ___, 41 L.Ed.
2d at
951. At a minimum, the United States Constitution requires that
an inmate facing disciplinary charges receive: (l) a written
notice of the alleged violation; (2) a written statement of the
evidence relied on and the reasons for the disciplinary action
taken; (3) a right to call witnesses and a right to present
documentary evidence, when doing so would not be unduly hazardous
to institutional safety or correctional goals; and (4) a right to
assistance from a counsel substitute where the inmate is
illiterate or the issues too complex for the inmate to marshal an
adequate defense. Id. at 563-70, 94 S.Ct. at ___, 41 L.Ed.
2d at
955-59.
One year after Wolff, this Court decided Avant and extended
State due-process guarantees beyond the federal constitutional
minimum. See 67 N.J. at 520. To protect an inmate's interest,
we held that DOC must structure an informal hearing to "`assure
that the [disciplinary] finding * * * will be based on verified
facts and that the exercise of discretion will be informed by an
accurate knowledge of the * * * [inmate's] behavior.'" Id. at
523 (quoting Morrissey v. Brewer,
408 U.S. 471, 485,
92 S.Ct. 2593, 2601-02,
33 L.Ed.2d 484, 496 (1972) (omissions in
original)). The hearing may be informal, but the procedures must
determine the factual accuracy of the charges.
Although McDonald alleges that inmates are routinely found
guilty of disciplinary infractions, the facts reveal the
contrary. For example, the Chief Hearing Officer of DOC
submitted an affidavit showing that of the 33,9l4 major
violations presented to the hearing officers for adjudication in
l993, 23,770 (70") had been adjudicated guilty; 4,057 (l2") had
been adjudicated not guilty; 5,659 (l6") had been downgraded by
the hearing officer to an on-the-spot correction (minor
disciplinary infraction); and 428 had been dismissed on due
process grounds. 2,216 disciplinary charges were referred by
hearing officers back to the prison staff for further
information. Moreover, a hearing officer is only one of several
people involved in the pre-hearing process; an investigating
officer who was not involved in the incident is appointed by the
Superintendent to interview the inmate, his witnesses, and
reporting staff members and to report directly to the hearing
officer in charge of each case. N.J.A.C. 10A:4-9.5. Thus, some
charges never reach the hearing stage because an investigating
officer who thinks a charge is frivolous may halt the
disciplinary process. Hearing officers therefore do not merely
"rubber stamp" officers' charges, but make a good-faith effort to
adjudicate charges fairly and impose appropriate sanctions.
In addition, hearing officers are employed by DOC, not by
the individual prison. They are rotated among the prisons. They
report directly to the Commissioner's office and not to any
correctional institution's administrative staff.
McDonald asserts that the hearing officer, or alternatively, the investigating officer, refused him the right to call witnesses and to present evidence, and refused him the right to confront and to cross-examine witnesses. He argues that those
refusals violate his procedural due-process rights and
administrative fairness.
a. Right to Call Witnesses and Present Evidence
N.J.A.C. l0A:4-9.l3(a) provides that "[i]nmates shall be
allowed to call witnesses and present documentary evidence in
their defense when permitting them to do so will not be unduly
hazardous to correctional facility safety or goals." New
Jersey's standard follows Wolff's mandate. See 4l8 U.S. at 566,
94 S. Ct. at 2979, 4l L. Ed.
2d at 956 (holding that inmate
should be allowed to call witnesses and present documentary
evidence "when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals").
New Jersey's current regulation gives the hearing officer
discretion to refuse to call witnesses, but goes beyond federal
constitutional requirements mandating that "the reasons for each
such refusal shall be separately specified on the Adjudication
Form." N.J.A.C. l0A:4-9.l3(a) (emphasis added). Although the
federal constitution does not require a contemporaneous recording
of reasons, New Jersey was one of at least twenty-nine States and
the District of Columbia that, as of l985, required that hearing
officers record reasons for refusing to hear witnesses. Ponte v.
Real, 47l U.S. 491, 5l9 & n.l9, l
05 S. Ct. 2192, 2207 & n.l9,
85 L. Ed.2d 553, 573 & n.l9 (citing N.J. Dep't of Corrections,
Disciplinary Standard 254.l8 (l984) (codified at N.J.A.C. l0A:4-9.l3(a)). Hearing officers must record their reasons for
refusing to call a witness "`whether it be for irrelevance, lack
of necessity or hazards presented in individual cases.'" Avant,
supra, 67 N.J. at 53l (quoting Wolff, supra, 418 U.S. at 566, 94
S.Ct. at 2980, 41 L.Ed.
2d at 957). For courts properly to
review prison disciplinary proceedings, the record must show that
prison officials observed mandatory procedural safeguards.
b. Right to Confrontation and Cross-Examination
N.J.A.C. l0A:4-9.l4(a) provides that "if requested," the
inmate shall be provided the opportunity for confrontation and
cross-examination "where the Adjustment Committee or Disciplinary
Hearing Officer deems it necessary for an adequate presentation
of the evidence, particularly when serious issues of credibility
are involved." Subsection (b) of that same provision further
provides that a Disciplinary Hearing Officer or Adjustment
Committee may refuse confrontation and cross-examination when
they "would be unduly hazardous to correctional facility safety
or goals."
That State regulation provides more protection than the
federal constitution. In interpreting the Fourteenth Amendment,
the United States Supreme Court determined that requiring cross-examination and confrontation as a matter of course would lead to
the "considerable potential for havoc inside the prison walls"
and would result in longer, possibly unmanageable, proceedings.
See Wolff, supra, 4l8 U.S. at 567, 94 S. Ct. at 2980, 4l L. Ed.
2d at 957. Thus, under the federal constitution, "adequate bases
for decisions in prison disciplinary cases can be arrived at
without cross-examination," and whether to permit cross-examination is left to the "sound discretion" of the prison
officials. Id. at 568, 94 S. Ct. at 2980, 4l L. Ed.
2d at 958.
Going beyond the minimum protections provided under the
federal constitution, this Court in Avant determined that under
the New Jersey Constitution, cross-examination and confrontation
must be available to the inmate when "necessary for an adequate
presentation of the evidence, particularly when serious issues of
credibility are involved." 67 N.J. at 530. Expanding New
Jersey's protection of inmates, this Court in Avant amended the
standards "by requiring that in those cases where the Committee
`deems' confrontation and cross-examination `[un]necessary for an
adequate presentation of the evidence' the reasons for such
denial be entered in the record and made available to the
inmate." Id. at 532 (quoting Standard 254.274) (alterations in
original). This New Jersey requirement exceeds those of most
states, which often do not provide for a written explanation from
the hearing officer of his or her denial of cross-examination and
confrontation to an inmate. Columbia Human Rights Law Review, A
Jailhouse Lawyer's Manual 509 (3d 1992).
This Court determined that such a requirement represented a
"more precise accommodation of the competing interests and would
afford greater flexibility than would an absolute bar to or
requirement of confrontation and cross-examination." Avant,
supra, 67 N.J. at 532. Indeed, requiring that prison officials
record reasons for not permitting an inmate to confront or cross-examine witnesses deters administrative arbitrariness. Case
Comment, "Prisoners' Rights -- New Jersey Fairness and Rightness
Standard -- Procedural Requirements Delineated for Prison
Disciplinary Hearings,"
29 Rutgers L. Rev. 729, 752 (1976).
Furthermore, compliance with the requirement would permit
reviewing authorities to determine whether or not there had been
a proper exercise of discretion. See id. at 752-53 n.134.
Because N.J.A.C. l0A:4-9.l4 not only complies with Avant but
exceeds the requirements of Wolff, we find no need to expand or
even to modify an inmate's right to confrontation and cross
examination.
We do find, however, a need for DOC to improve its recordkeeping. Reviewing bodies must be able to examine a record of disciplinary proceedings. Subsequent to oral argument, we were provided with an amended Adjudication of Disciplinary Charge form, approved by DOC's Commissioner. Specifically, this amended form provides space for a hearing officer's recordation and for an inmate's agreement that he had been given twenty-four hours between notice of the charge and a hearing, that he requested witnesses, and whether those witnesses had been called. Below the summary of those actions, the defendant inmate or his counsel substitute would sign to indicate that the information set forth
on the Adjudication of Disciplinary Charge form accurately
reflects what took place at the hearing.
The amended form delineates the choices open to defendant
inmates and provides ample space for the hearing officer to
explain what was or was not done. The form provides that
disciplinary hearing officers record in writing their reasons for
refusing an inmate's request to call witnesses and present
evidence and for refusing an inmate's request to confront and
cross-examine witnesses. Although not required, we suggest that
DOC consider the feasibility of allowing defendant inmates to
submit written requests for inmate witnesses to be attached to
the record. All of these changes in the form used by DOC will
result in improved recordkeeping. Most important, requiring the
hearing officer to obtain a defendant inmate's signature or his
counsel substitute's signature on the adjudication form with
regard to those procedural issues will avoid factual disputes
similar to those in this case and Jacobs, supra, also decided
today, from being decided at such a late date. Instead, the
disputes can be resolved at one hearing. The amended
adjudication form will achieve two goals: the creation of a
record that obviates the need for tape- or video-recording, and
the limitation of appealable issues solely to those included in
the record.
In this case McDonald claims that the disciplinary hearing
officer told him that his requested witnesses had refused to
comment, while the assistant superintendent who reviewed the
original determination denies having any knowledge of McDonald's
requested witnesses, other than inmate Lamb. McDonald's counsel
substitute claims that he did request an opportunity to cross-examine those who testified, including inmate Smith and
Corrections Officer Wadley. However, the adjudication form bears
the words "not requested" near the entry for cross examination,
and no written evidence of explanation for such refusal exists.
Such murky disclosures at this stage of appellate review
illustrates the need for creation of a clear written record at
each disciplinary hearing.
From the record at hand, we are unable to resolve the
discrepancy between McDonald's claims that the hearing officer
denied his request to call other witnesses and to confront
adverse witnesses, and the fact that the adjudication form's lack
of reflection of any such claim. Despite the dissent's assertion
that the original hearing officer cannot be an impartial
adjudicator on remand and that McDonald and his substitute-counsel's undocumented claims about the partiality of the system
must be accepted as true, see post at (slip op. at 6 & 7), we
need not decide whether that remand to the original hearing
officer would result in a "substantial likelihood of prejudice."
N.J.A.C. 10A:4-11.6(b). Rather we point to McDonald's
substitute-counsel's affidavit to this Court to show that it was
the investigating officer, not the hearing officer, who failed to
interview witnesses that McDonald allegedly requested.
At the disciplinary hearing, . . . the
hearing officer,. . . read the statement of
inmate Lamb from the investigating sergeant's
report. The investigating sergeant failed to
interview witnesses Smith and Spivey. Had
the sergeant interviewed the inmates, the
hearing officer would have read their names
from the sergeant's report, even if the
inmates had refused to give any statement.
We remand McDonald's case to DOC to clarify and amplify the
record to determine whether McDonald did indeed request witnesses
and whether he requested an opportunity to cross-examine and
confront witnesses at the original hearing. If the
Superintendent or his/her designee determines that allowing the
same hearing officer to preside over that hearing would create a
"substantial likelihood of prejudice" to McDonald, they may
designate a new hearing officer. N.J.A.C. 10A: 4.11.5 & .6.
After the remand, if it is concluded that McDonald did not
request witnesses or an opportunity to cross-examine and confront
witnesses, we find that the evidence now in the record is
sufficient to establish McDonald's guilt. However, if McDonald
did make those requests, then he should be given the opportunity
to attempt to establish his innocence by calling those witnesses
at a rehearing.
McDonald also urges this Court to require that disciplinary proceedings be tape-recorded to provide a more complete record
for administrative and judicial review. The United States
Supreme Court in Wolff did not mandate tape-recording under the
Fourteenth Amendment. Current DOC regulations also do not
require that disciplinary hearings be tape-recorded in New
Jersey. Because this Court approved disciplinary regulations
that were silent on the question of taping, the Appellate
Division has determined that the State constitution does not
require verbatim recording. Negron v. New Jersey Dep't of
Corrections,
220 N.J. Super. 425, 431-32 (App. Div. l987). This
Court can require tape-recording only if failure to tape-record
disciplinary proceedings violates state constitutional notions of
"fairness and rightness." See Avant, supra, 67 N.J. at 527.
Tape-recording or video-taping of disciplinary hearings
produces a multitude of problems such as cost, burden, and delay.
The only benefit of such documentation would be a lengthy but
accurate record of what happened at the hearing. However, that
record would not include the hearing officer's investigation
prior to the hearing or his discussions with identified
witnesses. Hence, aspects of that hearing crucial to a thorough
record would be absent despite the expense and burden of the
taping. Moreover, the amended Adjudication of Disciplinary
Charge form and the Court's prior suggestions for the refinement
of that form will achieve many of the same purposes as would
tape-recording. Infra at ___ (slip op. at l2-l3). Although
prison officials may choose to tape-record or video-tape
disciplinary hearings, this Court will not require them to do so
because neither New Jersey's "fairness and rightness" standard
nor procedural due-process standards mandates tape-recording.
VI
In this case and Jacobs v. Stephens, supra, ___ N.J. ___,
also decided today, we do not grant inmates greater procedural
protections than we gave them in Avant, but rather reaffirm and
reinforce the procedural protections already recognized in Avant
and already provided by DOC's regulations. The current
regulations regarding the calling of witnesses and the
confrontation and cross-examination of witnesses at disciplinary
hearings strike the proper balance between the security concerns
of the prison, the need for swift and fair discipline, and the
due process rights of the inmates. If followed scrupulously, the
regulations would likewise provide a proper record for review of
disciplinary proceedings.
DOC must instruct hearing officers to follow its own
regulations more carefully. Hearing officers must be instructed
to complete the amended Adjudication of Disciplinary Charge form
carefully. Strict adherence to the regulations and the
adjudication form should be sufficient to guarantee that inmates
receive a procedurally-correct and fair disciplinary hearing.
That inmates receive their minimum procedural protections is
important to furthering the rehabilitative goal of correctional
facilities. Over twenty years ago, this Court recognized that
procedural protections were due an inmate under the federal and
State due process-clauses. We now reinforce those procedural
protections.
We modify and affirm the judgment of the Appellate Division
and remand to DOC for further proceedings in accordance with this
opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER and POLLOCK join
in JUSTICE GARIBALDI's opinion. JUSTICE STEIN has filed a
separate concurring and dissenting opinion. JUSTICES O'HERN and
COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
2 September Term 1994
GALLIMORE MCDONALD,
Appellant-Appellant,
v.
STEVEN PINCHAK,
Respondent-Respondent.
STEIN, J., concurring in part and dissenting in part.
I join the Court's disposition of this appeal only to the extent that it remands the matter to the Department of Corrections (DOC) for further proceedings. I write separately primarily to note my disagreement with that portion of the Court's opinion that limits the scope of the remand merely to a determination whether inmate McDonald's due-process right to call witnesses on his behalf and to confront and question adverse witnesses was violated. In my view, the remand should afford McDonald a new disciplinary hearing, and the prior determination should be vacated. Nor can I join that aspect of the Court's disposition that does not prohibit the same DOC hearing officer from redetermining factual matters concerning the conduct of the hearing that that hearing officer previously determined and noted in his report. Finally, although I agree with the Court's
conclusion that this record would not support a determination
requiring tape recording of prison-disciplinary hearings, I
strongly disagree with the Court's dismissive assessment
concerning the due-process implications of tape recording prison
disciplinary hearings. Ante at ___ (slip op. at 16).
Inmate McDonald was charged with assaulting a fellow inmate
with a chair. Two corrections officers observed the incident and
filed reports. Officer Connell's report stated that while he had
been on duty at the East Jersey State Prison visit hall he had
seen McDonald twice lift a chair over his head and swing it
downward. Connell could not identify who was hit by the chair,
but heard "the impact of the chair hitting flesh." Officer
Watley filed a similar report, noting that McDonald had struck
inmate Smith with the chair. McDonald's version of the incident
was that an inmate named Spivey had hit him with a folding chair
and that he had grabbed the chair from Spivey to avoid being hit
a second time. The record confirmed that McDonald had been
treated for a three-quarter-inch superficial laceration on his
head, but no evidence was adduced suggesting that inmate Smith,
McDonald's alleged victim, had sustained any injuries.
A handwritten report of the adjudication of the charges
against inmate McDonald, signed by Hearing Officer Donald Mee,
Jr., constitutes the only record of the disciplinary hearing.
According to that report, no witnesses testified against
McDonald, and McDonald testified on his own behalf. Inmate Lamb,
who was called as a witness, stated: "I ain't got nothing to
say." The evidence against McDonald consisted of the reports of
Lt. Connell and Officer Watley, a nurse's report of McDonald's
injury, and the original Disciplinary Report that summarized the
charges against McDonald. The portion of the adjudication report
entitled "Confrontation/Cross-Examination requested" contains the
Hearing Officer's handwritten notation "not requested." The
report states that the Hearing Officer relied on Lt. Connell's
report in concluding that McDonald was guilty as charged.
According to both McDonald and his counsel-substitute, they
requested that the investigating officers obtain statements from
inmates Spivey, Smith and Lamb, apparently contemplating that
such statements would also be offered in evidence. The Hearing
Officer informed them that only inmate Lamb's statement had been
obtained. In addition, McDonald's counsel-substitute contended
that he had requested permission to call inmate Smith as a
witness, and to cross-examine officer Watley concerning his
report that he had observed McDonald hit Smith with the chair.
According to McDonald and his counsel-substitute, the Hearing
Officer denied both requests.
As noted by the majority, the hearing officer found McDonald
guilty and imposed as sanctions fifteen days detention, 180 days
loss of commutation credits, 180 days administrative segregation
from both inmate Smith, the alleged victim, and inmate Spivey,
whom McDonald claimed to have been the assailant, and 365 days
loss of visitation privileges. Both the assistant superintendent
of the prison and the Appellate Division affirmed the Hearing
Officer's determination. Ante at ___ (slip op. at 5).
The majority acknowledges that inmates are permitted to call
witnesses and present documentary evidence at disciplinary
hearings "'when permitting them to do so will not be unduly
hazardous to correctional facility safety or goals.'" Ante at
___ (slip op. at 9) (quoting N.J.A.C. 10A:4-9.13(a)). If a
hearing officer denies a request to call witnesses, the
regulations require that "the reasons for each such refusal shall
be separately specified on the Adjudication Form." N.J.A.C.
10A:4-9.13(a).
In addition, the regulations afford inmates the right of
confrontation and cross-examination "where the * * * Disciplinary
Hearing Officer deems it necessary for an adequate presentation
of the evidence, particularly when serious issues of credibility
are involved." N.J.A.C. 10A:4-9.14(a). The Hearing Officer is
authorized to deny such a request if confrontation and cross-examination "would be unduly hazardous to correctional facility
safety or goals." N.J.A.C. 10A:4-9.14(a). In Avant v. Clifford,
67 N.J. 496 (1975), we held that in disciplinary proceedings in
which the right of confrontation or cross-examination was denied,
the reasons for such denial must be entered on the record and
communicated to the inmate. 67 N.J. at 532.
As noted, the Hearing Officer's report conflicts with the
assertion by McDonald and his counsel-substitute that they
requested the right to cross-examine Officer Watley and that the
request was denied by the Hearing Officer. The adjudication
report prepared and signed by the Hearing Officer indicates that
no request was made to confront or cross-examine any witnesses,
nor does the report contain any notation either confirming or
contradicting McDonald's contention that he requested that inmate
Smith be produced to testify at the hearing.
The majority opinion concedes that the Court is unable to
resolve "the discrepancy between McDonald's claim that the
hearing officer denied his request to call other witnesses and to
confront adverse witnesses and the fact that the adjudication
form reflects no such claim." Ante at ___ (slip op. at 14).
Accordingly, the Court remands the matter to the DOC to resolve
that conflict.
In my view, the Court's remand to DOC is flawed in at least
two respects. To the extent that the remand does not preclude
the original Hearing Officer from presiding at the rehearing, the
remand would appear to violate the DOC's own regulations as well
as the basic due-process requirement of an impartial hearing
tribunal. Because no witness other than McDonald testified at
the original hearing, only the original Hearing Officer could
corroborate his own notation on the Adjudication Report that no
request was made to cross-examine witnesses, and only that
Hearing Officer could refute McDonald's contention that he
requested that inmate Smith be produced as a witness. Thus, if
the matter were remanded to the same Hearing Officer, he would be
required to resolve fact issues concerning which his own
testimony and recollection would be indispensable. The DOC's
regulations prohibit rehearings before the original "hearing
body" if there is a "substantial likelihood of prejudice."
N.J.A.C. 10A:4-11.6(b). Moreover, the requirement of a neutral,
unbiased adjudicatory decision maker is a basic tenet of due
process. See II Kenneth Culp Davis and Richard J. Pierce, Jr.,
Administrative Law Treatise § 9.8 (3d ed. 1994); see also,
N.J.A.C. 10A:4-8.3(d), (restricting DOC staff member from serving
on committee conducting disciplinary hearing if member witnessed
incident under consideration); Avant, supra, 67 N.J. at 525-28
(suggesting modification of DOC standards to insure impartiality
of disciplinary-hearing tribunal). Because the original Hearing
Officer cannot be impartial in resolving the conflict between his
notations on the Adjudication Report and the recollection of
McDonald and his counsel-substitute, he cannot conduct
impartially a rehearing ordered to adjudicate that conflict.
Moreover, the Court errs in assuming that a remand, even
before a new hearing officer, could provide a reliable resolution
of the conflict concerning what occurred at McDonald's
disciplinary hearing on September 8, 1992. The affidavit of
McDonald's counsel-substitute alleges that hearing officers
invariably deny requests to call or cross-examine witnesses and
routinely fail to record on the Adjudication Report that any such
requests were made. That allegation suggests the possibility of
a widespread practice of refusing requests for witnesses or for
cross-examination in prison-disciplinary hearings, even if
meritorious. See, e.g., Walker v. Bates,
23 F.3d 652, 656 (2d
Cir. 1994) (holding that because hearing officer summarily
refused requests by inmate to call witnesses at disciplinary
hearing, "[t]he denial of an inmate's right to call witnesses
under circumstances such as those revealed here, constitutes,
without more, a compensable constitutional due process
violation"); Moye v. Selsky,
826 F. Supp. 712, 718 (S.D.N.Y.
1993) (finding that hearing officer's refusal to permit inmate to
call witness at disciplinary hearing "was not logically related
to any correctional goals" and hence deprived inmate of due
process).
Because DOC maintains no record of such hearings other than
the report prepared by the Hearing Officer, reliable resolution
of conflicts such as the one presented by this record becomes
highly unlikely. Close to two and one-half years have elapsed
since the disciplinary hearing in question. The Court's
assumption that the original Hearing Officer accurately could
recall the events at the prior hearing simply is unrealistic.
Inevitably, an officer presiding at a remand hearing would have
to decide whether the original adjudication report was more
reliable than the recollection of McDonald and his counsel-substitute. In that context, the remand ordered by the Court is
little more than a formality, with a predictable outcome: the
chance that McDonald's recollection will be found more credible
than that of the original hearing officer ranges from slim to
none. Under the circumstances, the Court's uncertainty over
whether McDonald's due-process rights adequately were protected
should be resolved in his favor, and the disciplinary
determination adverse to him should be vacated, without prejudice
to DOC's right to retry the charges before a new hearing officer.
Finally, based on the record before us the Court perceives
"a need for DOC to improve its recordkeeping." Ante at ___ (slip
op. at 12). Subsequent to oral argument, we were provided with a
revised report form for prison-disciplinary hearing
adjudications, approved by DOC's Commissioner. The revised form
affords the inmate or counsel-substitute a designated space
either to acknowledge that the Hearing Officer's account of the
proceeding is accurate, or to state the reasons for disputing the
Hearing Officer's account of the proceedings. The Court
anticipates that the revised form will avoid repetition of the
issues presented by this appeal. Ante at ___ (slip op. at 13).
Moreover, the Court notes that the revised form will achieve
"many of the same purposes as would tape-recording." Ante at ___
(slip op. at 16). It characterizes tape recording of
disciplinary hearings as a process producing "a multitude of
problems such as cost, burden and delay," and describes its only
benefit as "a lengthy but accurate record of what happened at the
hearing." Ibid. Accordingly, the Court concludes that tape
recording of prison-disciplinary hearings is permissible but not
required to address due-process concerns.
In my view, the Court's conclusion concerning DOC's
obligation to tape record disciplinary proceedings is unnecessary
to resolve this appeal, and does not address adequately the
competing considerations that should inform any such
determination. Surely this record does not establish that DOC's
failure to tape record disciplinary hearings deprived McDonald or
other inmates of constitutionally protected rights, and the Court
has acknowledged that other procedures, such as the revised
adjudication form, may adequately address the procedural
shortcomings highlighted by McDonald's appeal. Whether DOC's
failure to provide a tape-recorded record of disciplinary
proceedings so adversely restricts other inmates' access to
appellate review should await resolution on the basis of an
adequate record.
Although prison-disciplinary proceedings are not subject to
the provisions of the Administrative Procedure Act (APA),
N.J.S.A. 52:14B-1 to -15, see Zeltner v. New Jersey Dep't of
Corrections,
201 N.J. Super. 195, 199-200 (App. Div.), certif.
denied,
102 N.J. 299 (1985), the APA's provisions requiring a
transcribed record of proceedings in all contested cases at
either party's request reflects the indispensability of a
verbatim record in providing appellate review of administrative
hearings. See N.J.S.A. 52:14B-9; N.J.A.C. 1:1-8.2. The APA's
provisions also apply to all other state agencies except for the
State Board of Parole, the Public Employees Relations Commission,
and the Division of Workers' Compensation. See N.J.S.A. 52:14F-8. In Ohio Bell Telephone Co. v. Public Utilities Commission,
301 U.S. 292, 302-303,
57 S. Ct. 724, 729-30,
81 L. Ed. 1093,
1100-1101 (1936), Justice Cardozo acknowledged that the absence
of an adequate record thwarts effective appellate review of
administrative proceedings:
From the standpoint of due process -- the
protection of the individual against
arbitrary action -- a deeper vice is this,
that even now we do not know the particular
or evidential facts of which the Commission
took [] notice and on which it rested its
conclusion. Not only are the facts unknown;
there is no way to find them out.
* * * *
* * * To put the problem more
concretely: how was it possible for the
appellate court to review the law and the
facts and intelligently decide that the
findings of the Commission were supported by
the evidence when the evidence that it
approved was unknown and unknowable?
Although the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 564-65, 94 S. Ct. 2963, 2979, 41 L. Ed.2d 935, 956 (1974), required only a written record by the finder of fact of the evidence relied on and the reasons for the disciplinary action, other courts have concluded that a transcript of the record of prison-disciplinary hearings is necessary to assure adequate
appellate review. In McGinnis v. Stevens,
543 P.2d 1221 (1975),
the Supreme Court of Alaska held that tape recording of prison
disciplinary proceedings was required by the Alaska Constitution.
The Court observed:
In our view, the requirement of a verbatim
record will help insure that administrators
faced with possible scrutiny by state
officials and the public, and even the courts
when it is asserted that fundamental
constitutional rights may have been abridged,
will act fairly. A verbatim record of the
proceedings will furnish a more complete and
accurate source of information than the
"written statement" requirement of Wolff,
will assist in facilitating a more
intelligent review of the disciplinary
proceeding, and moreover, the use of
cassettes and other means of recording
hearings may well prove less burdensome than
the written statement requirement.
In addition, a number of other states have adopted regulations mandating that prison-disciplinary hearings be tape recorded. See, e.g., Colo. Code Regs., DOC Regulation 203-1(h)(1) (1984); D.C. Mun. Regs. tit. 28, § 511.5 and -.6 (1987); Mass. Regs. Code tit. 103, § 430.12(3) (1993); New Hampshire Department of Corrections, Policy and Procedure Directive, Ref. No. EC2-4085 & C2-4177 to -4196, IV D.11 (July 17, 1992); N.Y. Comp. Codes R. & Regs. tit. 7, § 254.6(b) (1994); Vermont Department of Corrections, Policy Directive 410.03 E.8.e. (August 15, 1994). Those regulations undoubtedly reflect a recognition by those states that tape recording of prison-disciplinary hearings facilitates inmates' access to the courts to seek appellate review. Federal cases reviewing prison- disciplinary proceedings
have recognized that "'the constitutional guarantee of due
process of law has as a corollary the requirement that prisoners
be afforded access to the courts in order to challenge unlawful
convictions and to seek redress for violations of their
constitutional rights.'" Souza v. Travisono,
498 F.2d 1120, 1123
(1st Cir.) (quoting Procunier v. Martinez,
416 U.S. 396, 419,
94 S. Ct. 1800, 1814,
40 L. Ed.2d 224, 243 (1974).
If available, a transcript of McDonald's prison-disciplinary
hearing would have definitively resolved the issues that concern
the Court -- whether McDonald exercised his right to call inmate
Smith and to cross-examine officer Watley, and whether the
Hearing Officer denied those requests. In the companion case,
Jacobs v. Stephens, ___ N.J. ___ (1995), also decided today, a
transcript would have resolved the question the Court was unable
to determine -- whether Jacobs was informed of his right to
confrontation and cross-examination. Id. at ___ (slip op. at
12). Because this record does not inform us adequately of the
extent to which inmates' access to effective appellate review of
prison- disciplinary proceedings generally is inhibited by the
lack of a transcript, I would not decide whether tape recording
of prison- disciplinary proceedings is mandated by the due-process guarantees afforded by our State Constitution. Moreover,
the issue might more productively be first addressed by DOC. The
undesirability of basing review of prison-disciplinary cases on a
written summary of the evidence prepared by the Hearing Officer
that decided the matter is self-evident: the Hearing Officer's
summary inevitably will reflect his or her view of the evidence
and may tend to tilt the record to favor the Hearing Officer's
disposition. From the standpoint of appellate review, the
advantage of assuring the availability of a verbatim transcript
prepared from a tape-recorded hearing is so clear as to be
indisputable. On this flimsy record, the majority opinion's
implication that the cost and burdens of tape-recording prison
disciplinary hearings may outweigh the benefits of a verbatim
transcript is both unwarranted and unsubstantiated. In my view,
DOC would be well advised to consider whether the reliability of
the review afforded by tape-recorded hearings does not outweigh
concerns based on their cost and any administrative burden that
they entail.
I would vacate the DOC's determination that McDonald was guilty of the filed charges, as well as the sanctions imposed, but would remand the matter to the DOC to permit the charges to be retried before a different hearing officer.
NO. A-2 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Superior Court, Appellate Division
GALLIMORE McDONALD,
Appellant-Appellant,
v.
STEVEN PINCHAK,
Respondent-Respondent.
DECIDED January 25, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING & DISSENTING OPINION BY Justice Stein
DISSENTING OPINION BY
CHECKLIST
MODIFY,
AFFIRM &
REMAND
REVERSE
&
REMAND
CHIEF JUSTICE WILENTZ
X
JUSTICE HANDLER
X
JUSTICE POLLOCK
X
JUSTICE O'HERN
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JUSTICE GARIBALDI
X
JUSTICE STEIN
X
JUSTICE COLEMAN
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