May v. Cline

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,095

WILLIAM MAY,
Appellee,

v.

SAM CLINE,
Appellant.

SYLLABUS BY THE COURT

1.
Due process is satisfied in the context of an inmate disciplinary proceeding if there
is any evidence in the record, even evidence which could be characterized as meager, that
could support the conclusion of the disciplinary authority. Due process does not require
that the evidence preclude other possible outcomes or conclusions, only that the evidence
provides some support for the conclusion reached by the disciplinary authority such that
the decision is not arbitrary.

2.
The interpretation of a regulation is a question of law. Courts owe no deference to
an agency's interpretation of its own regulations and exercise unlimited review over such
questions.

3.
K.A.R. 44-12-301 clearly and unambiguously makes the absence of self-defense
an element of the offense itself. Therefore, to support an alleged violation of K.A.R. 44-
12-301 the disciplinary authority must provide some evidence to disprove self-defense.

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 Review of the judgment of the Court of Appeals in an unpublished opinion filed April 25, 2014.
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed June 17, 2016.
Judgment of the Court of Appeals reversing and remanding the district court is reversed. Judgment of the
district court is affirmed.

Jon D. Graves, of Kansas Department of Corrections, argued the cause and was on the briefs for
appellant.

Shawn P. Lautz, of Lautz Law, of Wichita, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: William May was an inmate at the Larned Correctional Facility
when he was involved in an altercation with another inmate, Jason Dale. May was
ultimately disciplined for violating K.A.R. 44-12-301, the regulatory prohibition on
fighting. After exhausting his administrative remedies, May sought relief through this
K.S.A. 60-1501 petition filed against Sam Cline, the warden of the Hutchinson
Correctional Facility where May is currently incarcerated. May alleged his due process
rights were violated because the finding by the hearing officer that May violated K.A.R.
44-12-301 was not supported by any evidence. The district court agreed with May, but on
appeal, the Court of Appeals reversed the district court. We granted May's petition for
review, and we reverse the Court of Appeals and affirm the district court.

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 FACTUAL AND PROCEDURAL BACKGROUND

K.A.R. 44-12-301 states:

"Fighting or other activity which constitutes violence, or which is likely to lead
to violence, is prohibited unless such activity is in self-defense. Violation of this rule
shall be a class I offense."

The facts as established during the hearing are not in dispute, though the legal
significance of those facts is contested by the parties as a matter of law. After the
altercation between May and Dale had already begun, correctional officer Tracy Guesnier
arrived on the scene. Guesnier's disciplinary report states:

"On 11-9-2012 I COI Guesnier Tracy was escorting inmates from west unit to LSH main
cafeteria . . . . I noticed two inmates wrestling and throwing punches at each other . . . . I
yelled several times to break it up, but neither inmate separated and punches were still
being thrown. Both inmates wrestled off the sidewalk to the west. Again I was telling
both inmates to stop and that I would use the pepper spray. Inmate continued wrestling
where from my advantage Dale was the aggressor and his face was towards me I then
used two 1 second burst and inmates were not separating I then used another 1 second
spray. Demands were still given to separate and finally Dale said I am done. Both
inmates were handcuffed and escorted to central unit. Inmates were Jason Dale #100165,
William May #96951."

At the disciplinary hearing, Guesnier testified his report was accurate and truthful.
Guesnier said that he could not tell who was fighting at first and that Dale "seemed to be
the aggressor." Even after several loud commands to break it up and the use of pepper
spray, the fight did not stop until Dale said "'I'm done.'" Guesnier was asked whether he
could tell if May was defending himself and responded, "'No, the fight was already going
when I noticed it I have no idea who started it.'"

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 May testified that he was attacked by Dale, and he did not know why. The hearing
officer's report describes May as stating that he was "just trying to hold on until help
arrived but every time [May] would let up Dale would come back at him." The hearing
officer concluded that "with no evidence to prove self-defense" May would "be looked
upon as being involved in a fight."

Upon this evidence, the hearing officer concluded:

"Based on the preponderance of this evidence it is believed to be more true than not that
inmate May was involved in violence and that he was involved in a physical altercation
with inmate Dale. That there is no evidence available to show that inmate May was
simply defending himself. Therefore a finding of guilty was rendered."

The Reno County District Court conducted a hearing on May's K.S.A. 60-1501
petition and ultimately issued an order reversing the hearing panel's findings as follows:

"[T]he hearing officer could and should have recognized that the respondent had the right
of self-defense unless the preponderance of evidence showed that the other inmate was
not the aggressor. The government had the burden of proof. Likewise, as to whether the
petitioner failed to stop fighting when ordered to do so, the government had the burden of
proof to show that the respondent unreasonably continued to fight when he could have
complied with the order without reasonable belief that he would receive further blows
from the other inmate. The hearing officer made no attempt to evaluate the
reasonableness of the petitioner's stated belief that he was the victim of an aggression by
the other inmate and entitled to use self-defense. The hearing officer made no attempt to
evaluate whether the petitioner unreasonably failed to stop fighting when he could have
done so safely. Therefore, the hearing officer could not have reasonably found the
petitioner guilty. The conviction is therefore reversed."

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 Cline appealed this ruling, and the Court of Appeals reversed, holding:

"It is clear from the record that there was some evidence to support the hearing
officer's finding that May was involved in a fight. As was the case in Miller [v. McKune],
38 Kan. App. 2d [810,] 816, [174 P.3d 891 (2006),] the question of self-defense was an
issue before the hearing officer because May asserted that he acted in self-defense at the
hearing. But, by the decision of guilty of fighting being reached by the hearing officer, it
is clear the existence of this defense was resolved against May. Contrary to the findings
by the district court, there was no evidence regarding who started the fight. KDOC was
not obligated to disprove self-defense, and the hearing officer as the factfinder in a prison
disciplinary proceeding resolved this issue." (Emphasis added.) May v. Cline, No.
110,095, 2014 WL 1708027, at *3 (Kan. App. 2014) (unpublished opinion).

We granted May's petition for review, and we now reverse the judgment of the
Court of Appeals and affirm the district court's ruling.

ANALYSIS

Disciplinary decisions concerning inmates in the custody of the State are generally
not subject to judicial review. K.S.A. 2015 Supp. 77-603(c)(2) (exempting discipline of
persons in the custody of the Secretary of Corrections from the Kansas Judicial Review
Act). To obtain relief, an inmate must demonstrate a constitutional violation. Here, the
lower courts properly construed May's claim as arising under the Due Process Clause of
the Fourteenth Amendment to the United States Constitution given that he claims a lack
of evidence to support the alleged violation. "The requirements of due process are
satisfied if some evidence supports the decision by the prison disciplinary board . . . ."
Sammons v. Simmons, 267 Kan. 155, Syl. ¶ 3, 976 P.2d 505 (1999). Moreover,

"[t]his standard is met if there was some evidence from which the conclusion of the
administrative tribunal could be deduced. Ascertaining whether this standard is satisfied

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 does not require examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could support the conclusion reached by
the disciplinary board." Sammons, 267 Kan. 155, Syl. ¶ 3.

The United States Supreme Court has also discussed the applicable standard:

"The Federal Constitution does not require evidence that logically precludes any
conclusion but the one reached by the disciplinary board. Instead, due process in this
context requires only that there be some evidence to support the findings made in the
disciplinary hearing. Although the evidence in this case might be characterized as
meager, and there was no direct evidence identifying any one of three inmates as the
assailant, the record is not so devoid of evidence that the findings of the disciplinary
board were without support or otherwise arbitrary." Superintendent v. Hill, 472 U.S. 445,
457, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).

Thus, due process is satisfied in the context of an inmate disciplinary proceeding if
there is any evidence in the record, even evidence which could be characterized as
meager, that could support the conclusion of the disciplinary authority. Due process does
not require that the evidence preclude other possible outcomes or conclusions, only that
the evidence provides some support for the conclusion reached by the disciplinary
authority such that the decision is not arbitrary.

In this case, the outcome turns on what, specifically and as a matter of law, had to
be shown to support a finding that May violated K.A.R. 44-12-301. The parties agree, as
do we, that the question comes down to which party bears the burden to prove or
disprove May's claim of self-defense. The Court of Appeals panel ruled that "KDOC was
not obligated to disprove self-defense." May, 2014 WL 1708027, at *3. This is consistent
with the holding of prior panels of the Court of Appeals. See, e.g., Miller v. McKune, 38
Kan. App. 2d 810, 816, 174 P.3d 891 (2006) ("The question of self-defense was an issue
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before the hearing officer. But, by the decision of guilty of fighting being reached, it is
clear the existence of this defense was resolved against Miller. The prosecution was not
obligated to disprove self-defense."). The Court of Appeals reasoned from this premise to
the logical conclusion that the "some evidence" standard had been met in May's case
given the undisputed fact that May and Dale were fighting. May, however, continues to
challenge the premise itself.

The interpretation of a regulation is a question of law. See Murphy v. Nelson, 260
Kan. 589, 594, 921 P.2d 1225 (1996). Cline asks us to show deference to the agency
interpretation of K.A.R. 44-12-301; however, we have recently resoundingly rejected the
doctrine of deference to an agency on questions of law. Douglas v. Ad Astra Information
Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (doctrine of operative construction has
"been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and
permanently relegated to the history books"); Coleman v. Swift-Eckrich, 281 Kan. 381,
383, 130 P.3d 111 (2006) (recognizing that the doctrine of operative construction applied
to agency interpretations of both statutes and regulations). We therefore owe no
deference to an agency's interpretation of its own regulations and exercise unlimited
review over such questions.

At common law, self-defense was always an affirmative defense. "[T]he common-
law rule was that affirmative defenses, including self-defense, were matters for the
defendant to prove." Martin v. Ohio, 480 U.S. 228, 235, 107 S. Ct. 1098, 94 L. Ed. 2d
267 (1987). The burden of proof rule arises directly out of the nature of affirmative
defenses—i.e., affirmative defenses (or the lack thereof) are neither elements of the
alleged offense nor do they negate any element of the offense. Rather, affirmative
defenses provide a legally recognized justification for the action such that the actor
cannot be held criminally or civilly liable. See, e.g., United States v. Corrigan, 548 F.2d

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879, 883 (10th Cir. 1977) ("An affirmative defense admits the defendant committed the
acts charged, but seeks to establish a justification or excuse.").

The law of self-defense pertaining to criminal acts in Kansas has been modified
such that a burden-shifting scheme is now employed. A defendant claiming self-defense
must first meet the burden to come forward with some competent evidence in support of
the claim, and thereafter, "the state has the burden of disproving the defense beyond a
reasonable doubt." K.S.A. 2015 Supp. 21-5108(c).

But in this case, these rules must give way to the plain language of the regulation
we are considering. Here, K.A.R. 44-12-301 clearly and unambiguously makes the
absence of self-defense an element of the offense itself. See, e.g., State v. Messer, 278
Kan. 161, 164, 91 P.3d 1191 (2004) (quoting State v. Sweat, 30 Kan. App. 2d 756, 760,
48 P.3d 8 [2002]) ("'[A]ll crimes are statutory and the elements necessary to constitute a
crime must be gathered wholly from the statute.'"). The presence of the language "unless
such activity is in self-defense" establishes a burden on the disciplinary authority to prove
the "activity" was not "in self-defense." See K.A.R. 44-12-301; State v. Longoria, 301
Kan. 489, 518, 343 P.3d 1128 (2015) (State has the burden of proving all elements of the
crime charged).

When we evaluate the evidence in the record before us in light of a proper
understanding of the regulation May was alleged to have violated, we have no difficulty
concluding that there was no evidence whatsoever presented to the hearing officer that
May did not act in self-defense. The quantum of evidence to support a disciplinary action
is slight, but even so, the record here discloses nary a scintilla of evidence on which a
reasonable hearing officer could conclude that May was not acting in self-defense. This is
hardly surprising given that neither the disciplinary authorities nor the hearing officer
believed the regulation demanded such evidence. Nevertheless, the regulation at issue
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was promulgated by the Department of Corrections and the Department must abide by its
language.

May was not accorded due process when he was found to have violated K.A.R.
44-12-301 despite a complete failure of proof of one of the elements of the offense. The
judgment of the Court of Appeals is reversed, and the judgment of the district court is
affirmed.

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