Howard v. South Carolina Department of Corrections

Justice PLEICONES.

I respectfully dissent. In my view, the jurisdiction of the administrative law courts is a matter entirely within the discretion of the General Assembly, which created that system by statute and could abolish it at will. The majority recognizes this, as well as the fact that an inmate’s right to judicial *637review of decisions that implicate constitutional interests is not and cannot be diminished by the removal of administrative review by an executive agency.14 Administrative review promotes efficiency in government but does not alter its fundamental separation of powers and resulting right to judicial review of executive actions affecting certain interests. See Al-Shabazz v. State, 338 S.C. 354, 369, 527 S.E.2d 742, 750 (2000). Indeed, Article I, § 22, of the South Carolina Constitution explicitly guarantees the right to judicial review of all final agency decisions that affect private rights or liberty or property interests.

By removing ALC review of administrative decisions involving loss of the ability to earn credits under S.C.Code Ann. § 1-23-600 (Supp.2011), the General Assembly has in effect returned initial review of those decisions to the judicial branch. Al-Shabazz, supra; S.C. Const. art. I, § 22. Thus, the General Assembly’s alteration of the ALC’s jurisdiction does not create a constitutional question because the prisoner retains his right to judicial review, and the ALC’s determination that it lacked jurisdiction was correct.

Unlike the majority, however, I cannot resolve the practical difficulties created by the General Assembly’s alteration of ALC subject matter jurisdiction by finding that the opportunity to earn sentence-related credits is not a liberty interest. I continue to believe that Furtick was correctly decided for the reasons expressed by the majority in that case, namely, that Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), is controlling. The Wolff Court acknowledged that “the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison.” Id. at 557, 94 S.Ct. 2963. Nevertheless, “the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and *638required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Id.

The General Assembly created such an interest in S.C.Code Ann. § 24-13-210(A) (2007). Moreover, the constitutional dimension of that interest is the same whether the discipline imposed is to withhold good-time credits already earned or the opportunity to earn them. Under § 24-13-210(A), a prisoner who “faithfully observe[s] all the rules of the institution where he is confined” is “entitled to a deduction from the term of his sentence^]” The entitlement is not merely to speculatively hope about a future benefit that might be conferred as an exercise of pure discretion. Rather, the accrual of good-time credits lies within the prisoner’s control under § 24-13-210.

The Wolff Court noted that the “analysis as to liberty parallels the accepted due process analysis as to property,” citing, among other examples, the procedural due process required before a person may be deprived of his interest in a “government-created job[ ] held, absent ‘cause’ for termination.” Id. at 557-58, 94 S.Ct. 2963 (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The entitlement of an employee to hold his job absent cause for termination provides a useful analogy to the opportunity of an inmate to earn good-time credits. An employee’s expectation that he will avoid incurring cause for termination while performing his job duties is no less speculative than a prisoner’s expectation that he will avoid violating a prison rule while incarcerated. Indeed, the very fact that the opportunity to earn good-time credits is withheld as a sanction demonstrates that a liberty interest is implicated. Id. at 557, 94 S.Ct. 2963 (“the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ ” (emphasis added)).

In this case, appellant alleges that he was disciplined for violating an unconstitutional policy and that the infraction was treated as a major offense. He avers that, as a sanction for the violation, his earned work credit level was reduced, extending his maxout date by 217 days. Yet the majority holds that no cognizable liberty interest has been affected, so that *639his claims may be dismissed without a hearing. In my view, the majority’s holding, overruling Furtick and finding that appellant was not entitled to a hearing to review the imposition of a major disciplinary penalty when he was deprived of the right to earn good-time credits, contravenes the federal and state constitutions.

In my view, appellant was deprived of a liberty interest. When a claimant asserts that government action has wrongly deprived him of a liberty interest and the claim is fact intensive, a hearing to develop the factual basis of the claim is a necessary part of the review guaranteed by due process. Id. at 557-58, 94 S.Ct. 2963 (“This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests.”); see also Kurschner v. City of Camden Planning Comm’n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008) (recognizing that due process requires a trial-type hearing for fact-specific, adjudicatory decisions by administrative agencies). Thus, if a hearing is required to develop the factual basis of the claim, that hearing must be performed by the circuit court if the General Assembly has not provided for such a hearing within the administrative review process. See Travelscape, LLC v. South Carolina Department of Revenue, 391 S.C. 89, 108-09, 705 S.E.2d 28, 38 (2011).

Appellant presented a fact-intensive issue implicating a constitutional liberty interest and timely appealed. The factual basis for his constitutional arguments was not developed by the Department of Corrections, the ALC, or a court. Were appellant still incarcerated, I would remand to circuit court for a full airing of the issues.15

*640On the issue whether appellant was unconstitutionally penalized for helping an illiterate inmate prepare a post-conviction relief application, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), is squarely on point. The majority holds that Johnson did not establish a specific right for a prisoner to provide legal assistance and that, in the absence of an established right to provide legal assistance, appellant lacks standing to make a claim. In Johnson, however, the prisoner challenging the regulation (Johnson) was, like the appellant in this case, seeking to offer legal assistance to another inmate. The Johnson Court did not hold that he lacked standing to bring a claim. Rather, it held that “unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.” Id. at 490, 89 S.Ct. 747. Moreover, contrary to the majority’s assertion, appellant suffered an actual injury when he was punished for a major infraction and consequently became subject to a later maxout date, as noted above. Thus, it is doubly apparent that appellant had standing to bring this claim.

Furthermore, I do not agree with the majority’s assertion that appellant failed to allege that there is no other source of assistance for illiterate inmates. Appellant states that the inmate he sought to assist is illiterate and that no one else would help him, and he asserts that no assistance is provided to illiterate inmates by persons trained in the law. The fact that appellant refers to a law library and law library clerks is not inconsistent with his assertion that assistance is not made available to illiterate inmates, as the majority appears to believe. Nor does the mere existence of law libraries and clerks ensure that illiterate prisoners are given adequate assistance to enable them to access the courts without the help of other prisoners.

Finally, appellant contends that he was convicted of a disciplinary violation without due process of law in that, among other contentions, he was denied the opportunity to call witnesses or present documentary evidence. The due process required for imposition of penalties for major infractions includes the opportunity to call witnesses and present documen*641tary evidence. Wolff, 418 U.S. at 566, 94 S.Ct. 2963; Al-Shabazz, 338 S.C. at 371, 527 S.E.2d at 751. In this case, the Department of Corrections does not contradict appellant’s assertion that he was not afforded such an opportunity, and no factfinder passed on the issue. Thus, appellant was not afforded due process.

I therefore respectfully dissent. I would affirm Furtick and acknowledge the viability of appellant’s claim under Johnson.

Justice KITTREDGE.

I would dismiss this appeal as moot. As the majority opinion indicates, Appellant has been released from prison, as his underlying convictions and sentences were reversed by the court of appeals during the pendency of this appeal. As a result, we are no longer presented with a justiciable controversy. In the words of the majority opinion, Appellant’s claim for relief is now “inconsequential.” Moreover, Appellant has not requested that we invoke any exception to mootness and proceed to the merits of his appeal. Accordingly, I would dismiss the appeal and refrain from issuing an advisory opinion.

. In my view, the majority’s references to ALC review as judicial review is a misnomer which tends to blur the distinction between the executive and judicial branches in a context in which that distinction is important.

. Justice Kittredge correctly observes that Appellant has made no explicit request that we consider an exception to mootness in this case. In my view, Appellant could not have done so since his case did not become moot until after it was submitted for this Court's decision. Indeed, we cannot say on this record whether the case is moot. If Appellant is convicted upon retrial, we do not know what effect the disciplinary violation at issue here will have upon the credit he is awarded for time served. Finally, the facts alleged by Appellant fit squarely within the mootness exception for disputes that are capable of repetition yet evading review. See Turner v. Rogers, — U.S.-, 131 S.Ct. 2507, 2515, 180 L.Ed.2d 452 (2011).