Walton v. District of Columbia

SCHWELB, Associate Judge,

concurring in the result:

I join my colleagues in voting to affirm the Department’s decision, and I agree with much of what Judge Reid has written. I write separately, however, because my assessment of several of the issues differs, in substance or in emphasis, from the treatment of those issues in the majority opinion.

I.

JURISDICTION

My colleagues’ jurisdictional analysis appears to be predicated on the assumption that Walton’s action against the District and its officials is really a habeas corpus proceeding, in effect though not in name. They conclude, relying upon our recent decision in Abdullah v. Roach, 668 A.2d 801 (D.C.1995), that the case was properly before the Superi- or Court pursuant to D.C.Code § 11-921(a)(3)(A)(iii) (1995), which expressly confers jurisdiction on that court over habeas corpus proceedings against persons other than federal officers or employees.

In my opinion, however, this case is significantly different from Abdullah. Unlike the petitioner in that case, Walton did not file a *1359petition for a writ of habeas corpus. He did not directly challenge the legality of his detention, nor did he seek relief from confinement or from adjustment segregation. Rather, he prayed for declaratory and injunctive relief, and he asked the court to vacate the finding that he violated two prison regulations and to expunge or remove from his file the documents relating to the challenged proceeding. As the majority expressly recognizes, we held in Vaughn v. United States, 598 A.2d 425, 431 (D.C.1991), that habeas corpus is not the exclusive means by which a prisoner may challenge the legality of disciplinary proceedings instituted against him. Under these circumstances, I am reluctant to recast Walton’s suit for him. Rather, I would treat the case as being exactly what it appears to be — an action for relief from adverse and allegedly unlawful agency action.

We have held that the Superior Court may entertain claims for such relief pursuant to D.C.Code § 11 — 921(a)(6) (1995), which vests that court with jurisdiction over “any civil action or other matter, at law or in equity, brought in the District of Columbia.” See, e.g., District of Columbia v. Sierra Club, 670 A.2d 354, 358-360 (D.C. Jan. [ ], 1996); Speyer v. Barry, 588 A.2d 1147, 1159-60 (D.C.1991) (citations omitted). In Abdullah, we recognized that Section ll-921(a)(6) served as an alternative jurisdictional basis for a suit by a prisoner who had alleged that his legal rights were violated in disciplinary proceedings instituted against him by correctional authorities.1 That analysis applies with full force to Walton’s case.

Contrary to the District’s position, there is nothing novel in our recognition of the Superior Court’s jurisdiction to consider the legality of agency action alleged to be unlawful. Even where the liberty of the citizen is not at issue, “the actions of government agencies are normally presumed to be subject to judicial review unless [the legislature] has precluded review or a court would have no law to apply to test the legality of the agency’s actions.” Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C.1991) (quoting Carlin v. McKean, 262 U.S.App.D.C. 212, 214, 823 F.2d 620, 622 (1987)), cert. denied, 484 U.S. 1046, 108 S.Ct. 784, 98 L.Ed.2d 870 (1988). “[0]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review,” Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (citations omitted), and as we held in Abdullah, no such evidence exists with respect to the LRAA.

The authority of courts to grant relief from unlawful agency action existed at common law, and it was merely reinforced (and not created) by the federal Administrative Procedure Act and similar local enactments. See Abbott Labs., supra, 387 U.S. at 140, 87 S.Ct. at 1511; Sierra Club, supra, 670 A.2d at 358-359. “The presumption of reviewability is not the product of enacted law; it is common law.” 5 Kenneth C. Davis, Administrative Law Treatise § 28:1, at 254 (1984). The Superior Court thus had “civil action” jurisdiction over Walton’s complaint, and there is no need to treat that complaint as a petition for habeas corpus when such a characterization is contrary to the pleader’s intent.

II.

THE EVIDENCE OF GUILT

I agree with the majority that there was “some evidence” of Walton’s guilt of the two disciplinary charges, see Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985), but I find the case closer and perhaps more troubling than my colleagues do.

The essence of the charges against Walton is an alleged attempt on his part to be a small-scale prison bootlegger. In his brief, Walton argues in pertinent part as follows:

With respect to Section 502.11(b) there are two requisite showings: that appellant was (1) in “possession of, making or attempting to make” (2) an “intoxicating beverage.” With regard to the “making, or attempting to make” phrases, there is [no] *1360evidence in the disciplinary report, or any other document introduced at the hearing, or in Sgt. Bonaparte’s own testimony that showed there was any evidence of this type of activity on Walton’s part. Thus, there is no indication in the disciplinary report that any winemaking “paraphernalia” [were] found in the course of the shakedown: there were no funnels or filtering devices, or fruit and sugar to further fermentation, or evidence that the grapefruit juice had been altered or enhanced in any way.
Further, the standard for a guilty finding of possession of contraband under Section 502.11(b) is that the substance constitute an “intoxicating beverage.” Here, too, the Department introduced no evidence at the Adjustment Board hearing that the grapefruit juice in Walton’s possession was capable of “intoxicating.” In fact, the only evidence at the hearing on this issue was Dr. Seipel’s testimony that a solution of “less than 1%” alcohol could not intoxicate a normal adult. (Emphasis in original.)

The District’s response to this contention is brief and to the point:

The bottom line in this case, when it is stripped of the complex constitutional issues, is that it is undisputed that Walton had gallons of fruit juice in a bag wrapped in a blanket and mattress cover, and that the prison officials made the logical and permissible inference that Walton was attempting to make “shoots,” or homemade wine, and used the juice in a manner contrary to the intent of its issuance. This evidence amply supported the finding that he was guilty of the class I and II contraband offenses.

To me, the decisive question which emerges from these contentions is whether Walton’s possession and apparent concealment of a large amount of improperly acquired grapefruit juice is “some evidence” that he attempted to make homemade wine. My colleagues emphasize that Walton did not deny that there was a smell in his cell. I should think, however, that such a large amount of non-alcoholic grapefruit juice might also be discernable to the educated nostril. If I were the trier of fact, and if I were not provided with further enlightenment on the subject, I might have considerable difficulty concluding that this evidence proved that Walton was trying to become an amateur manufacturer of wine.

The reality is, though, that I am not the trier of fact. Presumably, the Lorton officials who heard the evidence know a great deal more about running a prison than judges do. A part of that superior knowledge doubtless extends, or at least should extend, to the manner in which prisoners try to make “shoots” or other intoxicants from the limited (one hopes) raw materials available to them. Our review of such proceedings, although apparently authorized by the LRAA, should therefore be very deferential indeed. Under that standard, I agree that we must reject Walton’s position on this issue.

III.

THE REMEDY

The trial judge concluded that the Adjustment Board’s initial written decision in Walton’s case was legally insufficient. He remanded the case to the Department of Corrections for more comprehensive written findings. Walton contends that this remedy was inadequate, and that he is entitled to expungement of the adverse findings and of related documentation. My colleagues disagree and, emphatically, so do I.

The requirement in the LRAA that correctional officials must provide adequate written findings in prison disciplinary proceedings is grounded in the Supreme Court’s due process analysis. See Wolff v. McDonnell, 418 U.S. 539, 565, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). The trial judge recognized this, and ordered the Department of Corrections to make more appropriate findings. The defect in the initial findings thus could be, and indeed has been, corrected. In a case such as this one, in which the substantive determination of guilt has been sustained, it would be altogether incongruous to treat Walton as if he had been exonerated and, in effect, to expunge the result of the proceedings from the face of the earth, simply because the *1361correctional authorities did not write the case up in sufficient detail the first time around.

Where an agency has failed to make sufficient findings, the appropriate remedy is to remand with directions that the omission be corrected and that adequate findings be made. See, e.g., Mack v. District of Columbia Dep’t of Employment Servs., 651 A.2d 804, 806 (D.C.1994). In my opinion, that was the proper remedy here, and the trial judge acted reasonably in adopting it. To award Walton more than that would constitute a windfall, rather than a correction of any violation of his rights. Cf. Carey v. Piphus, 435 U.S. 247, 260, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978).

Walton points out that the LRAA requires a written statement of the Board’s decision within three days of the hearing. 28 DCMR § 512.10. Obviously, the revised findings which followed the trial court’s remand were not issued within that time period. So far as I can discern, however, there is no claim that Walton was prejudiced by this delay, which was inevitable once judicial review was sought.2 We are nevertheless asked to hold, in the absence of any prejudice, that an inmate who has violated prison regulations must be relieved of the consequences of his transgression because errors in the findings were not corrected within three days. But correctional officers are not trained opinion-writers, cf. Ponte v. Real, 471 U.S. 491, 497-98, 105 S.Ct. 2192, 2196, 85 L.Ed.2d 553 (1985), and the rule for which Walton contends would, in my opinion, provide a “remedy” out of all proportion to the violation. It would also cause serious and wholly unnecessary difficulties for conscientious prison administrators, who would be compelled to allow violations by inmates to go unpunished for reasons unrelated to guilt or innocence.

To the extent, if any, that the draconian remedy demanded by Walton may be viewed as supportable under certain federal appellate and other precedents,3 I do not believe that those precedents can be reconciled with the Supreme Court’s approach to such issues in Ponte v. Real, supra, and Sandin v. Conner, — U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Accordingly, I cast my vote for proportionality and against importing into our correctional facilities the law’s continuing but dubious preoccupation with scrivening imperfections that cause no prejudice and do not affect the merits.

. Abdullah does not suggest, and neither do I, that a prisoner asserting jurisdiction pursuant to Section ll-921(a)(6), rather than under the ha-beas corpus statute, is thereby excused from exhausting his administrative remedies.

. I recognize that the Adjustment Board's decision can have unfavorable collateral consequences for an inmate, e.g., in relation to his prospects for parole. Wolff, supra, 418 U.S. at 565, 94 S.Ct. at 2979. Where inadequate findings have affected the result of subsequent proceedings, those proceedings should be revisited. I am not aware, however, of any such claim on Walton’s behalf.

. See, e.g., Redding v. Fairman, 717 F.2d 1105 (7th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984). I note that in Redding the court held that it was the function of the trial judge to balance the interests of the parties and to exercise discretion in determining whether "expunction” is appropriate. 717 F.2d at 1118-19. Assuming, arguendo, that it would have been within the discretion of the trial judge in this case to grant expunction and the other relief sought by Walton, his refusal to do so was not an abuse of that discretion.