Moore v. DEPT. OF CORR. SERVS. APPEALS BD.

589 N.W.2d 861, 8 Neb. Ct. App. 69
CourtNebraska Court of Appeals
DecidedJanuary 26, 1999
DocketA-98-254
StatusPublished
Cited by3 cases

This text of 589 N.W.2d 861 (Moore v. DEPT. OF CORR. SERVS. APPEALS BD.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. DEPT. OF CORR. SERVS. APPEALS BD., 589 N.W.2d 861, 8 Neb. Ct. App. 69 (Neb. Ct. App. 1999).

Opinion

589 N.W.2d 861 (1999)
8 Neb. App. 69

Robert N. MOORE, appellee,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES APPEALS BOARD, appellant.

No. A-98-254.

Court of Appeals of Nebraska.

January 26, 1999.

*862 Don Stenberg, Attorney General, and Melanie J. Whittamore-Mantzios, Lincoln, for appellant.

Robert N. Moore, pro se.

*863 SIEVERS, MUES, and INBODY, Judges.

MUES, Judge.

I. INTRODUCTION

The Nebraska Department of Correctional Services (DCS) appeals the decision of the Douglas County District Court reversing a ruling by the DCS Appeals Board (Appeals Board) finding that Robert N. Moore violated 68 Neb. Admin. Code, ch. 5, § 5(I)(H) (1994), which prohibits abuse of drugs or intoxicants. For the reasons set forth below, we reverse the order of the district court and remand the matter with directions.

II. BACKGROUND

On June 9, 1997, Moore, an inmate at the Omaha Correctional Center, voluntarily submitted to a urine test. Sgt. Jeff Parker of the Omaha Correctional Center received the results of the drug screen test on June 13. The test showed positive results for cannabinoid. Because of the positive drug test results, Parker suspected that Moore had used some form of cannabinoids during the 30 days prior to the urine test.

Parker issued a misconduct report charging Moore with violating § 5(I)(H), which prohibits the abuse of drugs or intoxicants. A preliminary hearing was held on June 14, 1997, before a Sgt. D. Berglund, the investigating officer. At the hearing, Moore was given copies of a statement of testing, the testing results, a statement by the laboratory technician, and the chain of possession of evidence. A hearing before the Omaha Correctional Center Institutional Disciplinary Committee (Committee) was scheduled for June 26. Moore requested that the Nebraska rules of evidence be applied during the hearing and requested that Cpl. Sam Walton and Sgt. Michael Simpson appear as witnesses.

After several continuances, the disciplinary hearing was held on July 8, 1997. Simpson and Walton did not appear at the hearing; however, reports from them were presented to the Committee. The Committee also received the misconduct report by Parker, the report by the laboratory technician, the chain of possession tag, and the test results. Parker, the reporting officer, appeared at the hearing but did not testify.

Walton's statement alleged that he had collected the urine sample from Moore and had followed all standard procedures in obtaining the sample. Simpson's statement alleged that after Walton collected the urine sample, Simpson tested the level of the specific gravity of the sample. After Simpson determined that the specific gravity met or exceeded the recommended requirements, Walton sealed the urine sample and placed it into evidence.

Moore testified on his own behalf. He stated that he was innocent and claimed that the sample was contaminated because neither he nor Simpson wore gloves during the procedure. Moore also claimed that Simpson was not properly trained to perform the specific gravity test.

Moore complained that the Committee's acceptance of the incident reports in lieu of live testimony violated his right to have the witnesses sworn and cross-examined. Moore asked that the Committee continue the hearing until the witnesses could be present or, alternatively, dismiss the report. The Committee denied both requests. The Committee found that Moore had violated § 5(I)(H) and imposed a 3-month loss of good time credit and a 30-day room restriction.

The Committee's decision is reflected on a form entitled "Disciplinary Committee Action Sheet." The form contains the following entries regarding witnesses:

Witnesses requested: ... Who was requested: SGT. SIMPSON, CPL. WALTON DORZWEILER, T. # 37001 Who came:___ Who didn't come: SIMPSON, WALTON Why didn't they come (If denied by committee, reasons must be specific): WROTE I.R.'s.

*864 There is no explanation in our record of when, or by whom, the name "Dorzweiler" was typed on the form or when, why, or by whom his name was crossed off.

Moore appealed the Committee's decision to the Appeals Board alleging, inter alia, that he was denied due process because he was denied the right to call "Borzweiler" (the inmate's name appears as Borzweiler in some documents and Dorzweiler in others; in order to avoid confusion, we will refer to the inmate as Dorzweiler) and because the Committee provided no explanation for such denial. Moore further alleged that he was denied due process because Simpson and Walton were allowed to present written reports rather than appear personally with no explanation given. Moore also complained that there was insufficient evidence to convict him, that the rules of evidence were not applied, and that Simpson was not properly trained to conduct the specific gravity test. The Appeals Board affirmed the decision of the Committee, and Moore appealed to the district court.

In his appeal to the district court, Moore alleged that his right to due process was violated because the Committee disregarded his request for the testimony of an inmate witness without giving any explanation. Moore also alleged that he was denied due process because the Committee denied his request that the formal rules of evidence be applied to the hearing.

The district court found that the Committee violated departmental policy when it failed to state in writing why Walton and Simpson were permitted to testify by incident report rather than appearing in person. The district court determined that this was a substantial violation of Moore's rights and was prejudicial to him. The district court also found that the Committee erred in not applying the rules of evidence to the hearing. The district court held that this was also a substantial violation and was prejudicial to Moore. The district court ordered that the determination of misconduct be expunged from Moore's record and taxed the costs of the action to DCS. DCS timely appealed.

III. ASSIGNMENT OF ERROR

DCS alleges, restated, that the district court erred in reversing the decision of the Committee.

IV. STANDARD OF REVIEW

An aggrieved party may obtain review of any judgment or final order entered by a district court under the Administrative Procedure Act; the final order rendered by a district court may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Gramercy Hill Enters. v. State, 255 Neb. 717, 587 N.W.2d 378 (1998).

When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Gramercy Hill Enters. v. State, supra.

Determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law, regarding which an appellate court is obligated to reach its own conclusions independent of those reached by the trial court. Billups v. Nebraska Dept. of Corr. Servs. Appeals Bd., 238 Neb.

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Bluebook (online)
589 N.W.2d 861, 8 Neb. Ct. App. 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-dept-of-corr-servs-appeals-bd-nebctapp-1999.