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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mate Valoaga v. State of Alaska, Department of Corrections (1/17/2025) sp-7737
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
MATE VALOAGA, )
) Supreme Court No. S-18814
Appellant, )
) Superior Court No. 3PA-22-01593 CI
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF CORRECTIONS, ) No . 7737 - January 17, 2025
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, John C. Cagle, Judge.
Appearances: Mate Valoaga, pro se, Wasilla, Appellant.
Andalyn Pace, Assistant Attorney General, Anchorage, and
Treg Taylor, Attorney General, Juneau, for Appellee.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
BORGHESAN, Justice.
INTRODUCTION
A man held in pretrial detention challenges the decision of the Department
of Corrections (DOC) to impose discipline for his failure to provide a urine sample
within the time period required by prison policy. He argues that the decision violated
the Alaska Constitution in two ways.
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First, he argues that DOC may not impose discipline for a violation of
prison rules unless the violation is proved by clear and convincing evidence, which was
not the burden of proof applied here. We disagree and conclude that the Alaska
Constitution permits the use of a preponderance of the evidence standard in prison
disciplinary proceedings. The inmate's interest in being free from harsher conditions
of confinement and loss of privileges is important. So is DOC's interest in imposing
consequences for rule infractions in the challenging prison environment. Because there
are important interests on both sides, we conclude that it is permissible to allocate the
risk of error equally with the preponderance standard.
Second, the inmate argues that DOC's failure to offer him a saliva test in
lieu of a urine test when he was unable to urinate within the required time violated his
due process rights. Because he did not raise this argument until his reply brief in
superior court, it is not preserved for our review. We therefore decline to address it.
FACTS AND PROCEEDINGS
A. Facts
Mate Valoaga is a pretrial inmate at Goose Creek Correctional Center. In
April 2022 a DOC staff member asked him to provide a urine sample for random drug
testing. Under DOC policy an inmate has two hours to provide a urine sample once
requested.1 Failure to provide a sample within two hours is considered refusal to
2 3 4
provide a sample. Refusal constitutes a violation, which results in discipline.
Valoaga attempted to provide a sample, but after 30 minutes he told the staff member
1 DEP 'T OF CORR., POLICIES & PROCEDURES 808.14: SUBSTANCE ABUSE
TESTING (2013), https://doc.alaska.gov/pnp/pdf/808.14.pdf.
2 Id.
3 Id.
4 22 Alaska Administrative Code (AAC) 05.400(c)(16) (describing "refusal
to provide a urine specimen when requested" as "high-moderate" infraction).
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that he was having difficulty urinating. Valoaga received the opportunity to drink water
and then waited for an hour. Then he tried again for 15 minutes more, but failed to
urinate. The staff member informed Valoaga that he would receive an infraction for
5
refusing to provide a urine sample and then filed an incident report.
B. Proceedings
Later that month Valoaga pled not guilty in a disciplinary hearing before
a prison tribunal. He asserted that he had tried to urinate when he was asked, but could
not. He claimed that he did not understand the two-hour policy at the time of his test.
He did not object when asked if he had been given two hours to produce a urine
specimen. But he claimed that his result would have been negative.
The prison disciplinary tribunal found Valoaga guilty of refusing to
provide a urine specimen, a "high-moderate" infraction.6 The tribunal applied the
preponderance of the evidence standard, the burden of proof used in prisoner
disciplinary hearings under DOC regulations.7 As a penalty, Valoaga received time in
punitive segregation.
He appealed the decision to the facility's superintendent. He filed a
written document asserting several arguments. He also attached a letter as an exhibit to
his appeal form. Among other things, the letter alleged that Valoaga never refused to
offer a urine sample and had offered to remain longer to try and urinate, that he had
immediately written to medical staff to see if there was another way to comply with the
testing policy, and in general terms that DOC's drug testing policy violated his due
5 This report is not entirely clear regarding how much time Valoaga was
allowed to try and produce a sample. The report does not indicate when Valoaga was
ordered to provide a sample; one hour and 45 minutes elapsed between when he said he
was willing to provide a sample and the time the officer imposed the infraction. But
Valoaga does not argue that he was denied his full two hours under DOC's procedures.
6 22 AAC 05.400(c)(16).
7 22 AAC 05.455(a).
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process rights. Valoaga also challenged his signed acknowledgment of the refusal to
provide a specimen. Noting that English is his second language, Valoaga argued that
he was confused about the proceedings. The superintendent denied the appeal.
Valoaga appealed to the superior court. His opening brief raised only one
issue: that the preponderance of the evidence standard used in the prison disciplinary
proceeding violated his due process rights. He argued that our decision in McGinnis v.
Stevens8 held that the Alaska Constitution required DOC to use a clear and convincing
standard in disciplinary proceedings. Valoaga contended that this error prejudiced him.
He asserted that "prejudice is presumed" when the government "uses an
unconstitutional standard of proof to deprive [its] citizens of a Liberty interest."
DOC filed an opposition brief. It disputed Valoaga's assertion that
McGinnis established a constitutionally required burden of proof for prison disciplinary
9
hearings. It argued that our decision in Nordlund v. State, Department of Corrections
ratified the "some evidence" standard as constitutionally permissible. Therefore, DOC
reasoned, it was also constitutionally permissible to use the preponderance standard in
prison disciplinary proceedings.
Valoaga added new arguments in his reply brief. He asserted for the first
time that "the institution's failure to administer the saliva test violated his procedural
due process rights." He asserted that the record showed that he "would have done
anything to comply" but that he was "physically unable" to produce a sample in two
hours.
The superior court issued an opinion affirming the administrative
decision. The court was unpersuaded by Valoaga's reliance on McGinnis and
8 543 P.2d 1221 (Alaska 1975).
9 520 P.3d 1178 (Alaska 2022) (citing Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 454, 456 (1985)).
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concluded that the preponderance standard is constitutional in light of our decision in
Nordlund .
The court also addressed whether DOC's drug testing procedures
complied with due process. It observed that Valoaga did not raise this argument in his
opening brief. Although the issue was "almost certainly waived," the court addressed
the merits anyway. It commented that "[t]wo hours is perhaps too short a time, as the
court can imagine an inmate genuinely unable to urinate within two hours." But it
ultimately determined that "some limits are needed for corrections officers to complete
their duties according to DOC's schedule, rather than the inmate's" and that "[a]bsent
a major issue, it is not the court's place to second-guess DOC reasoning on these
points." Therefore it upheld DOC's policy.
Valoaga appeals.
STANDARD OF REVIEW
"When the superior court acts as an intermediate appellate court, we
independently review the merits of the underlying administrative decision."10 A court
may reverse a DOC disciplinary decision only if it "finds that the prisoner's
fundamental constitutional rights were violated in the course of the disciplinary
11
process" and that "the violation prejudiced the prisoner's right to a fair adjudication."
"Whether an inmate has received procedural due process is an issue of constitutional
law that we review de novo."12 "Whether a party has suffered prejudice is likewise
10 Griswold v. Homer Bd. of Adjustment, 440 P.3d 248, 252 (Alaska 2019)
(quoting Heller v. State, Dep't of Revenue, 314 P.3d 69, 72-73 (Alaska 2013)).
11 AS 33.30.295(b)(1).
12 Nordlund , 520 P.3d at 1181 (quoting Brandon v. State, Dep't of Corr., 73
P.3d 1230, 1233 (Alaska 2003)).
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reviewed de novo."13 "The question of what standard of proof applies to a given issue"
14
is a question of law.
DISCUSSION
A. Requiring Prison Officials To Prove Alleged Disciplinary Violations
By A Preponderance Of The Evidence Does Not Violate The Right To
Due Process.
Valoaga argues that DOC used an unconstitutional burden of proof in his
disciplinary hearing. He maintains that when a major infraction of prison rules is
alleged, the due process clause of the Alaska Constitution15 requires that DOC hearing
officers find the prisoner's guilt by clear and convincing evidence before imposing
sanctions. We first analyze whether our decisions directly control this issue. Because
we conclude that they do not, we apply the Mathews v. Eldridge 16 balancing test to
determine whether a clear and convincing evidence standard is constitutionally
required.
1. Our prior decisions did not determine whether a
preponderance of the evidence standard is constitutionally
permissible in prison disciplinary proceedings.
The parties rely on competing precedents to support their positions.
Valoaga argues that our decision in McGinnis establishes that a clear and convincing
evidence standard is required. DOC argues that our decision in Nordlund held that it is
not. We conclude that neither decision directly controls.
13 Id. (quoting Walker v. State, Dep't of Corr., 421 P.3d 74, 81 (Alaska
2018)).
14 DeNuptiis v. Unocal Corp , 63 P.3d 272, 277, 279 (Alaska 2003) (citing
Mathews v. Eldridge , 424 U.S. 319, 332 (Alaska 1976) as guide to determine "whether
a standard of proof is appropriate").
15 Alaska Const. art. 1, § 7.
16 424 U.S. at 334-35.
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In McGinnis we established certain minimum due process protections for
prison disciplinary proceedings under the Alaska Constitution. The inmates in that case
argued that when a major infraction is alleged, due process requires proof of guilt
beyond a reasonable doubt.17 We disagreed:
Since we are of the view that disciplinary proceedings are
not criminal proceedings within the intendment of Alaska's
constitution, we are not convinced that a reasonable doubt
standard of proof is mandated. Thus, we hold that the
Division's adoption and use of the guilt determination
criterion of 'substantially more probable than . . . innocence'
is not violative of Alaska's constitution and affords adequate
[18]
protection to the inmate in disciplinary proceedings.
Contrary to Valoaga's assertion, the McGinnis decision did not set the
"substantially more probable" standard as the constitutional floor. We stated in
Brandon v. State, Department of Corrections that the McGinnis decision established a
panoply of due process rights in prison disciplinary proceedings, including a standard
of guilt "substantially more probable than . . . innocence."19 But that was a mistake. A
close reading of McGinnis shows that this standard was set by a DOC regulation in
effect at the time, which we upheld against constitutional challenge.20 We did not hold
in McGinnis that such a standard was required by the constitution.21 Rather, we merely
rejected the argument that the constitution required proof beyond a reasonable doubt in
22
prison disciplinary proceedings.
17 McGinnis v. Stevens, 543 P.2d 1221, 1229 (Alaska 1975).
18 Id.
19 73 P.3d 1230, 1234 (Alaska 2003) (citing McGinnis , 543 P.2d at 1229).
20 McGinnis , 543 P.2d at 1229.
21 See id.
22 Id.
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The Nordlund decision did not determine the constitutionality of the
preponderance standard in prison disciplinary proceedings either. In Nordlund we
upheld the constitutionality of a statute limiting judicial review of prison disciplinary
decisions.23 According to AS 33.30.295(b)(3), "[a] disciplinary decision may not be
reversed . . . because of insufficient evidence if the record . . . shows that the
disciplinary decision was based on some evidence that could support the decision
reached." We held that this standard of review did not violate the due process clause
of the Alaska Constitution.24 But as Valoaga correctly points out, we upheld a standard
of appellate review, not a burden of proof for the initial decisionmaker.
Yet it does not follow, as Valoaga suggests, that Nordlund has no bearing
on the issue presented in this case. Many of the same policy considerations that
supported our decision in Nordlund apply with equal force here, as we explain below.
2. Applying the Mathews v. Eldridge test, we conclude that due
process does not require prison disciplinary decisions to be
based on clear and convincing evidence.
We use the Mathews v. Eldridge test to weigh competing considerations
when deciding precisely what process is due before the State may deprive a person of a
protected liberty or property interest.25 Under this test we consider:
the private interests affected by the official action; the risk
of an erroneous deprivation of such interest through the
procedures used and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the
government's interest, including the fiscal and
23 Nordlund v. State, Department of Corrections, 520 P.3d 1178, 1183-84
(Alaska 2022).
24 Id. at 1184.
25 DeNuptiis v. Unocal Corp., 63 P.3d 272, 279 (Alaska 2003); see
Morrissey v. Brewer , 408 U.S. 471, 481 (1972) ("Whether any procedural protections
are due depends on . . . whether the nature of the interest is one within the contemplation
of the 'liberty or property' language of the Fourteenth Amendment.").
8 7737
----------------------- Page 9-----------------------
administrative burdens that additional or substitute
procedural requirements would entail.[26]
Weighing these factors, we conclude that the Alaska Constitution does not require
prison disciplinary decisions to be made by clear and convincing evidence.
First, we consider the private interest at stake. Valoaga has a liberty
interest in not being wrongly punished with conditions of confinement more severe than
he already endures.27 Incarcerated people are not entitled to the "full panoply of rights
due to an accused in a criminal proceeding."28 But the importance of their interest
against undeserved punishment has led us to recognize that they have a qualified right
to call and cross-examine witnesses, to produce documentary evidence, and to have a
29
fair and impartial hearing.
Second, we consider the risk of erroneous deprivation that comes with
using a preponderance of the evidence standard for prison disciplinary decisions.
Obviously, using a more demanding burden of proof would lessen the risk that inmates
are mistakenly punished for infractions they did not commit. At the same time, a more
26 Id. (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353
(Alaska 1988)).
27 See Brandon v. State, Dep't of Corr., 73 P.3d 1230, 1234 (Alaska 2003).
28 McGinnis v. Stevens, 543 P.2d 1221, 1226 (Alaska 1975).
29 Brandon, 73 P.3d at 1234 (citing McGinnis , 543 P.2d at 1236-37).
Valoaga's brief purports to incorporate his briefing to the superior court, which
suggested that because he is a pretrial detainee, his liberty interest is greater than that
of a prisoner who has been convicted. But we do not allow litigants to incorporate
arguments from other documents into their briefs, so this argument is waived.
McCormick v. Chippewa, Inc., 459 P.3d 1172, 1180 (Alaska 2020) (holding arguments
waived for inadequate briefing when appellant attempted to incorporate by reference
arguments made in other documents).
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demanding burden would also increase the risk that violations of prison disciplinary
rules may go unpunished.30
Third, we consider the State's interest in using a preponderance standard
for prison disciplinary proceedings. When we upheld the use of the "some evidence"
standard of review in Nordlund, we relied on the reasoning of the U.S. Supreme Court:
Prison disciplinary proceedings take place in a highly
charged atmosphere, and prison administrators must often
act swiftly on the basis of evidence that might be insufficient
in less exigent circumstances. The fundamental fairness
guaranteed by the Due Process Clause does not require
courts to set aside decisions of prison administrators that
have some basis in fact.[31]
In reaching this conclusion, we recognized "the importance of giving prison
administrators 'wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and
to maintain institutional security.' "32 These interests are no less at stake in this dispute.
Balancing these interests, we conclude that the due process clause of the
Alaska Constitution permits the use of a preponderance of the evidence standard in
prison disciplinary proceedings. Placing the risk of mistake equally on prison
administrators and the inmate properly balances their important competing interests:
the prisoner's interest in avoiding harsher conditions of confinement against the
30 See Superintendant, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455
(explaining that lower of burden of proof can achieve goal of "prevent[ing] arbitrary
deprivation without threatening institutional interests or imposing undue administrative
burdens").
31 Norlund v. State, Dep't of Corr., 520 P.3d 1178, 1184 (Alaska 2022)
(quoting Hill, 472 U.S. at 456).
32 Id. at 1184 n.30 (quoting State v. Avery, 211 P.3d 1154, 1157 (Alaska App.
2009)).
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prison's interest in enforcing rules necessary for order in a challenging environment.33
Therefore, the superior court did not err in affirming DOC's use of a preponderance of
the evidence standard in Valoaga's disciplinary proceedings.
B. Valoaga Failed To Preserve His Argument That DOC's Drug Testing
Policy Violated His Due Process Rights.
Valoaga argues that DOC's drug testing policy violated his substantive
due process rights.34 Specifically, Valoaga argues that he physically could not urinate,
and that considering his inability to urinate as a "refusal" without first offering him a
saliva test violated due process.
We decline to address this argument on the merits because it was not
properly preserved for our review. Valoaga did not make this argument until his reply
brief to the superior court. Because he did not timely raise the issue, DOC had no ability
to rebut his assertions or to present evidence justifying its actions or omissions related
to saliva tests.
33 Cf. Disciplinary Matter Involving Walton, 676 P.2d 1078, 1085 (Alaska
1983) (holding Constitution permitted preponderance of the evidence standard in
lawyer disciplinary proceedings; "[b]ecause there are substantial interest[s] on both
sides" - lawyer's interest in reputation and livelihood versus public's interest in
protection against unethical lawyers - "the risk of error should be borne equally").
34 Valoaga argues that the policy violated both his procedural and
substantive due process rights. But his theory touches only on substantive, not
procedural, due process. "Substantive due process 'focuses on the result of
governmental action, not its procedures, meaning that it imposes limits on what a state
may do regardless of what procedural protection is provided.' " Native Vill. of
Kwinhagak v. State, Dep't of Health & Soc. Servs., Off. of Child. 's Servs., 542 P.3d
1099, 1117 (Alaska 2024) (quoting In re Hospitalization of Mabel B., 485 P.3d 1018,
1024 (Alaska 2021)). Valoaga argues that the constitution does not allow punishment
without first offering a saliva test. In effect he argues that the policy gives an
unconstitutional definition of "refusal," the threshold element before discipline is
imposed. DEP 'T OF CORR., POLICIES & PROCEDURES 808.14, supra note 1; 22 AAC
05.400(c)(16); 22 AAC 05.470. But this theory takes issue with the definition of the
offense, not the procedures DOC must follow before imposing punishment. So the
argument is better characterized as a substantive due process challenge.
11 7737
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We first consider issue exhaustion. " 'Issue exhaustion' refers to the
requirement that individual issues must be raised in an administrative appeal in order to
raise those issues in a subsequent judicial proceeding . . . ."35 "As a general matter, it
is inappropriate for courts reviewing appeals of agency decisions to consider arguments
not raised before the administrative agency involved."36 But this requirement does not
apply in all contexts. "[O]ur cases mandating issue exhaustion in several types of
agency proceedings should not be construed to 'announce an inflexible practice' of
mandating issue exhaustion in all such proceedings."37 And in some cases we have
held that inmates' failure to exhaust particular issues in prison disciplinary proceedings
does not preclude judicial review.
In Walker v. State, Department of Corrections , we concluded that inmates
who fail to raise constitutional claims during their disciplinary proceedings "do not
necessarily forfeit those claims" on appeal.38 In that case an inmate sought the presence
of several witnesses at his disciplinary hearing, but the hearing officer denied his
request without explanation.39 The inmate did not challenge this decision during his
administrative proceedings, but he argued on appeal to the superior court that denying
him the opportunity to call witnesses violated his right to due process.40 The superior
court held the argument was not preserved, but on appeal we reversed.41 We concluded
35 Walker v. State, Department of Corrections , 421 P.3d 74, 79 n.17 (Alaska
2018) (citing Etchu-Njang v. Gonzales, 403 F.3d 577, 581 (8th Cir. 2005)).
36 Id. at 78 (quoting 1000 Friends of Md. v. Browner, 265 F.3d 216, 227 (4th
Cir. 2001)).
37 Id. at 78-79 (emphasis in original) (quoting Hormel v. Helvering, 312 U.S.
552, 556 (1941)).
38 Id. at 81.
39 Id. at 77.
40 Id. at 77-78.
41 Id. at 79-81.
12 7737
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that applying the rule of issue exhaustion was not appropriate under the
circumstances.42 We observed that no statute or regulation required issue exhaustion
in prisoner disciplinary proceedings.43 And we held that prison administrators do not
have special expertise to address constitutional claims, so allowing judicial review
44
despite failure to exhaust would not impermissibly displace agency skill or discretion.
Therefore we considered the prisoner's due process challenge on its merits.45 However,
we left open the possibility that the exhaustion requirement might apply "to issues that
46
a prisoner never brings to DOC's attention or that a prisoner deliberately ignores."
And we took special note of the fact "that Walker brought his constitutional claim to
47
DOC's attention during the initial stages of the disciplinary process."
In Huber v. State, Department of Corrections , an inmate argued for the
first time on appeal to the superior court that a hearing officer's written disciplinary
decision, which declared the inmate "guilty" without further explanation, violated due
process.48 Relying on Walker, we held that the inmate's failure to exhaust his due
process argument did not preclude judicial review.49 Unlike in Walker, the inmate in
Huber never brought the asserted violation (the deficiency of the initial disciplinary
decision) to prison administrators' attention.50 But we reasoned, among other things,
that "prison superintendents possess no 'special expertise to address [the] constitutional
42 Id. at 81.
43 Id. at 79.
44 Id. at 79-81.
45 See id. at 81-82.
46 Id. at 81.
47 Id.
48 426 P.3d 969, 971 (Alaska 2018).
49 Id. at 972.
50 Id. at 971.
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----------------------- Page 14-----------------------
claim[]' that Huber raises on appeal."51 Moreover, no facts beyond those already in the
record at the time of the prison administrator's unexplained decision would have been
relevant to determining whether that decision afforded a meaningful basis for judicial
52
review.
Valoaga's case is different than Walker and Huber . Unlike the inmate in
Walker, Valoaga never brought the underlying issue of saliva tests to DOC's attention
during administrative proceedings. The record is silent as to whether Valoaga ever
asked for or was offered a saliva test. In his appeal to the superintendent, Valoaga
asserted that he "immediately wrote to medical to see if there was another way to make
sure of compliance in a situation of this nature," but he did not mention saliva tests or
53
suggest that the failure to offer him one was a violation of his due process rights.
And unlike Huber, both prison administrators' expertise and additional
facts seem relevant to whether a prison is required to offer, without being asked, a saliva
test to an inmate who does not produce a urine sample within the required period of
time. Facts such as the availability, cost, and effectiveness of alternative testing
methods might be important to such an inquiry.54 Because Valoaga did not raise the
51 Id. at 972 (quoting Walker, 421 P.3d at 80).
52 See id. at 972-75.
53 For support, Valoaga referred to a document attached to his appeal, but
we do not find any reference to saliva testing in the administrative record before us.
54 See Turner v. Safley, 482 U.S. 78, 89-90 (1987); Ramey v. Hawk, 730 F.
Supp. 1366, 1370-71 (E.D.N.C. 1989) ("In Turner, the Court articulated four factors to
be considered in evaluating the reasonableness of a prison regulation: (1) whether there
is a 'valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it;' (2) 'whether there are alternative means
of exercising the rights that remain open to prison inmates;' (3) 'the impact
accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally;' and (4) 'the absence of
ready alternatives.' (quoting Turner, 482 U.S. at 89-90)). Ramey applied the factors
14 7737
----------------------- Page 15-----------------------
saliva test issue in administrative proceedings, he did not put DOC on notice that it
would need to introduce facts relevant to saliva testing into the record.
The failure to exhaust is compounded by the fact that Valoaga did not raise
the issue in superior court until his reply brief. Had DOC known that its drug testing
policy was being challenged, it might have requested a limited trial de novo55 to
introduce evidence justifying its policy and to aid the court in its constitutional analysis.
But DOC was not on notice of the need to do so. Although the superior court addressed
the issue despite recognizing it was "almost certainly waived," we decline to decide this
constitutional question when DOC did not have notice of the need to produce relevant
evidence. Valoaga's challenge to DOC's drug-testing policy is waived.
CONCLUSION
We AFFIRM the decision of the superior court.
from Turner to uphold a drug testing policy similar to the one challenged in this case.
See Ramey, 730 F. Supp. at 1368-71.
55 See Alaska R. App. P. 609(b)(1) ("In an appeal from an administrative
agency, the superior court may in its discretion grant a trial de novo in whole or in
part.").
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