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 

DAVID C. NORDLUND, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF CORRECTIONS,

Appellee. 

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) Supreme Court No. S-18051 

Superior Court No. 3AN-20-08336 CI 

O P I N I O N 

No. 7633 – December 9, 2022 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Catherine M. Easter, Judge. 

Appearances: David C. Nordlund, pro se, Anchorage, 

Appellant. Andalyn Pace, Assistant Attorney General, 

Anchorage, and Treg R. Taylor, Attorney General, Juneau, 

for Appellee. 

Before: Winfree, Chief Justice, Maassen, Carney, 

Borghesan, and Henderson, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

DepartmentofCorrections (DOC) officers charged aprisoner with conduct 

or language likely to interfere with the institution’s orderly administration and security. 

Following a hearing, a DOC hearing officer imposed a suspended sentence of 10 days’ 

punitive segregation. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The prisoner appealed to the superior court, arguing that the charge was 

retaliatory and that he had been improperly denied the right to present in-person 

testimony at his hearing. The superior court rejected the prisoner’s arguments and found 

that DOC’s decision was supported by “someevidence,”reflecting thestatutory standard 

of judicial review.1 

The prisoner appeals. He argues that his due process rights were violated 

by the hearing officer’s failure to allow in-person testimony and by DOC’s failure to 

include in the record on appeal a surveillance video viewed at the hearing. He also 

argues that the superior court erred by applying the statutory “some evidence” standard 

of appellate review. Because we conclude that the prisoner has not shown that he was 

prejudiced by the lack of in-person testimony at the hearing or the surveillance video’s 

omission from the record on appeal, and because the superior court properly applied the 

statutory standard of review, we affirm the superior court’s decision. 

II. FACTS AND PROCEEDINGS 

A. Facts 

David C. Nordlund is a prisoner at Goose Creek Correctional Center. The 

prison’s rule handbook provides that a prisoner who walks from his cell to the bathroom 

and back after 10:00 p.m. may not visit with other prisoners en route or stray into other 

areas of the housing unit. According to an incident report written by Officer Lambing, 

one evening at 10:45 p.m. he observed Nordlund “stopping at several rooms and 

knocking on the windows and doors” after leaving the bathroom. Officer Lambing 

confronted Nordlund about this prohibited conduct, and, according to Officer Lambing, 

Nordlund reacted by becoming argumentative. 

Officer Lambing summoned help, and two more officers, Sergeant Jones 

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1 AS 33.30.295(b)(3). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and Officer McCormick, arrived to restrain Nordlund and escort him to segregation. 

According to incident reports, Nordlund refused to answer questions and instead accused 

the officers of harassing him. As the officers escorted him out of the housing unit, 

Nordlund allegedly “attempted to pull away and dictate the pace that [they] were 

walking.” He was written up for violating a DOC regulation that prohibits “engaging in 

a group or individual demonstration or activity that involves throwing of objects, loud 

yelling, loud verbal confrontation, or pushing, shoving, or other physical contact that 

disrupts or interferes with the orderly administration of the facility.”2 

Nordlund requested a disciplinary hearing. A hearing advisor acting on his 

behalf collected written witness statements from five individuals: two prisoners who 

witnessed the incident; Lieutenant Pasa, an officer who assisted in the response; and 

Officers Nelson and Vang, who assisted in escorting Nordlund to segregation. Nordlund 

also requested surveillance video footage of the incident. The other prisoners’ witness 

statements both denied thatNordlund had been disruptive or combative; Lieutenant Pasa 

endorsed what Sergeant Jones and Officer Lambing wrote in their incident reports; 

Officer Nelson recalled that Nordlund “may have had a couple of smart remarks like 

inmates do” but otherwise “didn’t give us any issues on the escort”; and Officer Vang 

reported that Nordlund “didn’t really give me a[n] attitude but was upset about going to 

seg.” 

At the disciplinary hearing the hearing officer read the incident reports and 

witness statements into the record. He then reviewed the surveillance video. It had no 

sound, but as described in the hearing’s recording, the video showed Nordlund stopping 

briefly at two or three other cells on his return from the bathroom. It also showed him 

talking to Officer Lambing and Sergeant Jones; Nordlund asserted that the footage 

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2 22 Alaska Administrative Code (AAC) 05.400(c)(15) (2017). 
showed Sergeant Jones berating him, but the hearing officer concluded that it showed the 

sergeantsimply askingNordlundquestions. ThehearingofficersummarizedNordlund’s 

testimony as disputing Officer Lambing’s version of their encounter. Nordlund testified 

that “[h]e walked out of the bathroom around the corner and someone else stepped out 

and [Nordlund] stopped to answer him and then said good night to some other prisoners 

and continued back to his room.” The hearing officer declined to hear in-person 

testimony from Nordlund’s witnesses, apparently considering their written statements 

sufficient. 

The hearing officer decided that Nordlund had violated the regulation 

prohibiting conduct “that clearly disrupts or interferes with the security or orderly 

administration of the facility.”3 

 He imposed 10 days of punitive segregation, all 

suspended if Nordlund went 180 days without another guilty finding. 

Nordlund appealed to the prison superintendent, arguing that he had been 

improperly denied the right to present in-person testimony, that the evidence did not 

establish his guilt by a preponderance of the evidence, and that the write-up was in 

retaliation for complaints he had made against the officers involved, some grievances he 

had filed, and pending litigation against DOC. The superintendent denied the appeal4 

and Nordlund appealed to the superior court. 

3 See 22 AAC 05.400(c)(15). 

4 The superintendent’s tersedecisionnoted that Nordlund had been observed 

“walking by other [rooms] in the Mod knocking on the windows” in violation of the 

rules and that “sanctions [were] [appropriate].” We assume that this statement was in 

response to Nordlund’s claim on appeal that the write-up was retaliatory. The 

superintendent did not otherwise discuss Nordlund’s appeal points, but because the 

superintendent affirmed thehearingofficer’s decisionwe assumehe accepted thehearing 

officer’s rationale. 

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B. Court Proceedings 

In superior court Nordlund reasserted his arguments that the write-up was 

retaliatory and that he had been improperly denied the right to present in-person 

testimony. The court rejected these arguments, deciding that the retaliation claim was 

unsubstantiated, that the hearing officer was entitled to rely on the witnesses’ written 

statements and not call them in person, and that the hearing officer’s decision was 

affirmable as supported by “some evidence.”5 While it is evident from the court’s 

decision that it listened to the recording of the disciplinary hearing, the surveillance 

video reviewed at the disciplinary hearing was not part of the record on appeal. 

Nordlund moved for reconsideration.6 He argued that the court had 

misunderstood the witness testimony, that it had erred by applying the “some evidence” 

standard of review, and that the surveillance video supported his case and should have 

been included in the record on appeal. In response, the court corrected an immaterial 

factual error7 but otherwise denied reconsideration. 

Nordlund appeals. 

III. STANDARD OF REVIEW 

We will reverse a DOC disciplinary decision only if we “find[] that the 

prisoner’s fundamental constitutional rights were violated . . . and that the violation 

5 See AS 33.30.295(b) (“A disciplinary decision may not be reversed . . . (3) 

because of insufficient evidence if the [hearing record] shows that the disciplinary 

decision was based on some evidence that could support the decision reached.”). 

6 The superior court correctly treated the motion as a petition for rehearing 

under the appellate rules. See Alaska R. App. P. 506(a). 

7 The court had mistakenly said that the statements of Nordlund’s prisoner 

witnesses “indicated that [they] spoke with Mr. Nordlund as he was returning to his cell 

from the bathroom.” One of the inmates wrote in his statement that he witnessed the 

incident, not that he spoke to Nordlund. 

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prejudiced the prisoner’s right to a fair adjudication.”8 “Whether an inmate has received 

procedural due process is an issue of constitutional law that we review de novo.”9 

“Whether a party has suffered prejudice is likewise reviewed de novo.”10 “When the 

superior court acts as an intermediate appellate court in an administrative matter, we 

independently review the merits of the administrative decision.”11 “A disciplinary 

decision may not be reversed . . . because of insufficient evidence if the record . . . shows 

that the disciplinary decision was based on someevidencethat could support the decision 

reached.”12 

IV.	 DISCUSSION 

A.	 Nordlund Was Not Prejudiced By The Hearing Officer’s Refusal To 

Accept In-Person Testimony. 

DOC regulations provide that a prisoner facing discipline has the right to 

“present witnesses and other evidence in the accused prisoner’s defense, . . . if written 

notice of the witnesses to be called or evidence to be admitted is given to the disciplinary 

tribunal no later than 24 hours before the hearing, unless good cause is shown why this 

time requirement cannot be met.”13 According to DOC, Nordlund did not request inperson testimony until the hearing itself; before thehearing hehad requested only written 

statements, which were duly collected by his hearing advisor and submitted at the 

hearing. Nordlund does not address the requirement of pre-hearing notice in his brief. 

8 AS 33.30.295(b)(1).
 

9 Brandon v. State, Dep’t of Corr., 73 P.3d 1230, 1233 (Alaska 2003).
 

10
 Walker v. State, Dep’t of Corr., 421 P.3d 74, 81 (Alaska 2018). 

11 Button v. Haines Borough, 208 P.3d 194, 200 (Alaska 2009). 

12 AS 33.30.295(b)(3). 

13 22 AAC 05.430(a). 

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He argues that by denying him the opportunity to present in-person testimony, DOC 

“denied him the opportunity to present an adequate defense[, because h]e was unable to 

flesh out the details and preserve an adequate record for review[,] leaving the adjudicator 

. . . to guess at what someone meant by a vague statement that was introduced as 

evidence.” Framing this issue as one of procedural due process, Nordlund cites 

Brandon v. State, Department of Corrections14 for the proposition that “inmates facing 

disciplinary action [are] entitled to call witnesses and to present documentary evidence.” 

We do not need to decide in this case whether DOC’s regulatory limitations 

on in-person testimony satisfy the demands of due process.15 “In order to reverse a 

disciplinary decision, we must find both that a constitutional right was violated and that 

the violation prejudiced the inmate’s right to a fair adjudication.”16 In Walker v. State, 

Department of Corrections, for example, a prisoner alleged adueprocess violation based 

on the hearing officer’s failure to call the prisoner’s witnesses.17 Finding a due process 

violation, we held that it was prejudicial because the prisoner’s “proposed witnesses 

couldhavehelped resolve[an important] factual dispute”by corroborating theprisoner’s 

version of events.18 In Huber v. State, Department of Corrections, a prisoner alleged a 

due process violation when the hearing officer’s decision contained “no information 

14 865 P.2d 87 (Alaska 1993). 

15 In addition to the prehearing notice requirement, 22 AAC 05.430(c) allows 

the hearing officer to decline to call a prisoner’s requested witness in order “to avoid 

repetitious or irrelevant evidence.” 

16 Huber v. State, Dep’t of Corr., 426 P.3d 969, 975 (Alaska 2018). 

17 421 P.3d 74, 76 (Alaska 2018). 

18 Id. at 82. 

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about the evidence relied on or the reasons for the . . . decision.”19 Again finding a 

constitutional problem, we found prejudice as well, because without “any statement of 

reasons for [the] disciplinary decision[,] . . . [the prisoner] could not know which 

evidence ‘formed the basis of the hearing officer’s guilty finding’ or whether the hearing 

officer correctly applied the regulation at issue[,] . . . . preclud[ing] meaningful review 

of the . . . decision.”20 

Here, however, Nordlund does not explain how in-person testimony could 

have changed the result of the disciplinary hearing, citing as prejudice only a minor 

factual error that played no part in the hearing officer’s decision.21 He does not say what 

information he could have elicited from witnesses testifying in person that was not 

already contained in their written statements. Given the lack of demonstrated prejudice, 

we cannot conclude that the hearing officer’s decision of this issue violated Nordlund’s 

right to procedural due process. 

B.	 Nordlund Was Not Prejudiced By The Fact That The Surveillance 

Video Footage Of The Incident Was Not In The Superior Court 

Record. 

The record on appeal from an administrative agency “properly consists of 

evidence that was either ‘submitted to’ or ‘considered by’ the administrative board.”22 

“Physical exhibits will be retained by the agency unless specifically requested by the 

19 426 P.3d at 973-74. 

20 Id. at 975 (quoting Walker, 421 P.3d at 82). 

21 See supra note 7. 

22 Alvarez v. Ketchikan Gateway Borough, 28 P.3d 935, 939 (Alaska 2001) 

(quoting Oceanview Homeowners Ass’n, Inc. v. Quadrant Constr. & Eng’g, 680 P.2d 

793, 798 (Alaska 1984)). 

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court.”23 However, “[t]he loss of an administrative record is in itself not a violation of 

due process.”24 

Nordlund argues that he was denied due process because DOC failed to 

include the surveillance video of the incident in the record on appeal to the superior 

court. We certainly agree that the video should have been included. But Nordlund again 

fails to demonstrate that the omission of video evidence — lacking sound – prejudiced 

his right to appeal discipline that was essentially for disruptive speech. The superior 

court, listening to the recording of the DOC hearing, heard Nordlund’s and the hearing 

officer’s different views of what the video showed them. Nordlund asserted that the 

video showed him acting calmly while Officer Jones berated him, treated him like a 

child, and madeintimidating gestures. Thesuperior court also heard the hearing officer’s 

explanation that although he agreed the video did not show Nordlund being physically 

combative, the lack of audio meant that it did not convey the participants’ words or “tone 

of voice.” To the hearing officer, the corrections officers appeared to be gesturing 

upstairs and asking Nordlund what happened, not berating him, and lacking an audio 

record the hearing officer chose to rely on the officers’ written reports of what was said. 

Nordlund does not assert how the lack of video evidence was prejudicial 

to his case, apart from arguing that it would have supported his defense in a general way. 

Without audio, the video could not disprove the officers’ statements that Nordlund was 

verbally “combative” and refused to cooperate with their attempts to question him. We 

conclude that the agency’s failure to include the surveillance video in the record on 

appeal did not violate Nordlund’s right to procedural due process. 

23 Alaska R. App. P. 604(b)(1)(B)(iii). 

24 Carlson v. Renkes, 113 P.3d 638, 643 (Alaska 2005). 

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C.	 The Superior Court Properly Relied On The “Some Evidence” 

Standard Of Review. 

The Alaska Administrative Code describes DOC’s burden at the 

disciplinary hearing: “[T]he disciplinary tribunal shall, by a preponderance of the 

evidence, find whether the prisoner has committed the infraction.”25 The standard of 

review on a judicial appeal is imposed by statute, AS 33.30.295(b)(3): “A disciplinary 

decision [by DOC] 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.” (Emphasis added.) Nordlund argues that the “some 

evidence” standard of appellate review violates due process. He contends that “[i]f a 

decision may not be overturned if some evidence supports this decision, and [a DOC] 

employee[’s] written report [alone] satisfied this standard, then the preponderance of the 

evidence standard” in the Alaska Administrative Code is meaningless. 

If there is a conflict between the regulation and the statute, the statute 

controls unless we determine it to be unconstitutional.26 And while we have never 

explicitly addressed the constitutionality of the “some evidence” standard under Alaska 

law, the U.S. Supreme Court has deemed the standard constitutional under the U.S. 

25	 22 AAC 05.420(b)(5)(D). 

26 See Sagoonick v. State, 503 P.3d 777, 804 (Alaska 2022) (“A regulation is 

invalid if it ‘conflicts with other statutes.’ ” (quoting Manning v. State, Dep’t of Fish & 

Game, 355 P.3d 530, 535 (Alaska 2015))); Frank v. State, 97 P.3d 86, 91 (Alaska App. 

2004) (“[W]hen a regulation conflicts with a statute, it is the regulation that must yield.” 

(quoting Gudmundson v.State,763 P.2d1360, 1363(AlaskaApp. 1988))); United States 

v. Maes, 546 F.3d 1066, 1068 (9th Cir. 2008) (“[A] regulation does not trump an 

otherwise applicable statute unless the regulation’s enabling statute so provides.”). 

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Constitution,27 and manystatecourts have done the same under their stateconstitutions.28 

The U.S. Supreme Court explained: 

Prison disciplinary proceedings take place in a highly 

charged atmosphere, and prison administratorsmust 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. [Disciplinary decisions are] not comparable to 

a criminal conviction, and neither [is] the amount of evidence 

necessary to support such a conviction.[29] 

We agree with this rationale and conclude that the “some evidence” standard satisfies the 

Alaska Constitution as well.30 The superior court properly applied the “some evidence” 

standard of review mandated by AS 33.30.295(b)(3).31 

27 See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455­

56 (1985). 

28 See, e.g., Muntaquim v. Kelley, 581 S.W.3d 496, 500-01 (Ark. 2019) 

(holding prison disciplinary decision supported by “some evidence” cannot be basis of 

First Amendment retaliation claim); In re Gomez, 201 Cal .Rptr. 3d 124, 133 (Cal. App. 

2016); Kodama v. Johnson, 786 P.2d 417, 420 (Colo. 1990); State v. Iowa Dist. Ct. for 

Jones Cnty., 888 N.W.2d 655, 668-69 (Iowa 2016); May v. Cline, 372 P.3d 1242, 1245 

(Kan. 2016); In re Anderson, 772 P.2d 510, 512 (Wash. 1989). 

29 Hill, 472 U.S. at 456 (citations omitted). 

30 Like the U.S. Supreme Court, Alaska courts have recognized the 

importanceofgiving prison administrators “ ‘wide-ranging deference intheadoptionand 

execution of policies and practices that in their judgment are needed to preserve internal 

order and discipline and to maintain institutional security.’ ” State v. Avery, 211 P.3d 

1154, 1157 (Alaska App. 2009) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). 

31 We also agree with the superior court that the evidence against Nordlund 

satisfied the “some evidence” standard. The disciplinary decision was based on the 

(continued...) 

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V. CONCLUSION 

The superior court’s order denying Nordlund’s appeal is AFFIRMED. 

31 (...continued) 

incident reports of two correctional officers, both of whom were present at the time of 

Nordlund’s alleged misconduct. These officers’ reports were endorsed by a third officer, 

and the hearing officer was able to review video evidence of the incident — which, while 

it did not obviously confirm the officers’ version of the incident, did not obviously 

contradict it either. In Hill, in contrast, the court upheld a disciplinary decision that was 

based solely on one officer’s uncorroborated observations. 472 U.S. at 456-57. 

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