Pollock v. Patuxent Institution Board of Review

823 A.2d 626

374 Md. 463

Michael POLLOCK, v. PATUXENT INSTITUTION BOARD OF REVIEW.

No. 106, Sept. Term, 2002.

Court of Appeals of Maryland.

May 8, 2003.

Mark Gitomer (The Law Office of Mark Gitomer, on brief), Owings Mills, for petitioner/cross-respondent.

Andrew H. Baida, Solicitor General (J. Joseph Curran, Jr., Attorney General of Maryland and Scott S. Oakley, Assistant Attorney General, on brief), Baltimore, for respondent-cross-petitioner.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.

CATHELL, Judge.

Since 1991 there has been recurring litigation between Michael Pollock, petitioner/cross-respondent (hereafter "petitioner") and the Patuxent Institution Board of Review, respondent/cross-petitioner (hereafter the "Board"). This is the second time a case between these parties has been before this Court. We granted certiorari in this appeal to decide whether positive urinalysis drug test results of a sample supplied by petitioner should have been excluded from evidence at petitioner's parole revocation hearing due to the failure of the staff of the Patuxent Institution (hereafter "Patuxent") to strictly comply with its own directive setting forth technical collection and documentation procedures for urinalysis samples.

In a previous appeal petitioner raised the issue that Patuxent's procedures had not been complied with and further that the chain of custody as to his specimen was improperly preserved. Pollock v. Patuxent Institution Board of Review, 358 Md. 656, 751 A.2d 496 (2000) (Pollock I). We remanded this case back to the Circuit Court for Howard County for it to decide whether the Board's decision not to renew petitioner's parole on the basis of the urinalysis results was arbitrary or capricious. On remand, the circuit court found that the urinalysis results were properly admitted and considered by the Board in revoking, and then not renewing, petitioner's parole order and specifically found that the Board's decision was not arbitrary or capricious. On September 3, 2002, the Court of Special Appeals affirmed. Pollock v. Patuxent Institution Board of Review, 146 Md.App. 54, 806 A.2d 388 (2002). On December 19, 2002, we granted both the writ of certiorari filed by petitioner and the conditional cross-petition filed by the Board. Pollock v. Patuxent, 372 Md. 429, 813 A.2d 257 (2002) (Pollock II). Petitioner presents two questions for our review:

"1. Is the Accardi doctrine and its exceptions, as explicated by the Supreme Court in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) and its progeny, applicable to administrative hearings in Maryland? ¹

"2. If the answer to question number 1 is `yes,' did the Court of Special Appeals erroneously apply the exception in this case?"

The Board essentially asked this Court to consider the same question as petitioner's question one, but phrased its question as follows:

"Does the Board's technical non-compliance with an internal Patuxent directive, which sets forth procedures governing the collection and handling of urine specimens from Patuxent inmates for the purpose of detecting illicit drug use, provide a basis for either invalidating the Board's revocation and non-renewal of Pollock's parole, or excluding the urinalysis drug test results upon which the Board based its decision?"

We adopt the "Accardi doctrine" and hold that it is applicable to administrative hearings in Maryland. We hold, however, that in the case sub judice, the Court of Special Appeals did not erroneously apply one of the exceptions under Accardi and its progeny. Patuxent's failure to comply with a part of its directive² pertaining to the collection and handling of urine specimens does not require the reversal of the Board's action to revoke and not renew petitioner's parole because the failure to comply technically with all of the PID 110-18 did not implicate fundamental constitutional rights of petitioner nor violate statutorily mandated procedure. What occurred constituted a technical mistake which did not substantially prejudice petitioner.³ We hold that when the Accardi doctrine, with its exceptions, is applicable, a complainant must also show prejudice to have the agency action invalidated.

Because this appeal involves a long-standing dispute and is the result of recurring litigation, the facts and legal proceedings to date need not be rewritten as the facts of this contested administrative case are settled. As such, we adopt the facts and legal proceedings which were recently and thoroughly summarized by Judge Adkins when this case was below. She wrote:

"FACTS AND LEGAL PROCEEDINGS

The Test

"Pollock, who killed a cab driver during an argument, was incarcerated in the Maryland Division of Correction as inmate number 4695 on November 23, 1971. He is serving a life sentence with the possibility of parole for first degree murder, plus two years consecutive for escape.

"In April 1980, Pollock was committed to Patuxent as a person eligible for Patuxent programs. He became eligible for parole in December 1985, and was paroled in September 1988. Pollock's most recent parole order was issued in June 1996, with an expiration date of May 1997.

"One condition of Pollock's parole was annual urinalysis testing to determine whether he was in compliance with the `no drugs' and `obey all laws' requirements of his parole order. On May 15, 1997, Pollock arrived at Patuxent to submit a urine sample. The specimen associated with Pollock tested positive for marijuana. According to Pollock, what happened during the collection and testing of this specimen requires exclusion of those test results.

"Sgt. A.P. Jones was on duty when Pollock arrived. Jones completed the required `Request for Urinalysis Test' form, certifying that `Micheal [sic] Pollock' had verified his identity by `I.D. card.' Jones certified, by signing the form, that Pollock had

`submitted a urine specimen in my presence in a specimen bottle labeled with the inmate's name and number and today's date, and thereafter the inmate handed me the bottle. I thereafter sealed the bottle with evidence tape, and maintained exclusive possession and control of the bottle until I transferred it from my possession and control as indicated below:....

`CHAIN-OF-CUSTODY OF SPECIMEN:

From above-named inmate To AP-Jones Date 5-15-97 Time 10:30 AM From APJones To Lock Refrigerator Date 5-15-97 Time 10:33 AM From Capt. L. Latham To P. Stuffey Date 5-15-97 Time 1:40 PM'

"Apparently in an attempt to use Pollock's inmate number as the number identifying Pollock's urine specimen, Jones filled in the blank for `number' on that form with '4697.' (Emphasis added.)

"At the same time he obtained Pollock's sample, Jones also completed another required Patuxent form, entitled `Incident Report.' Jones completed the `nature of incident' blank with the following handwritten note:

`On the above date and approx. time the above named inmate gave a urine sample for drug testing. The test was administered by this writer and observed by CO D[.] Taylor. The sample was secured in the locked refrigerator in the infirmary....'

Jones also used number 4697 on that Incident Report.

"A third form completed at the time Pollock submitted his urine sample, was entitled:

`Friends Medical Laboratory

Laboratory Testing Requisition Form'

"This form identified Patuxent as the `Collection Site' for `7' different specimens, one collected on May 8, another on May 10, and five on May 15, 1997. Listed under the `Specimen Identity' column of this form were handwritten names of seven different inmates. Each name appeared in a separately numbered box. The first line in each box identified the inmate's name in manuscript with a corresponding inmate number. On the second line, appearing right below the manuscript name and inmate number, each inmate signed the form.

"`Michael Pollock # 4669' is identified as the fourth specimen, dated `5-15-97,' and `collected by A.P. Jones & D. Taylor.' (Emphasis added.) In cursive, under his manuscript name and number, Michael Pollock signed his name and correctly identified himself as `# 4695.' (Emphasis added.) The form indicates `Capt. L. Latham' `released' the specimens to a courier from Friends Medical Laboratory (`Friends') on `5/15/97' at `1:35 pm.' and authorized Friends to test the specimens.

"The next day, on May 16, 1997, Friends tested a urine sample received on `05/15/97' that it identified as belonging to `Client: Pollock, Michael 4669.' (Emphasis added.) The results of this test showed that the sample was positive for marijuana. Friends faxed a copy of the test results to Patuxent on May 19, 1997.

"A parole revocation warrant was issued immediately. On May 20, Pollock surrendered and was returned to Patuxent. At a May 22 preliminary revocation hearing, Pollock denied using marijuana, but `admitted that he had been briefly in the presence of suspected marijuana smokers[.]' The hearing officer found probable cause for charges that Pollock had violated the terms of his parole, and ordered a parole revocation hearing.

"On May 23, at the request of Patuxent, Friends performed a `confirmation re-test,' with the same results. The confirmation test report identified the `client' from whom the sample was taken with the same typewritten `Pollock, Michael' that appeared on the original test report, but without the incorrect typewritten inmate number `4669.' Instead, handwritten immediately beneath Pollock's name is the following notation: `4695 Ref-P.' (Emphasis added.) It is unclear whether the person who added the handwritten inmate number was someone at Friends or at Patuxent.

"Revocation And Non-Renewal"

"Pollock's parole revocation hearing began on June 19, 1997 and concluded on July 17, 1997. At the hearing, Pollock moved to dismiss the revocation proceedings because he had not received timely notice of the hearing pursuant to Patuxent Institution

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