Sec. 12.08.01.19. Exception to Decision (Appeal)

A. Filing of Exceptions.

(1) The Commissioner of Corrections, the inmate, or the Commission on its own motion may file written exceptions to any recommendation of a hearing examiner which has been adopted by the Commission.

(2) The exceptions shall be filed within 5 days after receipt of the written decision.

(3) Decisions of cases heard by two or more Commissioners are not subject to exceptions.

(4) A recommendation of a hearing examiner which is not adopted by the Commission shall be treated in the same manner as if exceptions had been filed.

B. Disposition of Appeal.

(1) Upon receipt of exceptions or the non-concurrence of the Commission with a recommendation of a hearing examiner, the Chairman shall assign not less than two commissioners as an appellate panel to review the case on the record.

(2) The appellate panel shall, in the administrative offices of the Commission, review the record of the parole hearing, review the case file, consider the written recommendation of the hearing examiner, and the exceptions to the recommendation. The panel shall then, by a majority vote, render a final decision which shall be in writing and served upon all interested parties within 30 days of receipt of the exceptions.

(3) If the panel consists of only two commissioners and they cannot concur, a third commissioner shall be assigned to the panel and the decision of the majority shall be final.

C. Appellate Decision.

(1) The panel may elect to do the following:

(a) Affirm the decision of the examiner;

(b) Reverse the decision of the examiner and render a new decision;

(c) Modify the decision of the examiner;

(d) Remand the case to the examiner for further consideration and a new decision.

(2) Remand.

(a) A remand will be made when, in the opinion of the appellate panel, the examiner should have had additional information before making the decision.

(b) The examiner shall, immediately upon remand, request the necessary information from the appropriate source. If the information requested is not a psychological report, a psychiatric report, or other privileged information, the information shall be forwarded to the institutional parole agent where the individual is confined for the purpose of inmate review pursuant to Regulation .17C(5), providing the inmate has previously requested, and been provided a file review. Thereafter, the requested information shall be transmitted back to the hearing examiner for recommendation to the reviewing commissioner. If the inmate did not request a file review, the information shall be forwarded directly to the hearing examiner for recommendation to the commissioner.