525 P.2d 191 | Or. Ct. App. | 1974
Lead Opinion
This is an appeal from a disciplinary order of the Superintendent of the Oregon State Correctional Institution (OSCI).
Petitioner was found guilty by an OSCI disciplinary committee of disobeying a direct order of a correctional officer (Bule 12), and, as part of the incident, urging another inmate not to give his name to the officer and menacing the officer.
The committee entered its order that petitioner be disciplined by requiring him to serve seven days in segregation, and to forfeit 30 days’ statutory good time.
Petitioner contends that the order is invalid for the following reasons:
(1) The officer’s preliminary misconduct report allegedly was not submitted to the superintendent during the same working day as the alleged violation, as required by Article III (2) (a) of the “Procedures for Disciplinary Action”;
(2) The disciplinary committee failed to follow the applicable rules of the Corrections Division relative to (a) notice and (b) advice as to the right to representation and to pose questions in such proceeding;
(3) The committee failed to make findings of fact and conclusions of law as required by ORS 183.470; and
(4) The committee failed to provide him a fair hearing as required by ORS 421.180 to 421.195.
As we understand the procedure, when an alleged infraction of the disciplinary rules occurs, the correctional officer must file a report of misconduct with the superintendent of the institution. This report must be filed during the same working day as the infraction, and might be termed the preliminary report of misconduct. Thereafter a second document entitled “Resident Misconduct Report” is prepared, a copy of which is delivered to the inmate.
The preliminary misconduct report, which appears to be the document on which petitioner’s first contention is based, is not one of the documents which is a part of the record required to be transmitted to this court under Article VI (4) of the above rules. We
Petitioner’s second contention is that the hearing record contains no evidence that he was given notice prior to the hearing or advised of his rights. Unlike in Moore v. OSP, 16 Or App 536, 519 P2d 389 (1974), upon which petitioner relies, the “Resident Misconduct Report” involved in the present case, and which is part of the record, contains this information. This statement of the charge and advice as to the inmate’s rights in connection with the hearing constitutes legal and sufficient notice. Furthermore, absent a showing by petitioner that he was in some way prejudiced in his defense by the fact that only 26 hours elapsed between notice and the hearing, we conclude that petitioner was not prejudiced thereby. See, Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974), where the court held, inter alia, that 24 hours’ written advance notice of a prison disciplinary hearing was sufficient notice to meet minimum due process.
“The provisions of ORS 183.415 to 183.500 do not apply to orders issued to persons who have been committed pursuant to ORS 137.124 to the custody of the Corrections Division.”
Since the order challenged here was issued to a person committed pursuant to ORS 137.124, ORS 183.470 is not applicable. However, while respondent was not required to comply with the provisions of ORS 183.470, there must be a.written statement by the fact-finders of the evidence relied on and reasons for the disciplinary action. Wolff v. McDonnell, supra; Morrissey v. Brewer, 408 US 471, 92 S Ct 2593, 33 L Ed 2d 484 (1972). We can find no such written statement in the record. We conclude therefore that this was reversible error and that this proceeding must be reversed and remanded.
On petitioner’s fourth point, these contentions (right of confrontation and cross-examination) were resolved against petitioner in Bonney v. OSP, 16 Or App 509, 519 P2d 383 (1974). Accord, Wolff v. McDonnell, supra.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Concurrence Opinion
specially concurring.
I disagree with that portion of the majority opinion which holds that there is no evidence that the
I do not read the rules as envisioning two written reports but, rather, only one. Rule III (2) provides that:
“When corrective action includes submission of a misconduct report.
“a. The employe shall submit a written report during the workday in which the violation occurred or was discovered and before leaving the institution at the completion of the workday.
“b. The written report shall include the identity of the inmate suspected, the time, date and events constituting the alleged violation, the rule violated, the name and position of the employe making the report and any corrective actions already taken and identify the authority for corrective action under Article III 4 below.
“c. The inmate shall be promptly informed that a report has been submitted and provided with a copy thereof, this may be done by any staff member.”
I interpret the above rule as meaning that the report which the officer must file on the same working day as the infraction, subsection a, supra, is the report of which a copy is to be provided to the inmate, subsection c, supra. I further interpret the rules as providing that this report be made a part of the record for the purpose of judicial review, Rule VI (4)(b)(i), “* * * the record shall contain: (i) The notice of violation.” Indeed, nothing in the procedural rules refers to more than one report in connection with an alleged
Only one misconduct report is a part of the record in this case. It shows on its face that although the violation occurred at 7:35 a.m. on January 15, 1974, the report was not prepared until January 16, 1974. On this record, I would reverse on this additional ground of noncompliance with Rule III (2) (a).
True, it might be contended that this is a hyper-technical violation of the rule and that no prejudice has been shown.
As to the technical nature of the violation, I would answer as follows: In Bonney v. OSP, 16 Or App 509, 519 P2d 383, Sup Ct review allowed (1974), we held the Corrections Division has wide latitude to write procedural rules governing disciplinary hearings. Specifically, we sustained rules that substantially limit representation of inmates and prohibit cross-examination. It seems to me that the essential corollary to the wide latitude we allowed in Bonney is insisting that the Corrections Division strictly comply with its own rules.
As to the question of prejudice, I note that we have not yet decided whether, once a violation of the procedural rules is established, it is incumbent upon the prisoner to prove the presence of prejudice, or instead, it is incumbent upon the prison officials to prove absence of prejudice. See generally, State v. Bishop, 7 Or App 558, 492 P2d 509 (1972).
It could be reasonably argued that prison officials should be required to prove absence of prejudice. The legislature has determined that inmates should not be subject to major disciplinary sanctions without
However, for purposes of this case I do not think it is essential to resolve the question of who has the burden of proving the presence or absence of prejudice.