*1 719 24, Argued January 5, and submitted March affirmed 5, U.S. certiorari denied October GRISEL, E. WILLIAM Petitioner, v. al, OREGON STATE et PENITENTIARY Respondents. (No. 27277) 02-80-169, CA SC
James Scott respondents. Brown, James M. With him on the brief were Attorney Barrie, General, Salem, L. Solicitor and Walter General, Salem.
TANZER, J.
TANZER, J. prison disciplinary proceeding. This is a The Court Appeals affirmed the order and we allowed review. proceeding by
The was initiated a misconduct re- port alleging had one Smith at a stabbed specified place. and time stated: (eye 'T received information from an informant
witness) anonymous whose must remain as disclo- jeopardize personal safety sure would and whoseinfor- proven you [sic] said mation has reliable in the stabed eye Smith, witness, informant, inmate K. 41573.The punc- 'I saw Grisel stab Smith.’Inmate Smith receiveda approximately midway ture wound 1/4" wide between niple [sic] navel and 1 1/2"left of center.” guilt requested Petitioner denied his and that cer- questioned expectation they tain witnesses be in the They questioned would establish his alibi. were and did not guilty upon strength establish the alibi. He was found of the informant’s statement contained misconduct report. *3 complaint
Petitioner’s sole is that the statement "I support saw Grisel stab Smith” is insufficient to the find ing "conclusory because it is a statement” in that it does not stabbing place state how or where the took and therefore compared cannot be to the other evidence in the case. upon conclusory impermissible, Reliance statements is he argues, because it is inconsistent with the Corrections adopted pursuant Division rule which was to the order of the United States District Court in Bartholomew v. Reed, (D 1979). Supp F case, 223 Or In that the court held the previous rule of the Corrections Division to be invalid among because, reasons, other it the allowed ” rely upon 'conclusory representations.’ tribunal "to mere Supp pertinent provides: 477 F at 228. The current rule "(1) testimony pre- When unidentified informant is Hearings sented to the of the inform- informant, both, ant or the statement of the shall be Hearings revealed to the Officer. Hearings Information must be submitted to the Officer which the Officercan find that the is in the at issue.” Administrative reliable case VI(F)(l)(e). (Temp), Order 19-1979 complies The "I stab statement saw Grisel Smith” "the of with of the rule that statement requirement * * * shall be revealed to Officer.” statement not it is a statement of direct- conclusory; The is to ly observed fact. The failure of statement refer its additionally to time and to place goes completeness, but Therefore, it conclusory. does not render the statement fails. petitioner’s contention J., Buttler,
In the
Appeals,
Court of
dissented on
misconduct
comply
that the
failed to
with
ground
(1)
rule
the informant’s
state-
subsection
because
did not
detail
the location of the inform-
ment
include
as to
OSP,
the time
Grisel v.
47 Or App
ant at
of
observation.
(1980).
677,
This is a or a statutory not constitutional satisfies showing is whether question case. disci prison Corrections Division rule. In the context of knows that pline, prison a officer showing in of proved the informant has hearings is some evidence from can of reliability. Particularly light find the difficulties retribution in a protecting against involved informants prison setting, agency’s application cannot hold that the we rule was its unlawful.
Finally, application implies *4 of satisfy ruling rule in the the the new this case does not Reed, v. States District in Bartholomew United Court the rule We defer to that court to determine whether supra. and order with its complies order.
Affirmed.
723 LINDE, J., dissenting. Division by
The rule adopted Corrections process due as prison procedures, provide Court, ordered States as by provides United District follows: Hearings Officer by evidence considered by rea- credibility
will be of such as would be considered persons sonable the conduct of their affairs: "(a) informant, testimony pre- is When unidentified Hearings sented to the of the inform- informant, both, ant or or the verbatim shall Hearings be revealed to the Officer.
"(b) to the Information must be submitted Officer which can find that the Officer is reliable in the case at issue.” OAR, 291-105-041. The rule states two separate require- ments a before officer can order the hearings punishment of a on prisoner is said to hearsay information come from an unidentified informant. is that requirement One either the identity of informant or the statement of informant, both, be hearings revealed to the officer. The second is that information must submitted from be the hearings can find that is in the case at issue.
Each requirement has separate importance; disclo- sure not satisfy informant’s statement does the rule without additional his reliability to establish in the specific showing instance. This neces- sary to compensate at least in for the fact that part rule is designed informant, to shield on allega- whose sole tions the accused may punished, be from crossexamination and even from officer. hearing identification to the
The Cotut of reached divided conclusions Appeals concerning respondents’ with each of the compliance OSP, two v. Or 614 P2d requirements. App Grisel (1980). It i.e. a requirement, considered the second showing that in this satis- informant was reliable fied because "the the informant was an report revealed that eyewitness past.” and that had reliable in proven he Judge Buttler dissented: *5 stand, the officer who only know that
"As matters we the unnamed inform- receiving from reported information eyewitness he was an says that the ant tells us Smith; report does the officer’s that he saw Grisel stab and was, the informant that not state that he had determined fact, occurred.” time the incident in in the .area at the App 47 Or at 678. the unidentified
A states that merely which obviously eyewitness an that he was says the informant’s about nothing officer hearing tells bare, unadorned in that statement. making on a occa- "reliable” that an informant was assertion upon officer hearing sion does not give the informant that can hearing which officer find Such an requires. the rule as pending matter about subject describe the assertion does not and circumstances reliable, the time informant was nor truthful and his deemed statements that were prior circumstances, those or even how those relationship to and reliable. The truthful statements to be prior proved concerning was reliable that an informant bare occasion prior unidentified subject an unidentified on an the reporting to officer to leave hearing asks the simply and therefore the informant to believe officer decision that given to have reported he is to believe the statement officer. for a hear rule, provision
If that satisfied officers would investigating from the separate officer ing Its contrary.1 course, rule is to But, of be a charade. responsibility must take the hearing that provision information, inform "finding,” upon adequate for to be taken is meant case at issue” "is reliable ant seriously. provides: Division rule also
1 The Corrections or members shall the Committee Officer nor Neither reviewing investigation charging, participated in the case as a will have Committee, Further, of the person as a member no shall serve officer. commission investigator, to the was a witness an who or as any disputed knowledge material personal alleged misconduct or has relating being heard.” to the case fact OAR 291-105-041. segrega- prisoner to 12 months’
This was sentenced hearsay report an unidentified inform- tion regret major- "I I ant saw Grisel stab Smith.” said position ity, effect, in his sends this and others process the due that the back to the federal court secure interpreted, provide properly and, if intended to rule was provide. would
I would reverse. join Peterson, JJ, Lent in this dissent. and