*1 justice, the interest of interest individual and in the orderly sys- justice administration of our criminal tem, appeals’ up- I would affirm the court decision holding against complaint dismissal criminal Kramsvogel in this case. of Wisconsin ex rel.
State Myrle Hoover, Jr., Petitioner-Respondent, G.
v. Gagnon, Appellant-Petitioner. John R.
Supreme Court Argued April 3, 31, May No. 1985.—Decided 1985. 84-460.
(Also reported 657.) in 368 N.W.2d *2 argued appellant-petitioner For the cause general, attorney Blech, with whom A. assistant Charles attorney Follette, was Bronson C. La on briefs general. petitioner-respondent
For the there awas brief argument by oral Elizabeth E. Stephens, assistant state public defender.
DAY, unpublished J. This is review anof decision appeals the court affirming an order of the circuit Dodge court for county, Wells, Honorable Thomas W. judge. circuit The circuit court’s order vacated de- cision of the prison committee in a disci- plinary action punishment and remitted imposed by all against Myrle that committee Hoover, G. an inmate at the Fox Lake Correctional Institution. The circuit court also ordered Mr. expunged. Hoover’s record be
The issues raised on this review are: *3 (1) Did Hoover execute a valid waiver of Mr. his process” to the formal “due to which he was entitled under Wis. Admin. Code section HSS 303 (1980)? (2) If Mr. Hoover execute a did valid waiver of his process hearing, protections to a formal due do the of 303.86(4) (1981), Wis. Admin. Code section HSS concerning testify, apply to witnesses who refuse to disciplinary hearings informal under Admin. Wis. Code section ? HSS 303.75 (3) Was the record on return to the writ of certiorari
required to contain the actual of a con- statement summary fidential inmate informant or a of that actual statement sufficient? a waive his conclude that Mr. Hoover did We process disciplinary that HSS formal due hearings, disciplinary apply does not to informal including summary confidential informant’s that a of the deprive Hoover Mr. statement was sufficient and did any rights. We, therefore, of reverse the decision rein- appeals court court of and that of the circuit adjust- discipline by the imposed state the decision and ment committee. July 26, 1983, approximately a.m.,
On in- at 12:35 an security mate at the informed officers Fox Lake Correc- attempting tional Institution had Mr. Hoover been apart Upon inspection to take a window. bathroom officers discovered that the screen had cut and the been They window had been broken. also discovered one security missing screws was from the window paint frame and the had been off several other scratched screws. summary
According state- of the confidential informant, heard ment the inmate informant coming approximately at 11:00 from bathroom noises p.m. hallway The informant went into the and observed rag. holding object wrapped Ap- Mr. Hoover an glass proximately later, heard ten minutes the informant to- break and he looked out the window of his room pane glass ward the source of the A was broken noise. out of the bathroom window. The informant went into loitering bathroom and Hoover there. found Mr. Shortly room, he returned to his the informant after straining. He like metal noise which sounded heard a again gloved hand window and looked out of his saw grabbing frame. He went bathroom window standing window. bathroom saw Hoover near the present. No were other inmates go and out Mr. Hoover security
A officer had seen *4 p.m. 11:15 times after of several the bathroom bathroom, inspected the security officers After the They found they inspected room. Mr. Hoover’s bed, fully and lying upon his dressed face down Hoover security officers the wearing In his room his work boots. fingernail clippers which gloves, pair a a of work found hole fit one file end would been altered so that the had window, in which the security a belt in the screws in the masking nail. tape, a bent covered buckle was with and squeegee bathroom the officers found a brass wrapped in a towel.
Mr. Hoover he claimed that wore his clothes to bed to weight. lose He also claimed that he wore his shoes to pain bed to migraine ease the of his headaches. A 26, July charging conduct 1983, was filed on Mr. Hoover attempted escape with of violation Wis. Admin. (a)-A (1980)1 Code section 303.22 and dam- age to property in of violation Admin. Wis. Code section (1980).2 HHS July 303.35 28, 1983, On Mr. Hoover signed waiving a form disciplinary his to a formal July 29, 1983, On disciplinary Attempt. guilty attempt (1) “HSS 303.06 An is of inmate following violate a rule if the are all true: “(a) something The inmate to do which have intended would violation; been rule “(b) The inmate did acts he or intended which showed she to violate the rule at that time. “(2) attempts recordkeeping number used con- reports plus . duct shall be the offense’s A. number the suffix “(3) penalty attempt may for an be the same as for completed Table, offense. See HSS 303.84.” Escape. any “HSS 303.22 of fol- An inmate does who lowing permission escape guilty without and with the intent is of an offense: “(a) institution; Leaves an “(b) custody Leaves of of staff while outside member
institution; schedule; assigned “(c) her or not follow his or Does assigned “(d) he or she is area to the authorized which Leaves promptly. does not return any “(2) posseses Any materials with or inmate who makes escape guilty is offense.” intent to use them to of an Any property. Damage in “HSS alteration or any property destroys intentionally damages, or alters mate who guilty person authorization of the state or of another without an offense. damages, destroys “(2) intentionally alters Any inmate who supervisor property permission or her his own without guilty living his of an offense.” or her own unit *5 140 Mr. Hoover found adjustment committee
held charges.3 guilty both certiorari. petition writ of filed a
Mr. Hoover filed on October the circuit court issued writ was on was filed the writ return to 21, 1983. A certified 1, November 1983. memo- 1984, filed a January 31, court the circuit
On vacated the decision which and an order randum decision discipline im- remitted the adjustment committee, of the that Mr. Hoover’s against Hoover, and ordered posed charges expunged. The court concerning record 4, 1984, affirmed September appeals, opinion filed its accepted this court court. This the order of the circuit a valid Hoover executed if Mr. review to determine process” “due to a formal waiver of his 303.86(4) apply in- provisions of HSS whether in- of this hearings, whether in the context formal confidential the actual statement required part of the certified informant was to be inmate return to the writ. reviewing certiorari the committee’s order on determining: (1)
reviewing limited Whether court is jurisdiction; kept whether within its according law; (3) arbi was it whether its action acted trary, unreasonable; oppressive whether might reasonably make the such that it evidence was Staples question. ex rel. order or determination in State 369, 370, DHSS, v. 363, 115 Wis. 2d 340 N.W.2d (1983).
(1) WAIVER involving Disciplinary proceedings within the inmates governed by custody of the Division of Corrections are given adjust days punishment, As Mr. Hoover six segregation days program sixty ment and three hundred segregation.
Wis. Admin.
(1980).
Code section HSS 303
HSS 303
provides
major
that an inmate accused of a
violation of
provisions
its
is
process”
entitled to a formal or “due
disciplinary hearing.4
disposition
major
The
of a
of
fense, including
requirements
hearing,5
the formal
governed by
HSS 303.76 to HSS 303.84. Wis. Admin.
Code section
303.64(c) (1980).6
HSS
parties
The
in this
dispute
case do not
that the
process” hearing
formal “due
provided by HSS
comply
303 does
with the minimum
requirements of
process
the due
clause of the Fourteenth
prison
Amendment
for
disciplinary proceedings as de
lineated in
v. McDonnell,
a valid waiver of his to a formal the use hearing of this procedure informal deprived him of that right.
Neither the circuit court appeals nor the court of validity addressed the issue of the of Mr. Hoover’s waiver of his hearing. to a formal The issue has been raised the first time on this review.
According to counsel, Mr. Hoover’s while the formal hearing procedure meets the minimum constitutional re- quirements Wolff, delineated in the informal procedure used in this case does not. Since the waiver rights, ais waiver of constitutional intelligently waiver must knowingly, and volun- tarily made. Hoover’s counsel asserts that the record does not show that Mr. Hoover was ever informed of his rights procedure the formal or what procedure Therefore, entailed. argues, counsel there is nothing to show that Mr. Hoover’s waiver was know- ingly intelligently made. Counsel claims that adjustment committee committed an error of law in dis- posing of Mr. Hoover’s case of an means informal appendix
HSS 303 and the notes in thereto make clear that the waiver of the a formal *8 pro- to be an informed decision. The note to 303.77 “(5) hearing finding guilty The write officer shall the charge, punishment each the it and the reasons for on the con- report security entry duct it and return to the office for record compliance disposition. and with the “(6) superintendent appoint The shall one or more staff mem- hearing Only persons eligible bers to serve as are officers. who adjustment may appointed. to serve on the committee be A hear- ing personal report, officer with in conduct direct involvement the hearing report. shall not a that hold on conduct “(7) may An inmate waive the this time limits in writing. section in “(8) may appeal disposition An inmate the of minor hear- ing days superintendent.” within to the any knowing, part: in vides “To ensure that waiver is intelligent one, informed of or the inmate must be his right hearing process her to a due and what that entails (HSS hearing 303.76(4)); will informed what the be (HSS process 303.76(5)) ; like if he or she waives due writing (HSS 303.76).” and the waiver must be in Wis. (1980) provides Admin. Code section HSS 303.76 that given following the inmate accused should be the infor- mation : major Hearing procedure for offenses— “HSS he or Notice The inmate shall be informed that ... hearing right process that he or she she has a to a due or writing. may right be inmate shall waive this in The hearing chosen, process informed that inmate if a due oral, documentary, may present written, physical voluntary eye evidence, in evidence from witnesses and sections; accordance these that he or she has a with with to the assistance of a staff advocate these accordance sections; may per- adjustment that committee questions require mit advocate or her direct the inmate or his questions adjustment to submit commit- witness; disrespect- repetitive, tee to be asked of the ful, the inmate questions forbidden; may and irrelevant be and that may finding appeal disposition and adjustment committee accordance with HSS 303.78. may that he or she “(5) informed The inmate shall be rights process due waive the to a specified (4). informed inmate shall be in sub. waived, the con- process if a due report disposed duct of as follows: shall be “ (a) appear officer The inmate shall before a adjustment as soon committee 303.75 or the under HSS days; possible but no later than as “ (b) may present her version The inmate his or facts; “(c) the conduct The staff member who made present;
need be “(d) officer or investigate may question the inmate decide otherwise and guilt inmate case shall or innocence of the punishment imposed; *9 finding punish- may appeal the and “(e) The inmate superintendent.” to the ment of his was informed Mr. Hoover that We conclude hearing procedure process” rights formal “due under the proce- rights he waive that should he retained was Mr. waiver Hoover’s conclude that dure. alsoWe voluntarily intelligently made. knowingly, and signed of for- July 1983, a waiver Mr. Hoover 28, On hearing provided: That form mal form. read, to certify or have had read I have “I also Report Notice Conduct
me, and both said understand Rights. Hearing I will receive I Major Disciplinary also understand sign waiver hearing if I this kind what speak sign waiver, to I that, I will able and in even if this my own defense.” waived The first also two alternatives. form guilt. hearing The second not admit the formal but did guilt. hearing admit box and did waived formal the form next checked on first alternative was signed by Mr. Hoover. signed he form in which
That Hoover a written read, had someone read certified that he or had had him, Major Disciplinary understood the Notice of strong Hearing Rights, Mr. Hoo- provides evidence that the formal involved in ver was informed what was was informed Further evidence that Mr. Hoover what of his to a formal provided by entailed the standard formal subject petitioner’s, form which of the .waiver Gagnon’s, supplement Superintendent R. John motion the record. writ certiorari was
When certified return to the court, from to the circuit sent the correctional institution signed photocopy form waiver however, photocopy, Mr. Hoover was included. The *10 signed by Mr. Hoover. only the form made of the side of photocopied form was not opposite side The return. the circuit court not included in the When was original expunged, the form Mr. record ordered Hoover’s destroyed by the signed by Mr. correctional Hoover Gag- compliance with that order. Petitioner institution supplement the record with a standard non now moves to may see what waiver form so this court signed by opposite Mr. form was stated on the side of the grant supplement record. the motion to Hoover. We signed by missing apparent side of form It is that the circuit return to the court Mr. omitted in the Hoover was by clerical error. signed by opposite Mr. the side
The of the form side Major Disciplinary Hear- contained the Notice of Hoover rights Rights. an ing notice contains the to which That major of a offense is entitled as inmate accused quoted It discloses accused’s above. advocate, confront witnesses and to staff present and witnesses on his evidence behalf. signed by ac- Hoover, form the side of the
On type procedure further informed of what cused is waive his would utilized the accused should 303.76, hearing. compliance it with HSS a formal provides: THAT, IF “10. YOU ARE FURTHER ADVISED A YOU WAIVE RIGHT TO DISCIPLINARY YOUR (S)
HEARING, THE VIOLATION WILL ALLEGED BE DISPOSED OF AS FOLLOWS: A HEAR- APPEAR BEFORE “A. YOU SHALL ING TEE THE ADJUSTMENT COMMIT- OFFICER OR LATER BUT NO AS SOON AS POSSIBLE THAN DAYS. OF “B. MAY VERSION YOU PRESENT YOUR THE FACTS. THE “C. THE MEMBER WHO WROTE STAFF BE TO NOT NEED CONDUCT REPORT DOES PRESENT. “D. THE HEARING OFFICER OR ADJUSTMENT QUESTION
COMMITTEE MAY AND YOU OTHER- WISE INVESTIGATE THE AND SHALL DE- CASE CIDE YOUR DECIDE GUILT OR INNOCENCE AND THE BE PUNISHMENT TO IMPOSED.”
Mr. Hoover certified had read, that he had had him, Major someone read to and understood the Notice of Hearing Disciplinary Rights. signed by waiver form Mr. Hoover contained that notice and that notice dis- rights closed the of the accused in a formal *11 procedure waiver form type also disclosed the which hearing would be followed should that formal be waived. Therefore, given that the deter- standard to be used to knowingly, mine if a waiver is valid is that the waiver be intelligently voluntarily made, and Mr. Hoover’s waiver to a formal was valid.
(2) 303.86(4) APPLICABILITY OF HSS Given that Mr. Hoover formal did waive his to a provisions the issue is whether the of Wis. 303.86(4) Admin. (1981) apply Code section HSS the hearing procedure informal under HSS 303.75. 303.- HSS 86(4) provides: “HSS 303.86 Evidence ... If a witness refuses testify person in if the committee finds that testi- fying witness, significant pose bodily would a harm to risk may corroborated, the committee consider a signed statement under oath from that witness without
revealing identity. the witness’s of the the The contents accused, though statement statement of the shall be revealed to the may revealing identity edited avoid may question witness. The the wit- committee nesses, they anonymous if are otherwise available. Two persons may statements different be used to corrobo- rate each A other. statement can be in corroborated following ways: either of the “(a) By substantially other evidence which corrobo- alleged eye- rates the facts as, in the such statement by a member circumstantial witness account staff or evidence; or very “(b) by the By of a similar violation evidence person.” same adjustment in case, relied instant part supplied by in- upon the the inmate information testify at Mr. The inmate informant refused to formant. witness. and remained confidential Hoover’s was de- Hoover’s counsel contends that Mr. Hoover nied be- he was entitled to under HSS 303.75 finding cause the committee never made a significant testifying posed bod- have risk of could ily conclude, harm to this con- confidential witness. We trary, appeals court, circuit to the court provisions apply 303.86 do to informal HSS hearings adjustment com- under that the HSS mittee not err as a did matter of law. 303.75(2) procedure out to be sets followed hearings as
informal minor cases such violations been this in which has to a provides: It waived. *12 procedure violations. Hearing for minor “HSS 303.75 appointed hearing officer, (2) ... At a the dis- (6), the conduct review under sub. shall shall be inmate cuss it with inmate. The the make a report and respond to the opportunity to with an statement about hearing offi- alleged violation. the right to may has no question The inmate cer inmate. the wit- witnesses, or to have advocate, to confront
a staff testify or her on his behalf.”11 nesses 11 provides (1980) section HSS 303.82 Admin. Code Wis. part: may- “Adjustment committee . . An committee. . process, if it hearing a even if the inmate has waived due hold hearing than to hold the convenient for the committee is more the hearing case hearing In that a officer. to schedule a before 303.75(2) provides
HSS simply hearing that the officer will review report, the conduct discuss it with the inmate give opportunity the respond inmate the to to the re- port concerning and make alleged a statement the viola- tion. It specifically states that the inmate has no to present or confront witnesses. provision
Since there is no for witnesses at the in- formal hearing, apply HSS 303.86 does not it because only operative testify. becomes when witnesses refuse to by terms, HSS 303.86 (4), contemplates its pro- a cedure in may which upon testify. witnesses called to hearing procedure The informal 303.75, of HSS does not provide for testimony. witness construing great rule,
“In consider the administrative given to ation should be to harm which the rule seeks the remedy sought prevent purpose or accom to be plished.” Staples DHSS, 2d State ex rel. 115 Wis. at v. provides pertinent 368-369. to HSS 303.86 The Note part: (4) permits identity with- to be “Sub. witness finding by officer held or after committee substantially endanger to the witness. that reveal it would arise, particu- problem, but This not often a it does accused, larly protect it in cases of assault. sexual To corroboration; required the state- is ment be under there be oath; statement be that the content of the revealed, safety In ad- inmate. with the consistent question may dition, the officer give
people who statements.”. designed protect accused. 303.86(4) to designed protect particular, it is the accused’s against presented him and his confront witnesses accomplished present witnesses on behalf. This is his limiting adjustment commit- which the instances in procedure before committee should follow the for a hearing officer.” *13 who refused may of a witness tee consider the statement com- testify person The at the accused’s to in signif- testifying pose a would must find that mittee bodily witness. The committee to the icant risk harm following reliability: the the indicia of must also find oath; was under statement statement made corroborated. neces- protection provided by is not HSS
sary Since under in an informal HSS 303.75. right present to or to has no confront accused inmate no basis there is witnesses at his informal con- 303.86(4). we application Therefore, of HSS 303.86(4) apply informal to that does not clude HSS hearings under 303.75. HSS to confrontation
There is no constitutional
disciplinary
prison
cases:
in
cross-examination
greater
present
“Confrontation
and cross-examination
confrontation
to
interests.
If
hazards
institutional
against
furnishing evidence
those
cross-examination of
the inmate were
in
for
course, as
as matter
be allowed
potential
trials,
be considerable
criminal
there would
appear
not
prison
it does
walls. ...
havoc inside the
generally
are
cross-examination
confrontation and
pro
disciplinary
required
ceedings]
prison
context
state
this
[of
be
.
should
think that the Constitution
We
McDonnell,
impose
procedure.
. .”
v.
read to
.
Wolff
(3) SUMMARY OF CONFIDENTIAL
INFORMANT’S STATEMENTS Mr. Hoover’s counsel also contends that failure to include the informant inmate’s actual in the statement re- turn to writ adequate denied Mr. Hoover a record for re- places significant view. Counsel upon reliance this court’s Staples decision in State ex rel. v. DHSS.
Staples involved a review a formal and the application 303.86(4). Staples, of HSS 2d at Wis. Staples, 367-368. In this court states: “In record, finding this there is no that the unidentified informant’s statement If was under oath. a return to the writ of have been been sealed ordered, certiorari had been the statement would brought up to the trial court. It could have judge’s inspection protect for the the iden- tity of judge the witness. In that way, the could see requirement if the of the administrative rule statement be under oath was met.” Staples, the obvious concern of court this was com- pliance provisions with 303.86(4). of HSS HSS 303.- however, inapplicable 86(4), to this case because Hoover Therefore, waived his formal to a there was no need to include the actual statement of the informant to determine if the statement was made under oath. summary
We conclude that of the in- use proceeding formant’s statement not this informal did deprive adequate the accused of an record on review. summary conduct were statement imposition sufficient show the factual for the basis penalty by committee. the informal Finally, Mr. Hoover’s counsel asserts provide do not violations for minor procedures major penalty deprivation. adequate process for due disagree. We proceeding dispute that the parties do *15 comply with minimum con- under 303 does HSS requirements. en- process Mr. Hoover was
stitutional due intelligently knowingly, yet hearing, titled to such a right. what the voluntarily He was informed waived that waiving right. prior to informal would entail speak given he was At the informal writing finding guilty was in own defense. of in his The committee’s decision. for the as were the reasons superintendent appeal to Hoover had the also (1980). 303.75(8) Code section under Wis. Admin. require more. The constitution does not jurisdic- adjustment within its committee acted The not tion, its law, a matter of action was it did not err as unreasonable, the evidence arbitrary, oppressive or reasonably supported and order. its decision appeals af-
By the of the Court. —The decision court The de- firming court is reversed. the order of the circuit discipline adjustment and the committee cision against imposed Mr. Hoover are reinstated. (dissenting). I J. ABRAHAMSON,
SHIRLEY S. circuit court would affirm the decision of the adjustment vacating appeals court of the decision is incom- record before this court committee. Because the must be plete, adjustment committee decision of the vacated. on first adjustment its decision based committee com- which statement,
the informant’s confidential given, to, notarized. freely sworn mittee was said Yet the informant’s sworn and notarized confidential is not in the statement record. The record before the cir- court, appeals, cuit court of only and this court contains summary of the informant’s confidential statement. summary prepared the informant. Furthermore, discrepancies there are between the sum mary of the informant’s confidential statement and other documents Significantly, summary in the record. way the statement in no indicates that the informant ever actually breaking glass saw Hoover of the bathroom. report, however, specifically An officer’s conduct states that “Hoover cut a screen out and was observed smash ing wing housing window in A out bathroom of 4.” unit provides part
HSS 303.76 offi- “[t]he may question cer or the inmate and investigate guilt otherwise case and shall decide the ‘punishment innocence the inmate and the to be im- posed.” (Emphasis added.) although majority Thus, concludes that Hoover waived his to a formal hear- ing, guilty it plead is clear that Hoover did not and that *16 under the rules he on was entitled to a decision based facts in the record which the institution established guilt. (2). his (4), HSS 303.75 correctly majority forth, reviewing As the “In sets reviewing committee’s order on certiorari court determining: kept limited to (1) Whether the committee jurisdiction; according within its (2) whether it acted law; (3) arbitrary, oppressive whether its action was unreasonable; whether the evidence was such might reasonably that it make the order or determination question.” Staples (citing P. State ex rel. v. DHSS, 363, 369, 370, 115 Wis. 2d 340 N.W2.d (1983)).
Given that confidential informant’s statement played major part adjustment in the deci- committee’s sion, part should have been a the record light appeal. it, contradictions and in on Without summary doc- of the statement other between the reviewing court can determine no uments in the record, according to law or acted acted whether arbitrarily was such that or whether the evidence might reasonably make the the committee decision question.
Although apart informant’s from the the evidence adequate commit- support statement decision, decision tee’s I affirm the committee’s cannot substantially on a document which rests before court. Plaintiff-Respondent-Petitioner, Ferraro,
Annunzio C.
v. Jorgenson, Defendants, Thomas P. Koelsch and Kevin Hyatt Milwaukee, Corporation, Hyatt Regency d/b/a
Defendant-Appellant.
Supreme Court Argued 2, January 83-1205. No. 1985.— 5, 1985. June Decided 666.) (Also reported in 368 N.W.2d