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COURT OF APPEALS DECISION DATED AND FILED December 13, 2007 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Dane County: Maryann sumi, Judge. Affirmed.
Before Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Darnell Jackson appeals from an order affirming a prison discipline decision. We affirm.
¶2 Jackson was found guilty of inciting a riot. On certiorari review, the circuit court
affirmed the decision. Review on certiorari is limited to whether:
(1) the agency kept within its jurisdiction; (2) it acted according to
law; (3) its action was arbitrary, oppressive or unreasonable and represented
its will and not its judgment; and (4) the evidence was such that it might
reasonably make the order or determination in question. Coleman v. Percy, 96 Wis. 2d
578, 588, 292 N.W.2d 615 (1980). We
review the decision of the administrative agency, not the decision of the
circuit court. State ex rel.
Sprewell v. McCaughtry, 226 Wis. 2d 389, 393, 595 N.W.2d 39 (Ct. App.
1999).
¶3 Jackson
first argues that his placement in temporary lock-up before the adjustment
committee hearing deprived him of his ability to marshal the facts and present
his defense to the committee. The
circuit court rejected this argument because the issue was not raised by
Jackson before the adjustment committee or during the administrative review
process, and therefore he failed to exhaust his administrative remedies. Jackson’s brief on appeal does not dispute
this conclusion, either factually or legally.
Therefore, we affirm on this issue.
Jackson also argues that the adjustment committee lost competence to
exercise its subject matter jurisdiction due to the alleged illegality of his
earlier detention, but he cites no authority that reasonably can be read as
leading to this conclusion.
¶4 Jackson
argues that it was not proper for a certain lieutenant to be a member of the
adjustment committee, due to the fact that she participated in the
investigation of the incident. His
argument is based on an administrative rule and on due process case law.
¶5 We
first address the applicable rule. It
provides in relevant part: “No person
who has substantial involvement in an incident, which is the subject of a
hearing, may serve on the committee for that hearing.” Wis.
Admin. Code § DOC 303.82(2) (Dec. 2000). Jackson argues that the lieutenant’s
involvement in the investigation of this incident precludes her from serving on
the committee. The respondents argue
that involvement in the “incident” should be read as meaning only involvement
in the facts giving rise to the disciplinary charge, and not to the
investigation of the incident. Both
readings of the rule may be reasonable, and the rule may therefore be
ambiguous. However, we conclude that we
need not resolve this issue, based on our review of due process case law.
¶6 In
addition to the rule, Jackson relies on due process principles. The main legal authority he cites is a
quotation he attributes to a leading case on the subject, to the effect that
due process is satisfied as long as no member of the disciplinary board has
been involved in the investigation.
While Jackson’s citation appears to attribute this quotation to the
majority opinion, it actually appears in a dissent. See Wolff v. McDonnell,
418 U.S. 539, 592-93 (1974) (Marshall, J., concurring in part and dissenting in
part). The majority opinion’s discussion
of the required impartiality of committee members is not as specific on this
point. See id. at
570-72. However, in a footnote
collecting federal Court of Appeals cases on disciplinary proceedings, the
majority noted that an impartial hearing board has been required, “to the
extent that a member of the board may not participate in a case as an
investigating or reviewing officer.” Id.
at 572 n.20, (citing Clutchette v. Procunier, 497 F.2d 809 (9th
Cir. 1974)). Our research shows that the
Supreme Court has not decided this issue since then.
¶7 As
discussed above, the respondents argue that the DOC rule should be interpreted
to exclude only persons involved in the facts of the alleged violation, and not
in the investigation. They argue that
their interpretation of the standard in that rule is “similar to that required
by considerations of due process.” In
support of that proposition they cite two federal Court of Appeals decisions
from 1979 and 1983, one from the Third Circuit and one from the Seventh. These contain due process language referring
only to the involvement of committee members in the incident itself or in the circumstances
underlying the charge. However, neither
reaches any conclusion about whether investigating officers are permitted on
the committee.
¶8 The parties are apparently unaware that since then the Seventh Circuit has squarely held that “[i]f an officer is substantially involved in the investigation of the charges against an inmate, due process forbids that officer from serving on the adjustment committee.” Whitford v. Boglino, 63 F.3d 527, 534 (7th Cir. 1995); see also Gaither v. Anderson, 236 F.3d 817, 820 (7th Cir. 2001) (applying Whitford, 63 F.3d at 534); Piggie v. Cotton, 342 F.3d 660, 667 (7th Cir. 2003) (due process forbids “officials who are directly or substantially involved in the factual events underlying the disciplinary charges, or the investigation thereof, from serving on the board hearing the charge,” (citing Whitford, 63 F.3d at 534)).
¶9 To summarize, Jackson has provided us with no authority to support his contention that an adjustment committee member is not permitted to have had any involvement in the investigation at all. As far as we have discovered, due process case law holds at best that substantial involvement is not permitted. Similarly, even if the DOC rule is read most favorably to Jackson, at best it prohibits only substantial involvement, not all involvement. However, for the reason that follows, we conclude it is not necessary in this case for us to decide whether to adopt the Seventh Circuit case law, or to resolve any ambiguity in the DOC rule. Even if we did so, Jackson has not shown a basis for reversal.
¶10 Jackson
does not attempt to argue that the lieutenant’s involvement in the
investigation was substantial. He argues
simply that no involvement is permitted.
His argument essentially is that when the inmate complaint examiner
found, in response to Jackson’s complaint, that the lieutenant did not have
“substantial involvement in the investigative process,” this was a concession
that there was, in fact, some involvement.
However, even if we were to agree with that reading of the decision,
that would not by itself lead to relief for Jackson. The question would instead become whether the
involvement was “substantial,” a point Jackson does not attempt to
address. Therefore, we affirm the
conclusion that the lieutenant properly served on the committee.
¶11 Jackson
next argues that the committee improperly relied on two confidential informant
statements. He argues that the
statements were not notarized, as is necessary for compliance with the rule
requiring the statements to be under oath.
See Wis. Admin. Code § DOC
303.86(4) (Dec. 2000). We have reviewed
the copies of the statements provided to us in the record, and both are
notarized. Jackson also argues that the
two statements did not meet the rule’s corroboration requirement, which
provides that, to be considered by the committee, a confidential informant
statement must be corroborated by other evidence. The rule provides that two confidential
informant statements can corroborate each other, and the respondents argue that
this was the basis for admitting these statements.
¶12 We
conclude that the statements corroborate each other. The underlying concern in the corroboration
requirement is whether there is some ground to believe the informant's
statement is reliable. Both of statements in
this case say, essentially, that Jackson is a gang leader and, before this
incident occurred, he was huddled with other inmates, including the ones who
assaulted the staff. These are significant facts on which both informants
agree, and this is a sufficient basis to conclude that the statements
corroborate each other.
¶13 Jackson’s
corroboration argument also includes arguments that are more accurately seen as
relating to the sufficiency of the evidence to sustain the finding of
guilt. On certiorari review, we apply
the substantial evidence test, that is, whether reasonable minds could arrive
at the same conclusion reached by the department. State ex rel. Richards v. Traut,
145 Wis. 2d 677, 680, 429 N.W.2d 81 (Ct. App. 1988). The evidence of Jackson’s involvement was
sufficient. The confidential informant
statements show his contact with other involved inmates, and his statement to
the effect that the other inmates knew what they had to do in response to the
actions of corrections officers against a fellow inmate.
¶14 Jackson
next argues that exculpatory evidence, in the form of a videotape of the
incident and other prison areas, was withheld from him. He asserts the tapes would be exculpatory
because they would show that he was elsewhere in the prison when the alleged
events took place. However, Jackson has not provided us with any rule or case
law that gives him a right to exculpatory evidence. He argues that he has a right to present
physical evidence, but that argument does not establish that he is entitled to
obtain such evidence from prison officials.
¶15 Finally,
Jackson argues that the committee’s statement of the reasons for its decision
was insufficient to comply with due process requirements. We conclude the decision was sufficient.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).