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COURT OF APPEALS DECISION DATED AND FILED May 9, 2002 Cornelia G. Clark 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: Moria Krueger, Judge. Reversed.
Before Vergeront, P.J., Deininger and Lundsten, JJ.
¶1 PER CURIAM. Gary McCaughtry appeals from an order reversing a prison disciplinary decision against Leslie Schatz. On all but one of Schatz’s challenges to the decision, we conclude the adjustment committee did not err; on the remaining issue regarding timely receipt of the repair documentation, we conclude any error was harmless. We therefore reverse.
¶2 The conduct report charged Schatz with disruptive conduct for an incident that led to damage to a scale on the kitchen loading dock. The adjustment committee found Schatz guilty and imposed a sanction that included restitution in the amount of $415.42. Schatz appealed to the warden, who remanded it to the committee to hear testimony from a certain corrections officer and consider that testimony with all the evidence. The adjustment committee’s second decision was unchanged from the first one. Schatz again appealed, eventually reaching the circuit court. The circuit court agreed with Schatz on several issues, reversed the committee’s decision, and ordered McCaughtry to expunge the finding of guilt from Schatz’s record. McCaughtry now appeals.
¶3 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 action of the prison adjustment committee independently of
the trial court. State ex rel.
Whiting v. Kolb, 158 Wis. 2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990).
¶4 The rule against disruptive conduct has since been amended, but at the time it provided: “Any inmate who intentionally or recklessly engages in, causes or provokes disruptive conduct is guilty of an offense. ‘Disruptive conduct’ includes … overt behavior which is unusually loud, offensive, or vulgar, and may include arguments, yelling, loud noises, horseplay, or loud talking, which may annoy another.” Wis. Admin. Code § DOC 303.28 (Register, June, 1994, No. 462).[1] The term “recklessly” means
that the inmate did an act or failed to do an act and thereby created a situation of unreasonable risk that another might be injured. The act or failure to act must demonstrate both a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury.
Wis. Admin. Code § DOC 303.04(3).
¶5 Schatz argues that a reasonable person could
not find him guilty of disruptive conduct.
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). We conclude
that Schatz could reasonably be found guilty of disruptive conduct. The conduct report stated that a corrections
officer was informed by an inmate that while the inmate was weighing himself on
the kitchen scale, Schatz “jumped on” the scale and bumped the inmate into it,
causing damage to the scale. Although
there may have been other evidence that could reasonably lead to a different
conclusion, the committee could reasonably conclude that Schatz intentionally
engaged in horseplay.
¶6 Schatz
argues, and the circuit court agreed, that the committee erred by failing to
provide an explanation for its apparent rejection of his defenses of mistake
and involuntary intoxication. At the
first hearing on the conduct report, Schatz did not testify, but he did submit
a written statement. In that statement
he said that while performing his work duties, he was carrying a coffee urn and
attempted to step onto the scale to avoid an obstruction in his path, but
somehow lost his footing and balance, thereby striking the other inmate. He described this as a mistake defense under
Wis. Admin. Code § DOC
303.05(3), which provides that it is a defense if: “The inmate honestly erred …, and such error negates the
existence of a state of mind essential to the offense.” The “record of witness testimony” prepared
by the committee stated that the presence of the corrections officer who wrote
the conduct report was not requested at the hearing, and it did not describe
any testimony by him. However, the
committee’s decision stated: “The
committee contacted [the corrections officer].
He stated there was nothing in the inmate’s path.”
¶7 In
response to Schatz’s appeal, the warden remanded to the committee to reconvene
and hear testimony of the corrections officer.
For reasons that are not clear, the committee apparently did not allow
Schatz to be present at the reconvened hearing. Instead, Schatz submitted a document that objected to that
decision and listed several written questions for the corrections officer to
answer. One of those asked, “[I]s it
possible that there were flat carts and a food cart in the area of the scale
which would block the area to the store?”
The officer marked the “true” line that Schatz had provided, and added a
handwritten note: “I didn’t remember
anything on the floor that would have blocked the way.” In its second decision, the committee stated
that the officer “doesn’t remember anything on the floor that would have
blocked the inmate’s way to the store, so that he had to step on the scale in
order to get to the store. We find the
reporting staff credible.” We are
satisfied that this was a sufficient discussion of Schatz’s mistake
defense. The committee apparently
interpreted the officer’s response as being contrary to Schatz’s account.
¶8 Involuntary
intoxication is a potential defense under Wis.
Admin. Code § 303.05(2), if Schatz lacked substantial capacity
either to appreciate the wrongfulness of the conduct or to conform his conduct
to the rules. Schatz’s statement for
the committee’s first hearing said simply:
“I had also been working with Contact Cement just before going up to get
the urn of coffee, how much of an effect this might [have] had I don’t
know.” We do not believe the committee
erred by failing to expressly address this argument. The evidence supporting it was minimal, and although Schatz
claimed this as a defense, even in his own statement he said he did not know
how much of an effect the glue might have had.
¶9 Schatz also argues that restitution is not a permitted penalty for the offense of disruptive conduct because that offense is not listed in Wis. Admin. Code § DOC 303.83(5). That rule provides that in deciding on the punishment for an offense, the committee shall consider the value of the property involved, if the alleged violation was one of several property offenses listed there, and the list does not include disruptive conduct. Schatz interprets the rule to mean that the value of the property can be taken into consideration only for those listed property offenses, and therefore restitution cannot be ordered for other offenses. We do not agree with this interpretation. The rule provides only that the committee must consider the value of the property in certain kinds of cases. We see nothing in it that limits discretion to consider the value of property in other kinds of cases. If such a limitation on restitution was intended, we might reasonably expect to find it in Wis. Admin. Code § DOC 303.84(1), which lists the possible penalties. However, that rule authorizes the imposition of restitution in “every case where an inmate is found guilty.”
¶10 Finally, Schatz argues that he was not shown or given a copy of the papers documenting the cost of repairing the scale until he received the second decision from the committee, and therefore he was not able to challenge that amount or confirm that it complied with the method for valuing property provided in Wis. Admin. Code § DOC 303.72(5). Even if we assume, without deciding, that Schatz should have been given this information at some earlier point, we conclude that any error was harmless. See Wis. Admin. Code § DOC 303.87. Schatz has not suggested, either in this court or earlier in the administrative or circuit court proceedings, that he has any specific factual basis to challenge the correctness of the restitution amount or its compliance with § DOC 303.72(5).
By
the Court.—Order reversed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5 (1999-2000).
[1] All references to the provisions of Wis. Admin. Code ch. DOC 303 are to version ch. DOC 303 (Register, June, 1994, No. 462).