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COURT OF APPEALS DECISION DATED AND RELEASED October 5, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0384
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN
EX REL. JOHN S.
BERGMANN,
Petitioner-Appellant,
v.
GARY R. MCCAUGHTRY,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Dodge County:
THOMAS W. WELLS, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
DYKMAN, J. John S. Bergmann appeals from a judgment
dismissing his certiorari action.
Bergmann is an inmate at Waupun Correctional Institution (WCI) who was
disciplined after a Department of Corrections adjustment committee found that
he had sent a letter to his son in violation of a no contact order. Bergmann argues that: (1) he was denied his right to due process
because one of the hearing officers, Captain Torsella, was also named as a
defendant in a federal civil suit commenced by Bergmann;[1]
(2) he was denied his right to confrontation because he could not question
the prison officer who filed the conduct report against him; (3) he was
denied his right to present a defense; (4) there is insufficient evidence
to support the department's decision; and (5) the trial court erroneously
exercised its discretion in assessing filing fees and costs for the certiorari
action after concluding that Bergmann had not prevailed. We reject each of Bergmann's claims, and
therefore affirm.
BACKGROUND
In
March 1993, Lieutenant G. Schaller issued an order, instructing Bergmann not to
communicate with Melinda McCullough, Bergmann's former wife, and their
three-year-old son. Schaller issued
this order after McCullough informed him that Bergmann had been sending
harassing letters to them. On October
28, 1993, Bergmann was notified that pursuant to Wis. Adm. Code § Doc
309.05(6), all of his outgoing mail would be read. He was also notified that under Wis.
Adm. Code § Doc
309.05(4), mail sent to the President of the United States was exempt and would
not be not read.
On December 12, 1993,
Bergmann sent a letter to his son enclosed in an envelope addressed to the
President of the United States asking that the President's staff forward the
letter to his son. The letter which his
son received was postmarked from Washington, D.C., and in it Bergmann referred
to the "intentional emotional abuse" that McCullough and her husband
were inflicting on his son.
At a disciplinary
hearing on the matter, Lt. Schaller testified that the contents of his conduct
report, outlining what Bergmann had done, were true as written. Bergmann argued that the no contact order
violated his parental rights to communicate with his son and that he was being
deprived of due process as a result of the enforcement of this order. Bergmann denied that he violated the no
contact order or that he used the mails in an unauthorized fashion.
The adjustment
committee, comprised of Captain Torsella and Gene Nimmer, found Bergmann guilty
of knowingly and willingly violating the no contact order, contrary to Wis. Adm. Code § Doc 303.24(1)(a)[2]
and 303.48(1).[3] WCI warden, Gary McCaughtry, affirmed the
committee's finding of guilt. Bergmann
then filed a writ of certiorari with the trial court, and after briefing
on the matter, the court dismissed the action, assessing fees and costs against
Bergmann. Bergmann appeals.
STANDARD OF REVIEW
Review
of the department's decision is by certiorari since no statutory
provision has been made for judicial review.
State ex rel. Lomax v. Leik, 154 Wis.2d 735, 739, 454
N.W.2d 18, 20 (Ct. App. 1990). We may
reverse a disciplinary committee's decision only where: (1) the department's decision was arbitrary,
oppressive or unreasonable; (2) the inmate was denied due process; (3) the
department failed to keep within its jurisdiction; or (4) the evidence was
such making the department's decision unreasonable. Id. at 739-40, 454 N.W.2d at 20-21. Our scope of review of the factual findings
is not whether we would have arrived at the same conclusion as the department,
but whether reasonable minds could arrive at that conclusion. State ex rel. Richards v. Traut,
145 Wis.2d 677, 680, 429 N.W.2d 81, 82 (Ct. App. 1988).
IMPARTIAL HEARING
Bergmann
argues that he was denied his right to due process guaranteed by the Fourteenth
Amendment to the United States Constitution.
According to Bergmann, because one of the hearing officers on the
adjustment committee, Captain Torsella, was a defendant in an unsuccessful
civil rights action brought by Bergmann in federal district court challenging
the no contact order, he could not be impartial.
The adjustment committee
must be comprised of an impartial body, but it may contain members of the
prison staff. Wolff v. McDonnell,
418 U.S. 539, 571 (1974). In
conjunction with this rule, DOC regulations provide that "[n]o person who
has personally observed or been a part of an incident which is the subject of a
hearing may serve on the committee for that hearing." Wis.
Adm. Code § Doc 303.82(2).
In the instant case,
while Captain Torsella was a named defendant in the civil rights action, that
alone, is not sufficient to disqualify him from being a member of the
adjustment committee. Redding v.
Fairman, 717 F.2d 1105, 1112-13 (7th Cir. 1983), cert. denied,
465 U.S. 1025 (1984). Instead, we make
a case-by-case analysis of the prison officer's personal involvement in the
other lawsuit. Id. at
1113. See also Wis. Adm. Code § Doc 303.82(2). Other than being a named defendant in the
civil rights action, Captain Torsella appears to have no other interest in the
matter.[4] Captain Torsella did not issue the orders
Bergmann violated and he did not investigate Bergmann's conduct. Thus, Captain Torsella did not personally
observe nor was he a part of the incident which is the subject of this
hearing. Indeed, if Bergmann's argument
were adopted by this court, every time an inmate was disciplined, the inmate
need only name all of the prison staff as defendants, and no one could serve on
the adjustment committee. Consequently,
we reject Bergmann's argument that he was denied an impartial hearing.
CONFRONTATION
Bergmann
also argues that he was denied the right to confront his accuser, Lt. Schaller,
because Lt. Schaller was ordered to leave the hearing before Bergmann had the
opportunity to fully question him. An
inmate may request witnesses to appear and those witnesses shall attend the
disciplinary hearing. Wis. Adm. Code § Doc 303.81(3). But confrontation and cross-examination of
witnesses in the context of a prison disciplinary proceeding are matters left
within the sound discretion of the prison officials. Wolff, 418 U.S. at 567-69.
Lt. Schaller appeared at
the disciplinary hearing and testified to the accuracy of the conduct
report. Bergmann had no right to
cross-examine him. Consequently, we
reject Bergmann's argument that he was denied the right to confront his
accuser.
RIGHT TO PRESENT A DEFENSE
Bergmann
also argues that he was denied due process because he was removed from the
hearing without being able to present a defense. Bergmann contends that the adjustment committee ignored an
Indiana judgment establishing his paternity of his son and that the no contact
order violates his parental rights established by the judgment of
paternity. He also argues that he sent
the letter to his son through the President's office because he could not
afford an attorney to read letters and forward the acceptable portions to his
son as was suggested by an assistant attorney general who represented the State
in the federal civil rights action.[5] He contends that this mode of contract was
not "direct contact" with his son.
We disagree.
Bergmann has no absolute
right to present a defense at a disciplinary hearing. Under Wis. Adm. Code
§ Doc 303.76(5), if an inmate
refuses to attend or disrupts the hearing, the hearing may be conducted without
the inmate being present. Indeed,
Bergmann was permitted to present a defense.
The disciplinary hearing minutes indicate that Bergmann presented the
Indiana paternity judgment as Exhibit A and that Bergmann argued that this
document gave him parental rights, including the right to communicate with his
son.
Moreover, the no contact
rule is not inconsistent with the judgment of paternity. In the judgment of paternity, an Indiana
trial court determined that Bergmann was the boy's father and that Bergmann
"shall have all rights and responsibilities accorded to him by law as the
natural father of [D.] ...." The
court did not rule on custody, visitation, child support and payment of medical
expenses.[6]
Bergmann also argues
that his actions were privileged.
According to Bergmann, the government cannot criminally charge and
convict an individual for conduct which it has earlier indicated was
permissible. To allow such a conviction
would be a form of entrapment by the state in violation of a defendant's due
process rights. See Cox v.
Louisiana, 379 U.S. 559, 571 (1965).
However, the assistant attorney general's statement did not mean that
Bergmann could ask another person to send a letter to his son. This was the very type of direct contact
which the no contact order prohibited.
Accordingly, we conclude that Bergmann was not denied his right to
present a defense.
SUBSTANTIAL EVIDENCE
The
department's factual findings are conclusive if supported by any reasonable
view of the evidence, and we may not substitute our view of the evidence for
that of the department. State ex
rel. Jones v. Franklin, 151 Wis.2d 419, 425, 444 N.W.2d 738, 741 (Ct.
App. 1989). The record before the
adjustment committee contains substantial evidence that Bergmann committed
these violations. An envelope addressed
to Bergmann's son is postmarked from Washington, D.C. Bergmann also bragged about his circumvention of the no contact
order in a letter to a friend. The
adjustment committee found that Bergmann knowingly and willingly violated Lt.
Schaller's order on unwanted correspondence to outside parties. The order was given to him in writing and he
knowingly disobeyed this order by sending a letter on December 12, 1993,
addressed to his son. The committee
found that he used the United States Postal Service to communicate with a
person in a manner which violated the no contact order. Bergmann has not claimed that he did not
attempt to contact his son by letter.
The department's conclusions that Bergmann violated these orders are
reasonable and must be sustained.
FEES
The
trial court assessed filing fees of $98.00 when it dismissed this certiorari
action. Under § 814.29(3)(b), Stats., the trial court may order that
an inmate pay the filing fees and costs of the certiorari action from
his or her account if the court enters judgment in favor of the opposing party.
Bergmann lost his case before the trial
court and this court. Accordingly, the
fees and costs were properly assessed against him.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
No. 95-0384(D)
SUNDBY, J. (dissenting). Petitioner,
John S. Bergmann, is concededly the father of D. D.'s mother, who has custody, informed Lieutenant G. Schaller
that she did not want Bergmann to write or call his son. Schaller also ordered Bergmann not to
communicate with "these" parties again. "These" parties include D.'s mother and
stepfather. Several of Bergmann's
letters were critical of the mother and stepfather. In his letter of December 12, 1993, he implied that they were
inflicting intentional emotional abuse upon D.
Bergmann attempted to
get around Schaller's order by sending a letter to President Clinton requesting
that his letter be forwarded to his son.
Apparently, he was successful in
having at least one letter mailed to his son.
In an adult conduct report issued January 31, 1994, Schaller charged
Bergmann with disobeying orders and unauthorized use of the mail. In his report, Lieutenant Schaller states:
I was informed that on December 12, 1993
Bergmann wrote and mailed [a harassing] letter addressed to this three year old
child. Bergmann placed this letter
inside another letter which he addressed and mailed to President Clinton. In this letter he requested that the
volunteers who he knew opened the mail, to take the letter addressed to the
child out and to mail it. Attached are
copies of letters written by Bergmann where ... he writes his intent to violate
the no contact order by concealing the letter in his exempt mail.
I am satisfied that the
administrative regulations do not authorize prison officials to prohibit
inmates from contacting by mail or otherwise members of their families. In fact, Wis.
Adm. Code § DOC 309.05(1) provides that the Department of Corrections
encourages communication between inmates and their families: "Such communication fosters
reintegration into the community and the maintenance of family ties." I do not find any procedure in this section
or otherwise authorizing a prison official to prohibit an inmate from
contacting a member of the family by mail, telephone or visitation. I do not dissent from the proposition that correctional
officials may examine an inmate's incoming and outgoing mail to intercept mail
related to gang activities, escape plans, criminal activity, or obscene
material. However, the conduct report
does not allege that Bergmann's letters fall into any of those categories. Lieutenant Schaller issued to Bergmann a
no-contact order solely on the basis of a communication from D.'s mother and
stepfather that they did not want such mail sent to D. or to them. However, a custodial parent does not have
veto power over visitation or communications between a child in the parent's
custody and the non-custodial parent. Lihs
v. Lihs, 504 N.W.2d 890, 892 (Iowa 1993).
A parent who does not
maintain contact with his or her child may have his or her parental rights terminated
for abandonment. In Interest
of D.J.R., 454 N.W.2d 838 (Iowa 1990).
The state cannot by its acts create grounds for termination of parental
rights, without offending the parent's liberty interest protected by the Due
Process Clause. See Santosky
v. Kramer, 455 U.S. 745 (1982).
Further, matters of
family life are fundamental liberty interests protected by the Due Process
Clause of the Fourteenth Amendment. D.J.R.,
454 N.W.2d at 844 (citing Santosky, 455 U.S. at 753).
In In Interest
of R.L.F., 437 N.W.2d 599, 601 (Iowa Ct. App. 1989), the court based
termination upon the inmate father's failure to attempt any correspondence with
his child. "Parental
responsibilities include more than subjectively maintaining an interest in a
child. The concept requires affirmative
parenting to the extent it is practical and feasible in the
circumstances." Id.
at 601-02 (quoting In Interest of Goettsche, 311
N.W.2d 104, 106 (Iowa 1981)).
In In Interest
of M.M.S., 502 N.W.2d 4, 8 (Iowa 1993), the court sustained termination
of the inmate's parental rights because the parent had made "feeble
contacts." The court further said
that the father could not use his incarceration as justification for his lack
of relationship with the child. Id.
at 8 (citing In Interest of J.S., 470 N.W.2d 48, 51 (Iowa Ct.
App. 1991)).
Bergmann has been
declared D.'s father. The record does
not show that that determination was appealed.
He therefore has the right to maintain contacts with his son, as long as
those contacts do not interfere with prison routine or discipline.
At the time Bergmann
wrote the allegedly offending letter, his son was three years old. The district court in Bergmann's civil
rights action concluded that Bergmann's attempted correspondence with a
three-year-old child was "futile."
Nonetheless, letters appear to be the only way that Bergmann can
demonstrate that he wishes to maintain a father-son relationship with his
child. If D.'s mother does not choose
to read those letters to D., there is nothing in her duties as custodial parent
which requires that she do so. Soon,
however, D. will be able to read.
Hopefully, Bergmann will realize that his principal responsibility as
D.'s father is to establish, as best he can, a parental relationship with the
child. Letters such as he has written
to D. accusing D.'s mother and stepfather of emotional abuse will not be very
good evidence of the sincerity of his desire to parent D. if the state should
file a petition to terminate Bergmann's parental rights.
I have further examined Wis. Adm. Code § DOC 309.05 to
determine whether the correctional officials could intercept and destroy or
return Bergmann's letters to him. I do
not find that any of the reasons enumerated in DOC 309.05(6) permit the
correctional officials to refuse to allow Bergmann to mail letters to his
son. Therefore, I would reverse the
order of the circuit court dismissing Bergmann's writ of certiorari. I dissent.
[1] According to the parties' briefs, Bergmann unsuccessfully contended before a federal district court that the no contact order violated his constitutional rights. Captain Torsella was named as a defendant in that action. Bergmann has appealed that ruling.
[2] Wis. Adm. Code § Doc 303.24(1)(a), provides:
(1) Any inmate who disobeys any of
the following is guilty of an offense:
(a) A verbal or written order from any staff member, directed to the inmate ....
[3] Wis. Adm. Code § Doc 303.48(1) provides: "Any inmate who uses the U.S. postal service to communicate with a person who has been declared a prohibited correspondent of that inmate in accordance with ch. DOC 309 is guilty of an offense."
[4] Bergmann claims that Captain Torsella "was the first WCI official to which [he] appealed to for a reversal of the unconstitutional no contact order of Lt. Schaller's, and was denied." There is no document in the record supporting this claim. We do not know whether Bergmann appealed Schaller's and Torsella's alleged "orders" or, if he did, the result of that appeal. Bergmann also points to the fact that he was not permitted to cross-examine Lt. Schaller to establish Captain Torsella's partiality. As stated below, Bergmann has no right to cross-examine witnesses and it is within the adjustment committee's discretion to prohibit it. Captain Torsella's decision to prohibit cross-examination does not support Bergmann's allegation of partiality.
[5] In a brief filed by the State in the civil rights action, the State argued that "Defendants did not prohibit all contact with [Bergmann's son], but only proscribed direct contact by phone or correspondence. [Bergmann] continues to enjoy the ability to contact [his son] through his legal counsel ...."