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COURT OF APPEALS DECISION DATED AND RELEASED October 12, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1395-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
ADRIAN LOMAX,
Plaintiff-Appellant,
v.
WARDEN, RACINE
CORRECTIONAL INSTITUTION,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before Dykman, Sundby,
and Vergeront, JJ.
PER
CURIAM. Adrian Lomax appeals from an order affirming the
decision of a prison adjustment committee.[1] We affirm on one charge and reverse on the
other.
The conduct report
alleged that Lomax, while being transferred between different parts of the
prison, said the name "Karl Rode" and indicated that Lance Luedtke, a
crisis intervention worker who was present, had killed him. Lomax was found guilty of disrespect and
lying about staff.
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, 621 (1980). 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, 82 (Ct. App. 1988).
An inmate may not
knowingly make a false written or oral statement about a staff member with the
intent to harm the staff member and make that false statement public. Wis.
Adm. Code § DOC 303.271.
The committee wrote:
"Regarding the 271 charge, Mr. Luedtke had no part in what was
called an accidental death. Furthermore,
no evidence has ever been shown at any time that Mr. Luedtke was a factor in
the death." Lomax argues that
there was no evidence in support of this part of the decision. We agree.
We first note that the committee did not find that Lomax knew his
statement was false, one of the elements of the charge. Lomax argues that there was no evidence that
the statement was, in fact, false. The
respondent replies that Lomax submitted no evidence showing his statement was
true. However, the burden is not on the
inmate to prove a disciplinary charge false.
"The institution is required to establish guilt by a preponderance
of the evidence." Wis. Adm. Code § DOC
303.76(6).
The warden argues that
the committee properly took notice that "the Rode incident" was ruled
an accidental death. However, the rules
provide that the committee shall consider "only the evidence presented to
it and the inmate's records." Id. There is no indication in the record that
any ruling on "the Rode incident" was before the committee. Our review is limited to the record brought
up by the writ. State ex rel.
Richards v. Leik, 175 Wis.2d 446, 455, 499 N.W.2d 276, 280 (Ct. App.
1993). Because this record does not
show any evidence that Lomax's statement was false, the committee's decision on
the lying charge was not supported by substantial evidence.
Lomax was also found
guilty of disrespect under Wis. Adm.
Code § DOC 303.25, which provides:
Any inmate who overtly shows disrespect for any
person performing his or her duty as an employe of the state of Wisconsin is
guilty of an offense .... Disrespect
includes, but is not limited to, derogatory or profane writing, remarks or
gestures, name-calling, spitting, yelling, and other acts intended as public
expressions of disrespect for authority and made to other inmates and
staff. Disrespect does not include all
oral or written criticism of staff members ....
Lomax argues that his
comment that Luedtke killed Rode was not disrespect, but oral criticism of
staff. We disagree. While Lomax's allegation might, under some
circumstances, be legitimate criticism, the committee could reasonably find
that in the circumstances of this case his remarks were intended to be public
expressions of disrespect for authority.
Lomax argues that the
disrespect rule, Wis. Adm. Code
§ DOC 303.25, is unconstitutionally vague and overbroad. We disagree. The rule provides ample notice of the conduct prohibited.
In summary, we reverse
as to the lying charge and affirm as to disrespect. On remand, the circuit court shall order the committee to expunge
the finding of guilt on the lying charge, and shall order it to reconsider its
disposition in light of that conclusion.
By the Court.—Order
affirmed in part; reversed in part and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.