COURT OF
APPEALS DECISION DATED AND
RELEASED May
16, 1996 |
NOTICE |
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. 95-1550
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN EX REL. RONALD WAITES,
Petitioner-Respondent-Cross Appellant,
v.
GARY
R. MCCAUGHTRY,
Respondent-Appellant-Cross Respondent.
APPEAL
and CROSS-APPEAL from an order of the circuit court for Dodge County: THOMAS W. WELLS, Judge. Remanded with directions.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Gary McCaughtry, warden of the
Waupun Correctional Institution (WCI), appeals from an order reversing a
disciplinary decision of the WCI adjustment committee. The adjustment committee decided that Ronald
Waites was guilty of conspiracy and of group resistance and petitions, in
violation of Wis. Adm. Code §§
DOC 303.21 and 303.20, respectively.
The trial court determined that reversal was required because Waites'
due process rights were violated with respect to his request for the attendance
of a witness at the disciplinary hearing and the admission of the statements of
two confidential informants.
We
conclude that Waites did not have a constitutional right to have either the
witness, Captain Milliren, or the confidential informants present at the
hearing. We also conclude that the
adjustment committee did not comply with Wis.
Adm. Code § DOC 303.86(4) because it did not make a finding whether
testimony by the confidential informants would pose a significant risk of
bodily harm to the informants. However,
we conclude that this does not require reversal. Remand to the adjustment committee is proper with instructions to
determine whether such a finding is supported by the circumstances of this
case.
BACKGROUND
Waites
was an inmate at the Racine Correctional Institution at the time of the
incident giving rise to these proceedings.
On January 26, 1994, Waites was given a conduct report signed by Captain
Milliren. The report charged him with
aiding and abetting battery in violation of Wis.
Adm. Code § DOC 303.12, in addition to the charges of conspiracy and
group resistance and petitions. The
report stated:
This conduct
report is the result of an investigation.
On the above date and time, Inmate Waites was reported to be in the
Walworth Unit Servery, leading a Gangster Disciple meeting of over a dozen
inmates. Inmate Bibbins came into the
servery at the urging of Inmate Charles McGowan. Inmate Bibbins announced to the other inmates that he would not
participate in the Gangster Disciple activity.
He then turned around and left.
This behavior is considered a serious insult to the Gangster Disciples
present and especially insulting to Inmate Waites who was leading the
meeting. (I have interviewed many
inmates over this incident. All
information received indicated and confirmed that Inmate Waites is the
"houseman" or "leader" for the Walworth Unit.) Inmate Waites immediately stood up and told
Inmate Bibbins that he'd be "taken care of," for his actions. Immediately after Inmate Bibbins left,
Inmate Waites pulled Inmate Charles McGowan aside and had a head to head
private conversation with him. Inmate
McGowan, very shortly after that conversation, was leading the assault of
Inmate Bibbins, along with four other inmates.
Waites
was given a form entitled "Notice of Major Disciplinary Hearing
Rights" and a form entitled "Inmate's Request for Attendance of
Witness." On this latter form,
Waites requested the presence of two inmates: Charles McGowan and Johnny
Bibbins. Waites did not check the box
next to the sentence, "I'm requesting reporting staff member(s) to
attend." However, in the space
below the box with the heading "Name(s) of Reporting Staff Member(s),"
Waites wrote "Capt. Milliren."
Waites
was present at the hearing and testified that he had not been involved in the
incident at all; that he was on the phone for about one hour at the time; and
that, while on the phone, another inmate told him there was a fight. Waites' staff advocate also made a
statement. Inmate McGowan attended the
hearing and testified that he was in the Walworth unit five days prior to the
incident and did not know Waites.
Inmate
Bibbins did not appear at the disciplinary hearing. The "Inmate's Request for Attendance of Witness" form
and the "Record of Witness Testimony" form together state that
Bibbins refused to appear and refused to give a statement, citing Wis. Adm. Code § DOC 303.81(3)(a) and
(b).[1] However, a one sentence written statement
over the signature "Johnny Bibbins" was apparently offered by Waites
or his advocate and received and considered at the hearing. This statement says: "Ronald Wade [sic] a.k.a. (Ya-Ya) did
not harm me."[2]
Captain
Milliren did not appear, but the conduct report was considered by the adjustment
committee. The adjustment committee
also considered photographs of the injuries to Bibbins, a short written report
by Captain Milliren describing the results of her interviews with twelve
unidentified inmates, the written statements of two confidential informants,
and the written statement of Inmate Brownlee.
An edited version of the statements of the two confidential informants
was given to Waites. Brownlee's statement
said that he was in the Walworth dayroom on the phone and that Waites was there
talking on the phone at the time Bibbins was in a fight.
The
adjustment committee determined that Waites was guilty of conspiracy and group
resistance and petitions, but not battery.
The committee stated the reasons for its decision as follows:
Confidential
informant statements are clear, consistent, and document visual observations of
Inmate Waites taking part in a meeting of gang members (in viol. of 303.20,)
and taking part in planning activities that led to Inmate Bibbins being
battered in violation of 303.21 because Inmate Waites was heard threatening
Inmate Bibbins. Committee views
confidential informant statements and report as well as statement of conduct
report writer as more credible than statement of co-conspirator inmate
McGowan. Statements submitted at
hearing by Inmate Brownlee, and Bibbins were considered with other confidential
statements. Finding of no guilt on
303.12(B), as statements do not support Inmate Waites' involvement in the actual
battery.
Waites'
appeal to the warden was denied and Waites filed a petition for a writ of
certiorari seeking review of the adjustment committee's decision. He challenged the failure of the adjustment
committee to require Bibbins and Captain Milliren to appear and the adjustment
committee's reliance on the statements of the confidential informants. The trial court determined that the
adjustment committee's failure to make a finding that the confidential
informants would be subject to a significant risk of bodily harm, and the
absence in the record of the reason for Captain Milliren's failure to appear,
violated Waites' right to due process.[3]
On
certiorari review, this court's standard of review is the same as that applied
by the trial court. State ex rel.
Staples v. DHSS, 136 Wis.2d 487, 493, 402 N.W.2d 369, 373 (Ct. App.
1987). Review is limited to determining
whether the adjustment committee kept within its jurisdiction, whether it acted
according to law, whether the action was arbitrary, oppressive or unreasonable
and represented its will and not its judgment, and whether the evidence was
such that it might reasonably make the determination in question. State ex rel. Meeks v. Gagnon,
95 Wis.2d 115, 119, 289 N.W.2d 357, 361 (Ct. App. 1980). Whether the adjustment committee acted
according to law includes the questions of whether due process was afforded and
whether the adjustment committee followed its own rules. Id.
ABSENCE OF
CAPTAIN MILLIREN
McCaughtry
contends that the absence of Captain Milliren did not deny Waites his right to
due process. First, he argues that
Waites did not request Milliren because the appropriate box on the Inmate's
Request for Attendance of Witness was not checked. We reject this argument.
Since Captain Milliren's name was written in the space provided, we
think the most reasonable interpretation of the form is that Waites was
requesting Captain Milliren as a witness.
McCaughtry
also argues that Waites waived any right he might have had to Milliren's attendance because he did not
object at the hearing to her absence.
Waites responds that he did object, but the committee omitted his
objection on the "Disciplinary Hearing" form and the "Record of
Witness Testimony" form. These two
documents are the only record of oral statements made at the hearing. We need not decide whether Waites waived his
objection because we conclude that the absence of Captain Milliren did not
violate Waites' right to due process.
Wisconsin Adm. Code § DOC 303.81(4) provides in part:
[I]f a staff member witness, who may be the officer who
reported the rule violation, will be unavailable due to illness, no longer
being employed at the location, being on vacation or being on a different
shift, but there is no other reason to exclude the witness's testimony under
sub. (3),[4]
then the hearing officer shall attempt to get a signed statement from the
witness to be used at the disciplinary hearing.
(Footnote added.)
It
is undisputed that the notice of hearing given Waites stated: "Capt. Milliren--Statement Requested
(Conflict of Schedule)."[5] Waites does not contend that Wis. Adm. Code § DOC 303.81(4) was
violated. His contention is that he has
a constitutional right to require Captain Milliren's presence.
Inmates
have a protected liberty interest in the retention of earned good-time
credit. Irby v. Macht,
184 Wis.2d 831, 838, 522 N.W.2d 9, 11-12, cert. denied, 115 S. Ct. 590
(1994). Before an inmate may be
subjected to the possible loss of good time for an offense which merits
segregation if the inmate is found guilty, the minimum due process requirements
established in Wolff v. McDonnell, 418 U.S. 539 (1974), must be
satisfied. Id. at 838-42,
522 N.W.2d at 11-13.[6]
In
discussing the constitutionally-required procedures for prison disciplinary
hearings, Wolff distinguished between calling witnesses to
present evidence on one's behalf and confronting and cross-examining witnesses
furnishing evidence against one. Wolff,
418 U.S. at 566-68. The Court held that
there was a limited constitutional right to the former but not the latter. Id. See also Baxter v. Palmigiano, 425 U.S. 308,
321-22 (1976). Wolff did
not impose any constitutional obligation on prison officials to give written
reasons for denying the inmate the right to have witnesses present in either of
the two situations. Baxter,
425 U.S. at 322.
Captain
Milliren provided evidence against Waites in the form of the conduct report and
the short written statement. Although
Waites requested her presence, Milliren was an adverse witness whom Waites
wished to confront and cross-examine.
Under Wolff and Baxter, Waites does not have
a constitutional right to Captain Milliren's attendance at the hearing.
CONFIDENTIAL
INFORMANTS
For
the same reasons, Waites did not have a constitutional right to confront and
cross-examine the confidential informants.
We therefore consider whether the adjustment committee complied with DOC
rules regarding the statements of the confidential informants. We conclude it did not comply.
In
the context of disciplinary hearings for major violations, Wis. Adm. Code § DOC 303.86(4)
provides:
If a witness refuses to testify in person and
if the committee finds that testifying would pose a significant risk of bodily
harm to the witness, the committee may consider a corroborated, signed
statement under oath from that witness without revealing the witness's
identity. The contents of the statement
shall be revealed to the accused, though the statement may be edited to avoid
revealing the identity of the witness.
The committee may question the witnesses, if they are otherwise
available. Two anonymous statements by
different persons may be used to corroborate each other. A statement can be corroborated in either of
the following ways:
(a) By other evidence which substantially
corroborates the facts alleged in the statement such as, eyewitness account by
a staff member or circumstantial evidence; or
(b) By
evidence of a very similar violation by the same person.
The requirement of corroboration is an expression of the
due process requirement that confidential information relied upon by the
committee be reliable. See Wells
v. Israel, 854 F.2d 995, 998-99 (7th Cir. 1988).
The
confidential informant statements were certified as part of the record. We have examined them, as did the trial
court. These statements were made under
oath. Wisconsin
Adm. Code § DOC 303.86(4) specifically provides that "[t]wo
anonymous statements by different persons may be used to corroborate each
other." Each statement is
corroborated by the other.
The
confidential informant statements each contain, as part of the form, a section
headed:
REASON WHY THE INFORMANT WILL NOT TESTIFY IN
PERSON: (Must be because informant
fears that testifying in person would pose a significant risk of bodily harm to
him/her.) INVESTIGATOR EXPLAIN WHAT
THIS RISK IS:
In this section on each form is typed this statement:
The inmate named below is providing information that
will help to result in another inmate doing a very long time in
segregation. There is high risk that
this inmate will be severely retaliated against by other inmates if the
information contained in this statement was divulged.
There is no staff name or signature on either statement
indicating who is making the assessment of a high risk of retaliation.
McCaughtry
concedes that the adjustment committee did not make the required finding that
testifying would pose a serious risk of bodily harm to the informants. However, he presents three arguments
against reversal on this ground. First,
he contends that there is sufficient evidence in the record--the conduct report
and written statement--to support the adjustment committee's conclusions even
without the statements of the confidential informants. We disagree. Captain Milliren did not herself observe Waites' involvement in the
incident. Her conduct report, which is
similar in content to her short written statement, briefly relates the contents
of her conversations with unidentified inmates, including, presumably, the two
whose statements were submitted. The
written report of an officer may be considered, even though it is hearsay. See Wis.
Adm. Code § DOC 303.86(2)(a).
But it does not follow that a report containing only brief summaries of
the statements of unidentified persons is sufficient evidence, in itself, to
base the committee's decision on. Such
a conclusion would make the rule concerning the admissibility of the statement
of a confidential witness meaningless.
McCaughtry
also argues that the confidential informant statements are the
"equivalent" of a finding by the adjustment committee. We reject this argument for two
reasons. First, the statements do not
indicate who made the assessment of a high risk of retaliation. Without that minimal degree of formality, we
hesitate to find that the statements are the equivalent of a committee finding. Second, even if we assume what is perhaps
obvious--that a member of the prison staff completed the forms--we are
unwilling to disregard the requirement that the committee itself make a
finding. We consider this requirement
in Wis. Adm. Code § DOC
303.86(4) to be significant because of the contrasting language in a
counterpart provision for hearings on administrative confinement.[7] An inmate's right to a review by the Program
Review Committee (PRC) of the decision to place him or her in administrative
confinement includes, among other rights:
The right to
present and question witnesses in accordance with sub. (6) and the hearing
procedures for major disciplinary offenses except that, in the case of a
confidential informant, a designated security staff member shall investigate to
determine whether testifying would pose a significant risk of bodily harm to
the witness. If the designated staff member
finds a significant risk of bodily harm, the designated staff member shall
attempt to obtain a signed statement under oath from the witness and determine
that the statement is corroborated in accordance with s. DOC 303.86(4). The designated staff member shall edit the
signed, corroborated statement to avoid revealing the identity of the
witness. A copy of the edited statement
shall be delivered to the inmate....
Wisconsin Adm. Code § DOC 308.04(4)(e)4.
In
the review before the PRC, a designated staff member is to make the finding
whether there is a significant risk of bodily harm. In contrast, in a disciplinary hearing before the adjustment
committee, this responsibility is placed on the committee. Since the Department of Corrections has
plainly defined the required procedure in each instance differently, we see no
basis for concluding that they are interchangeable.
Finally,
McCaughtry argues that the failure of the adjustment committee to make the
requisite finding was harmless error in view of the statements on the
confidential informant forms concerning the high risk of retaliation. Wisconsin
Adm. Code § DOC 303.87 provides:
If a procedural
requirement under this chapter is not adhered to by staff, the error may be
deemed harmless and disregarded if it does not substantially affect the rights
of the inmate. Rights are substantially
affected when a variance from a requirement prejudices a fair proceeding
involving an inmate.
In
State ex rel. Riley v. DHSS, 151 Wis.2d 618, 445 N.W.2d 693 (Ct.
App. 1989), we addressed an inmate's challenge to the decision of the PRC
regarding administrative confinement because the PRC relied on unsworn
statements from confidential informants in violation of Wis. Adm. Code § DOC 308.04(4)(e)4. We rejected the State's argument that this
was harmless error because we concluded that the purpose of the requirement was
to protect the accused. Id.
at 626, 445 N.W.2d at 696.
The
requirement that the adjustment committee make a finding on risk of harm to a
confidential informant also protects the accused: it ensures that witnesses against the accused are made known to
the accused unless there is a sufficient reason. Arguably, this purpose has been served by the statement on high
risk of retaliation in the confidential informant statements. However, for the reasons already discussed,
we decline to treat the absence of a finding by the committee as harmless
error. The Department of Corrections
has adopted a rule that expressly requires a finding by the adjustment committee,
rather than delegating this responsibility to an investigating officer as it
has done for administrative confinement reviews. Under these circumstances, we are unwilling to disregard the
Department of Corrections' failure to follow its own rules.
However,
we do not agree with the trial court or Waites that reversal is automatically
warranted. A remand for purposes of
making further findings is permissible when it does not involve taking
additional evidence. See Snajder
v. State, 74 Wis.2d 303, 314, 246 N.W.2d 665, 670 (1976). In this case, we conclude the appropriate
procedure is to remand the matter back to the committee with instructions that
it make the necessary finding, if such a finding is supported by the
circumstances in this case.[8] If such a finding is made, the discipline
imposed on Waites may stand. If the
record does not support such a finding, the adjustment committee shall vacate
its order and expunge these offenses from Waites' prison record.
By
the Court.—Order remanded with
directions.
Not
recommended for publication in the official reports.
[1] Wisconsin
Adm. Code § DOC 303.81(3)(a) and (b) provides that inmates and staff
requested as witnesses by the accused shall attend the disciplinary hearing
unless there is a significant risk of bodily harm to the witness if he or she
testifies, or the witness is an inmate and does not want to testify.
[2] A copy of this statement is attached to Waites'
petition for a writ of certiorari. It
is referred to in the adjustment committee's summary of Waites' advocate's
comments and its summary of Waites' testimony at the hearing, and also in the
committee's written reasons for the decision.
But the statement itself is not in either the original return or the
supplemental return. Waites requested
that this statement and certain other documents be included in a supplemental
return and a supplemental return was filed containing certain other documents, but
not this statement. However,
McCaughtry's counsel acknowledged in his brief before the trial court that
Waites was permitted to submit this statement at the hearing.
[3] The trial court did not address Waites'
argument concerning Bibbins' appearance and Waites does not raise this issue in
his cross-appeal.
[4] Wisconsin
Adm. Code § DOC 303.81(3) provides that witnesses who are inmates
or staff requested by the accused shall attend the disciplinary hearing unless
there is a significant risk of bodily harm to a witness, an inmate witness does
not want to testify, the testimony of the witness would be irrelevant or
cumulative, or an inmate witness must be transported.
[5] Waites attached a copy of this notice as an
exhibit to his petition for a writ of certiorari. It was not in the original return. The court ordered it to be included in the supplemental return at
Waites' request. However, the
certificate of supplemental return states that it is not included because it is
not kept as part of the record. Both
parties agree this notice was given to Waites.
[6] In Sandin v. Conner, 515 U.S.
___, 132 L.Ed.2d 418 (1995), the United States Supreme Court altered the
analysis for determining when a state creates a liberty interest protected by
the Due Process Clause such that the Wolff procedural protections
apply. After Sandin, the
existence of such an interest depends on the nature of the deprivation--whether
it is "atypical and significant"--rather than whether the language of
prison regulations is mandatory. Sandin,
515 U.S. at ___, 132 L.Ed.2d at 431. In
Sandin, the Court held that discipline in segregated confinement
did not present the type of deprivation that created a liberty interest. Id. However, the discipline in Sandin did not
inevitability affect the duration of the inmate's sentence. Id. In Wisconsin, for inmates who committed offenses on or after June
1, 1984, and other inmates who chose to have 1983 Wis. Act 528 apply to them, a
guilty finding for major disciplinary offenses affects the inmate's mandatory
release date. Section 302.11(2), Stats.; Appendix Note, Wis. Adm. Code § DOC 303.84; State
v. Martin, 191 Wis.2d 646, 662, 530 N.W.2d 420, 426 (Ct. App.
1995). Therefore, Sandin
does not alter the analysis in Irby v. Macht, 184 Wis.2d 831, 522
N.W.2d 9 (1994).
[7] Administrative confinement is an involuntary
nonpunitive status for the segregated confinement of an inmate solely because
the inmate is dangerous, to ensure personal safety and security in the
institution. Wisconsin Adm. Code § DOC 308.04(1).
[8] In State ex rel. Riley v. DHSS,
151 Wis.2d 618, 445 N.W.2d 693 (Ct. App. 1989), we declined to remand to permit
compliance with Wis. Adm. Code
§ DOC 308.04(4)(e)4 because the matter had already been remanded once to
the adjustment committee due to noncompliance with the rule. Id. at 627-28, 445 N.W.2d at
696. That is not the case here.