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COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1996 |
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. 95-2108
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JOHN S. BERGMANN,
Petitioner-Respondent,
v.
GARY R. McCAUGHTRY,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Dodge County:
THOMAS W. WELLS, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Gary R. McCaughtry appeals from circuit court orders
vacating discipline imposed on John Bergmann, and denying his motion for reconsideration. We affirm.
BACKGROUND
In
four major conduct reports, Bergmann was accused of disobeying orders by
attempting to contact his son. The
reports were issued one each on May 9 and 17 and two on May 18, 1994. Each contained the following statement:
"The hearing officer or designee
will notify you and your staff advocate of the date, time and place of the
hearing.
A.The
hearing shall be held not sooner than 2 days and no more than 21 days after the
date you were given a copy of the above-referenced report."
The
first portion of this notice apparently arises from Wis. Adm. Code § DOC 303.81(9) which provides: "The hearing officer shall prepare
notice of the hearing and give it to the accused, the advocate (if any), the
committee and all witnesses, including
the staff member who wrote the conduct report."
It is undisputed that
the "hearing officer or designee" did not inform Bergmann of the
"date, time or place of the hearing."[1]
The disciplinary committee
held a hearing on all four reports on May 26, 1996. Bergmann refused to attend on the grounds
that he had not been given notice. The
committee found him guilty of all four conduct reports. He appealed to Warden Gary R.
McCaughtry, who affirmed. On certiorari,
the circuit court reversed. It held
that DOC had to comply with the procedural rules by giving notice, which was
withheld here.
McCaughtry moved the
circuit court for reconsideration on the grounds that this court has previously
held that the second part of the notice (hearing to be no less than two days,
no more than twenty-one days) was constitutionally sufficient. Saenz v. Murphy, 153 Wis.2d
660, 681, 451 N.W.2d 780, 788 (Ct. App. 1989), rev'd on other grounds,
162 Wis.2d 54, 469 N.W.2d 611 (1991).
The circuit court denied McCaughtry's motion for reconsideration.
ANALYSIS
In essence, the circuit
court held that a form notice of hearing within two to twenty-one days is not
"notice" of the type required by the administrative code. McCaughtry argues that this is an incorrect
statement of law, based on our holding in Saenz, 153 Wis.2d 660,
451 N.W.2d 780. We do not agree and conclude
the trial court applied the correct law.
In Saenz,
we considered the same notice given Bergman, and in Saenz, as in
this case, the inmate was not given notice of the date, time, or place of the
hearing. Saenz, 153
Wis.2d at 674, 451 N.W.2d at 785. We
held that Saenz's right to due process was not violated because he received
notice that his disciplinary hearing would be held at least two days but not
more than twenty-one days after he was served with the notice and because he
had more than twenty-four hours to marshal the facts and prepare a
defense. Saenz, 153
Wis.2d at 681, 451 N.W.2d at 788.
However, in Irby
v. Macht, 184 Wis.2d 831, 845, 522 N.W.2d 9, 15 (1994), the Wisconsin
Supreme Court enumerated "procedures inmates must be afforded with
respect to disciplinary hearings."
(Emphasis in original.) Among
the procedures which "must" be afforded, the court explicitly
read into Wis. Adm. Code § DOC 303.81(9), a requirement that
"inmates must be given notice of the hearing's time."
(Emphasis supplied.) Although we are
bound by our prior pronouncements, holdings of the Wisconsin Supreme Court take
precedence. Livesey v. Copps
Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct. App. 1979). Any holding of Saenz that is
contrary to Irby is no longer good law. Where there are four conduct reports each charging distinct
violations, the notice of the hearing must also inform the inmate which charges
will be heard at the specified time. See
Wolff
v. McDonnell, 418 U.S. 539, 564 (1974) (adequate notice must inform
inmate of charges and enable him to marshal facts and prepare defense).[2]
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.