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COURT OF APPEALS DECISION DATED AND RELEASED November 14, 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. 95-2357
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
TAYR KILAAB AL
GHASHIYAH (KAHN),
Petitioner-Appellant,
v.
GARY R. McCAUGHTRY,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Dodge County:
JOSEPH E. SCHULTZ, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Tayr Kilaab Al Ghashiyah (Kahn), a.k.a John Casteel,
appeals from an order of the circuit court quashing his writ of
certiorari. For the reasons set forth
below, we affirm.
By minor conduct report
dated October 14, 1994, Kahn, then an inmate at Waupun Correctional
Institution, was charged with violating Wis.
Adm. Code § DOC 303.63.[1] Specifically, Kahn was charged with kissing
an adult visitor during—as opposed to at the beginning or end of—a visit, on
October 7, 1994, as disallowed by the institution rules handbook, as well as
the visiting room rules attached to the report.
At a minor conduct
hearing on October 21, 1994, Kahn pled not guilty. The hearing officer found
him guilty, explaining that "inmate intentionally [and] knowingly kissed
his female visitor—inmate got copy of policy [and] procedures in inmate
handbook—issued to all inmates."
Kahn was penalized by not being permitted to see that particular visitor
for thirty days.
The warden affirmed the
hearing officer's decision, and Kahn appealed to the circuit court, which also
affirmed. He now appeals to this court.
Judicial review in
certiorari actions is limited to determining (1) whether the
administrative hearing committee "kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law; (3) whether its
action was arbitrary, oppressive or unreasonable and represented its will and
not its judgment; and (4) whether the evidence was such that the committee
might reasonably make the determination in question." Snyder v. Waukesha County Zoning Bd.
of Adjustment, 74 Wis.2d 468, 475, 247 N.W.2d 98 (1976). As to this last, "the test is whether
reasonable minds could arrive at the same conclusion reached by the administrative
tribunal." State ex rel.
Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment,
131 Wis.2d 101, 120, 388 N.W.2d 593, 600-01 (1986); see also Van Ermen v.
DHSS, 84 Wis.2d 57, 64, 267 N.W.2d 17, 20 (1978) (same standard applies
on appellate review).
A reviewing court on
certiorari does not weigh the evidence presented to the adjustment
committee. Van Ermen, 84
Wis.2d at 64, 267 N.W.2d at 20. Our
inquiry is limited to whether any reasonable view of the evidence supports the
committee's decision. State ex
rel. Jones v. Franklin, 151 Wis.2d 419, 425, 444 N.W.2d 738, 741 (Ct.
App. 1989).
Kahn alleges that the
hearing officer erred because the officer did not consider any physical
evidence. We do not know what
"physical evidence" there can be of a kiss, and Kahn does not
identify any.
Kahn next argues that he
did not receive a copy of the "posted policy and procedure," and that
he was unaware of the prison policy. We
reject this argument. Although Kahn
alleges otherwise, the record demonstrates that he received a copy of the
conduct report, as well as a copy of the rules he was charged with
violating. The record also shows that
among Kahn's copious conduct report violations is a charge from the previous
month of breaching these same visiting rules.
Kahn contends that the
hearing officer failed to make an adequate record, or an adequate statement of
the reasons for disposition. We
disagree. The certiorari return shows
that Kahn was served notice, appeared and pled not guilty, and was found guilty
for the reasons discussed above. More
is not required. State ex rel.
Staples v. DHSS, 130 Wis.2d 308, 311-12, 387 N.W.2d 551, 552 (Ct. App.
1986).
Further, although Kahn
states that the reporting officer was biased against him, he offers only an
unsupported assertion and speculation regarding his visitor's persona non
grata status with the warden.
Kahn's apparent theory is that he never improperly kissed his visitor
but was instead the victim of a pattern of retaliation and harassment amounting
to a conspiracy among the reporting officer, the hearing officer, various other
officers, and the warden. The
decisionmaker was entitled to reject this theory. A decisionmaker may rely on a conduct report when the only issue
is whether the incident account in the report is more credible than a differing
account offered by the inmate. See
Culbert v. Young, 834 F.2d 624, 631 (7th Cir. 1987), cert.
denied, 485 U.S. 990 (1988).
Kahn does not make a
separate argument on the bias of the hearing officer, and it appears to be
merely an arm of his conspiracy theory.
"In light of the inadequate briefing on this issue, we decline to
address it." In re Estate of
Balkus, 128 Wis.2d 246, 255 n.5, 381 N.W.2d 593, 598 (Ct. App.
1985).
Finally, Kahn argues
that a certiorari petition and a disciplinary proceeding are both inadequate
forums to consider constitutional claims stemming from harassment and
retaliation. We agree. Certiorari is limited in scope. If Kahn wishes in good faith to state a
constitutional claim—the legal nature of which he has not stated to this
court—he may institute whatever proceedings he believes will offer relief.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.