Jackson, In re

Citation43 Cal.3d 501,731 P.2d 36,233 Cal.Rptr. 911
Parties, 731 P.2d 36 In re Fernando A. JACKSON on Habeas Corpus. Crim. 24237.
Decision Date02 February 1987
CourtUnited States State Supreme Court (California)

Donald Specter, under appointment by the Supreme Court, San Quentin, Cal., for petitioner.

John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Kenneth C. Young, Morris Lenk and Paul D. Gifford, Deputy Attys. Gen., San Francisco, Cal., for respondent.

Christopher N. Heard as amicus curiae on behalf of respondent.

BY THE COURT: *

We granted a hearing to determine whether either federal or state due process requires state prison hearing officers to interview confidential informants in camera before finding an accused prison inmate guilty of a disciplinary violation solely on the basis of confidential information.

Prison officials regularly depend on confidential informants to identify prison rule violators. While stressing the paramount need to rely on such informants as a source of information, these officials stress an equal need to maintain confidential the identity of those informants: to do otherwise, they claim, would subject informants to violent retaliation and hence dry up that crucial information source. Inmates, on the other hand, stress the opportunity for arbitrary and unfair deprivation of liberty interests resulting from a system that depends heavily on secret informants. This case forces us to examine the procedure required by the federal and state Constitutions in order to accommodate both prison officials' interests in operating secure institutions and inmates' interests in fair disciplinary hearings.

Treating this petition for a writ of habeas corpus as a motion for declaratory relief 1 the superior court found (i) prison officials' "current procedures and practices when disciplinary charges are based on confidential information" violate both state and federal due process guarantees; (ii) providing "an in camera hearing at which the hearing officer may test the veracity of the source" would lead to more accurate determinations without unduly burdening prison security interests; and therefore (iii) whenever an inmate is accused of a prison rule violation based "solely on a confidential source(s) ... [an] in camera test must be conducted" before the inmate may be found guilty of a disciplinary charge. 2

We reverse the judgment of the superior court. We conclude the proposed in camera procedure is not currently required by the due process clause of the federal Constitution. Nor, absent sufficient evidence of the proposed procedure's feasibility, will we conclude that in camera review of confidential informants is required under our state due process clauses. In the absence of such evidence, we hold the current administrative regulations, which require a hearing officer "personally" to make a finding on the informant's reliability and truthfulness, meet due process requirements so long as there exists in the disciplinary record information (confidential or otherwise) on which a reviewing court can conclude the hearing officer actually made a reliability and truthfulness determination, and that the determination is supported by evidence.

I. FEDERAL DUE PROCESS

The United States Supreme Court has implicitly rejected the notion that federal due process requires in camera "reliability testing" of confidential informants in prison disciplinary hearings. (Wolff v. McDonnell (1974) 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935.) Over Justice Marshall's dissent--in which he advocated in camera review of confidential informants (id., at p. 590, 94 S.Ct. at p. 2991)--the Wolff majority observed that legitimate institutional concerns (primarily, preservation of order within prisons and the need to both encourage and protect confidential inmate informants) mandated that only minimal due process safeguards be afforded inmate disciplinary defendants. Such a defendant has a right to (i) advance written notice of the claimed prison rule violation; (ii) a written statement by the factfinder as to the evidence relied on and the reasons for the disciplinary action; and (iii) a limited right to call witnesses and present documentary evidence in his defense, unless doing so would create risks to institutional security. (Id., at pp. 563-567, 94 S.Ct. at pp. 2978-2980; see also Baxter v. Palmigiano (1976) 425 U.S. 308, 321, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810.) The Wolff court specifically held due process did not entitle inmates facing disciplinary charges to confront or cross-examine those who furnish evidence against them: "The better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave [those] matters to the sound discretion of the officials of state prisons." (418 U.S. at p. 569, 94 S.Ct. at p. 2981.) The court emphasized that its limited list of inmate-due-process protections was "not graven in stone. As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection of this court." (Id., at p. 572, 94 S.Ct. at p. 2982.)

Seizing on these latter statements, Jackson claims the future is now, and that federal due process standards recognize today what Justice Marshall advocated in dissent 12 years ago. Neither his cited federal or state cases, nor his other authorities, support this view.

It is true that two cases, Palmigiano v. Baxter (1st Cir.1973) 487 F.2d 1280, 1290, reversed on other grounds 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810, and Clutchette v. Procunier (9th Cir.1974) 497 F.2d 809, 819-820 reversed on other grounds sub nom. Baxter v. Palmigiano, supra, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810, strongly suggested federal due process required disciplinary boards to determine confidential informants' reliability in camera, but both cases predate Wolff, supra, 418 U.S. 539, 94 S.Ct. 2963. 3

The federal cases decided since Wolff give no indication that in camera review is now required by federal due process. For example, the First Circuit, in McLaughlin v. Hall (1975) 520 F.2d 382, 385 (in an opinion by Chief Judge Coffin, author of Palmigiano, supra, 487 F.2d 1280), held that in light of Wolff it could not be said an in camera hearing was required. The Third Circuit, in Helms v. Hewitt (1981) 655 F.2d 487, 503, reversed on other grounds 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675, held that an inmate is denied due process if disciplined on the basis of confidential informant hearsay when the hearing board has "no basis for an independent assessment of the informant's credibility ...," but nowhere suggested an in camera interview of the informant was necessary to accomplish that purpose. In Smith v. Rabalais (1981) 659 F.2d 539, 546, the Fifth Circuit held, over the inmate's claim that an in camera hearing was required, that due process was satisfied by the disciplinary board's open hearing interview of the reporting guard.

In a series of cases the Seventh Circuit has come to the same conclusion. McCollum v. Miller (1982) 695 F.2d 1044, 1049, held an inmate's due process rights were violated inter alia by inadequate notice of the disciplinary charges against him, and remanded for testimony on the feasibility of extending to the inmate further safeguards--among them, in camera interviews of those who informed against him. 4 The next year the same court affirmed disciplinary findings in a consolidated appeal, holding there was no need under the circumstances for the hearing board to interview the investigating officer at all; the court said nothing about an in camera interview of the confidential informant. (Jackson v. Carlson (1983) 707 F.2d 943, 948.) Later, the same court in Dawson v. Smith (1983) 719 F.2d 896, 899, affirmed disciplinary findings on the basis of its own "judicial in camera" review of confidential reports and materials from which, the court concluded, the federal magistrate properly found that confidential information against the disciplined inmate was reliable. Most recently, citing McCollum, Jackson, and Dawson, the Seventh Circuit affirmed disciplinary findings based, inter alia, on its review of confidential reports from which, it held, the disciplinary board could properly have determined the confidential information to be reliable. (Mendoza v. Miller (1985) 779 F.2d 1287, 1294- 1296.) Again, the court in no way indicated that federal due process required the hearing board to interview the informant in camera.

Finally, the Eleventh Circuit has held that an in camera interview of the informant--although an option to be used at prison officials' discretion--is not required. (Kyle v. Hanberry (1982) 677 F.2d 1386, 1390.) Instead, the court held due process requires the disciplinary board (i) make a good faith effort to determine a confidential informant's credibility, and (ii) make a record from which a reviewing tribunal can reasonably conclude the board "undertook such inquiry and, upon such an inquiry, concluded that the informant was reliable." (Ibid.) 5

State court interpretations of both the federal and respective state Constitutions track the federal circuit court cases. Homer v. Morris (Utah 1984) 684 P.2d 64, 68, followed the standard set out in Kyle, supra, 677 F.2d 1386, holding the record must contain reasons from which the disciplinary board could conclude the informants were reliable. The court did not suggest, however, that the board must interview any informant in camera. 6 Iowa cases are similar: for example, in Niday v. State (1984) 353 N.W.2d 92, 93-94, the disciplinary board prepared a confidential file of the confidential informants' written statements, which file was made available for the court's later in camera inspection. Reviewing those documents, the state supreme court held the disciplinary committee had before it adequate information on which to base its decision that the confidential information was...

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