State ex rel. Irby v. Israel

• Decision Date: 27 January 1981
• Docket Number: No. 79-1332,79-1332
• Citation: 100 Wis.2d 411,302 N.W.2d 517
• Parties: STATE of Wisconsin ex rel. Leon IRBY, Petitioner-Appellant, v. Thomas ISRAEL, Respondent.
• Court: Wisconsin Court of Appeals

Page 517

302 N.W.2d 517

100 Wis.2d 411

STATE of Wisconsin ex rel. Leon IRBY, Petitioner-Appellant, v. Thomas ISRAEL, Respondent.

No. 79-1332.

Court of Appeals of Wisconsin.

Argued July 17, 1980.

Opinion Released Jan. 27, 1981.

Opinion Filed Jan. 27, 1981.

Elizabeth Alexander, Asst. State Public Defender, for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., and Robert D. Repasky, Asst. Atty. Gen. (argued), on brief, for respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Petitioner Leon Irby appeals from a judgment dismissing his petition for a writ of habeas corpus.

February 12, 1972, petitioner began serving a life sentence for first-degree murder. November 1, 1974, he fatally stabbed another inmate. May 5, 1975 he was convicted of second-degree murder and sentenced to not more than fifteen years, consecutive to his original sentence.

After the assault, petitioner was immediately placed in temporary lockup status, pending an investigation of the assault. November 12, 1974 the Program Review Committee of Waupun Correctional Institution removed him from the general prison population and placed him in administrative segregation status. Administrative segregation is an involuntary, nonpunitive segregated confinement, designed to protect the staff and resident population and to avoid repetitious use of the disciplinary process. ¹ Administrative segregation is now known as administrative confinement and is referred to as such in this opinion. Except for the time he has been out of the institution and the times he has been placed in punitive segregation status for misconduct, ² petitioner has remained in administrative confinement. The issues pertain to petitioner's initial and continued placement in administrative confinement. He does not contest the propriety of his placement in temporary lockup or punitive segregation.

April 18, 1977, Irby filed a petition for a writ of habeas corpus, challenging his initial and continued administrative confinement. He alleged that he has been confined in the segregation building at Waupun since November 1, 1974 because of his 1975 murder conviction; that he has been denied due process by the lack of hearing to determine whether he should remain in the segregation building and by the prison's failure to follow its own rules; that his continued confinement is arbitrary and capricious; that he has been denied equal protection because other inmates convicted of equally serious offenses remain in the general population of the prison; and that his continued confinement constituted cruel and unusual punishment.

In a series of interim decisions, the trial court conscientiously reviewed existing procedures and devised new procedures for inmates in administrative confinement. ³ After a 1978 hearing which the court held was insufficient, the court ordered that petitioner be granted a hearing on the issue whether he should be returned to the general prison population, pursuant to newly developed departmental rules. ⁴ An "administrative hearing" was held in February 1979, following which the hearing committee rendered a divided decision. The minority member recommended that petitioner be returned to the general prison population. The two-member majority recommended that petitioner's present status continue but that steps could be taken to prepare petitioner more adequately for return to the general population and to provide the superintendent with a "more valid measure to predict his behavior on a somewhat freer environment." The majority recommended that a current psychiatric evaluation of petitioner be obtained, that he be transferred to a social rehabilitation unit program in a general population at another correctional institution, and that he be returned to administrative confinement in North Cell Hall after successful completion of the social rehabilitation program, following which a further hearing would be held to review the recommendations of the social rehabilitation unit. The superintendent adopted the majority's recommendations, pursuant to review required by department rules.

On the basis of the original return to the writ and the record of the 1979 hearing the court affirmed the decision and ordered judgment dismissing the writ. The court subsequently denied petitioner's motion to supplement the record with posthearing developments which made the steps recommended by the committee unavailable to him and entered judgment dismissing the writ.

Petitioner raises the following issues:

1. Was petitioner entitled to a due process hearing regarding the initial decision to confine him to administrative confinement?

2. Did the hearing on petitioner's continued segregation deny him due process by failing to disclose the evidence against him and by failing to provide a meaningful opportunity for cross-examination?

3. Was the decision of the hearing committee arbitrary and unreasonable because it was based on the false assumption that petitioner would be afforded a program designed to return him to the general prison population?

4. Did the procedures by which the hearing committee reconsidered its decision deny petitioner due process and require the trial court to hold an evidentiary hearing regarding the possibility of ex parte communications between respondent's counsel and the administrative fact finder?

5. Did the proceedings, taken as a whole, deny petitioner a fair hearing?

1. Mootness Of Propriety Of Initial Placement In Administrative Segregation

Petitioner demands a due process hearing on the merits of his initial placement. The issues in that hearing would be framed by a regulation which has been modified since November 1974 and is, we are informed by the attorney general, the subject of proposed revisions now under consideration. If we were to order that hearing at this late date, it would be based upon November 1974 facts. Those facts do not include petitioner's subsequent plea of guilty to second-degree murder, which established that he caused the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life. Sec. 940.02, Stats.1973. Findings made without taking the fact of that plea into account would lack reality. The hearing would ignore the opinion of the majority of the hearing committee formulated after the February 1979 hearing that petitioner should remain in administrative confinement. Petitioner does not contend that he should be released to the general prison population as the result of what he contends is the initial hearing to which he was entitled.

It would be an empty charade with a meaningless result, were we to decide whether petitioner was entitled to a due process hearing on his initial placement. Resolution of the issue raised as to the initial placement would have no practical legal effect on the controversy between appellant and respondent. That issue is therefore moot and beyond the scope of our review. Milwaukee Police Asso. v. Milwaukee, 92 Wis.2d 175, 183, 285 N.W.2d 133, 137 (1979). The real issue is whether petitioner's administrative confinement should be continued.

2. Continued Confinement

A. Due Process Applies

Petitioner has a state-created interest protected by due process in his eventual return to the general prison population. He was put in administrative confinement because his conduct created a danger of harm to others. Administrative confinement is inherently temporary. An inmate in administrative confinement is entitled to return to the general prison population when the danger causing that confinement no longer exists.

Petitioner therefore has an expectation that when the reason for his segregation no longer exists, he will return to the general prison population. The straitened conditions of administrative confinement make the expectation of return a substantial interest.

Accordingly, the state has created a conditional liberty interest available to petitioner which is entitled to protection under the fourteenth amendment to the United States Constitution. State ex rel. Terry v. Percy, 95 Wis.2d 476, 481, 290 N.W.2d 713, 716 (1980) (Terry III ); State ex rel. Terry v. Schubert, 74 Wis.2d 487, 497, 247 N.W.2d 109, 114 (1976) (Terry I ).

B. Evidentiary Disclosure And Cross-Examination Not Required

The Division of Corrections developed A.P. 3.020 in response to the directions by the trial court as to the hearing which must be held on the question whether a resident shall be continued in administrative confinement after twelve months of that confinement.

A.P. 3.020 provides, in material part, that the resident will be provided with an administrative hearing conducted by a committee. A committee member is directed to obtain written material or opinions from institutional staff, to schedule the hearing within ten workdays following twelve months of confinement, and to serve the resident with a notice of the hearing. The notice states that the hearing is an investigation of the reasonableness of returning the inmate to the general population, that the resident may have a staff advocate, that the resident's entire institution performance together with any prehearing investigative information will be considered, and that the resident may testify, present evidence, and request that witnesses be present. The rule states the standards to be considered for release from continued confinement, consisting of specified offense data, specified factors pertaining to the resident's motivation and behavior, the views of the staff as to security problems institutional ability to meet the needs of the resident, and staff recommendations.

Petitioner contends that A.P. 3.020 violates his right to due process because it does not require disclosure of the evidence against him and does not give him the right to cross-examine witnesses whose opinions and factual assertions are taken into account.

Petitioner's...