State ex rel. Irby v. Israel

• Decision Date: 11 April 1980
• Docket Number: No. 79-332,79-332
• Citation: State ex rel. Irby v. Israel, 95 Wis.2d 697, 291 N.W.2d 643 (Wis. App. 1980)
• Parties: STATE of Wisconsin ex rel. Leon IRBY, Petitioner-Appellant, v. Thomas ISRAEL, Respondent.
• Court: Wisconsin Court of Appeals

Page 643

291 N.W.2d 643

95 Wis.2d 697

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

No. 79-332.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 2, 1979.

Opinion Released March, 26, 1980.

Opinion Filed March 26, 1980.

Reconsideration April 11, 1980.

Richard L. Cates, State Public Defender, and Elizabeth Alexander, Asst. State Public Defender, for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., and Steven D. Ebert, Asst. Atty. Gen., for respondent.

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

GARTZKE, Presiding Judge.

AppellantLeon Irby, an inmate in the Wisconsin State Prison at Waupun, has appealed from the order and judgment of the circuit court which affirmed the action of a prison disciplinary committee.The committee imposed a penalty of three days' adjustment segregation and a return to program segregation.

The issues are:

1.Was appellant unconstitutionally denied the testimony of a relevant witness?

2.Was appellant unconstitutionally denied the right to introduce relevant documentary evidence?

3.Did the disciplinary committee adequately state the reasons for its decision?

4.Was appellant's conduct report arbitrarily classified as a major rather than a minor disciplinary offense?

5.What is the appropriate remedy?

Irby sought review on certiorari.The record on return discloses that Irby was charged with violation of three Division of Corrections Rules of Conduct: violation of a direct order, unauthorized possession of property and unauthorized transfer of property.¹Irby was in adjustment segregation at the time of the alleged violations.According to the report of the complaining officer, inmate Munoz passed a pack of cigarettes to Irby through the bars of Irby's cell for transfer by Irby to another prisoner in a cell down the line and Irby did not comply with the officer's order to give the pack to the officer.

Irby was given a written notice which warned that should he be found guilty, he would be subject to penalties involving adjustment confinement not to exceed eight days, segregation from the general population of the institution, forfeiture of part or all of earned good time and loss of rights granted under a MAP contract.²The notice stated that Irby had the right to demand a "formal hearing" and that if he made that demand, he had the right to a staff advocate, to request the presence of material eyewitnesses to testify on his behalf, to cross-examine, through the committee, the complainant, and to appeal the decision of the committee to the warden.Irby demanded a formal due process hearing and requested the testimony of three eyewitnesses: the prisoner who passed the cigarette package to Irby, another officer who was in the area at the time of the report and another individual whose name is illegibly written.

According to the disciplinary hearing record worksheet, the complaining officer stated that Munoz passed the cigarettes to Irby, the officer gave Irby a direct order to surrender the cigarettes at that time which Irby refused to do, and the officer was then requested to find out whether passing was allowed.According to Irby, he made the request to find out whether passing was allowed and the officer left for that purpose and returned and then gave Irby the direct order, by which time Irby had already passed on the cigarettes.The question whether passing was permitted arose out of a recent change in the prison regulations regarding unauthorized transfers between inmates.A copy of the "Waupun World Special" which purports to contain a statement of new passing rules was put in evidence.That rule provides that residents may pass minor property from cell to cell but not in the adjustment center.Irby stated that there was a memorandum by the prison security officer which states a rule different from that in the record.That memorandum was not put in evidence.

The officer witness was initially present at the hearing, at the request of the defendant, but did not testify.The notations in the hearing worksheet are ambiguous but indicate that the officer left the hearing to take a telephone call and did not return.

Irby's advocate at the hearing stated that Irby's action was done openly, questioned why charges against others, including a single charge against Munoz, had been dismissed, and referred to the memorandum Irby believes exists.Irby contends that the memorandum supports his position that transferring cigarettes was in fact allowed in adjustment segregation under the new rule.

The disciplinary committee found Irby guilty of each charge.Under the section of the worksheet requiring a narrative decision on the issue of guilt and reasons for the decision, is the entry "Guilty of 1.03 order 3.06 Unauth.Transfer3.04 Unauth. Poss."The committee gave no reason for imposing the penalty of three days' adjustment segregation and return to program segregation.

An "Institutional Complaint Investigator's Report" was made following Irby's written complaint regarding the procedures followed in his hearing.Irby complained that the officer witness, whose testimony he requested, was not present at his hearing and that a prison publication, the "Waupun World Special," rather than a copy of the new regulation on transfers between prisoners, was admitted in evidence.

The investigator states that the officer was present at the hearing but left to make a phone call and that inmates are entitled to call eyewitnesses but all witnesses must appear voluntarily.The investigator recommended that Irby's complaint be dismissed: "Since officer did not appear voluntarily and there is no evidence that anyone connected to staff of this institution denied complainant this witness, . . . ."The warden affirmed the investigator's recommendation.Irby appealed to the corrections complaint examiner who recommended dismissal of the complaint.The administrator, acting on that recommendation, dismissed the complaint.

A.Scope Of Review

We recently noted in State ex rel. Meeks v. Gagnon, 95 Wis.2d 115, 289 N.W.2d 357(Ct.App.1980), that judicial review of the action of a prison disciplinary committee is properly sought by certiorari.Review on certiorari is limited to whether the commission kept within its jurisdiction and acted according to law, whether the action was arbitrary, oppressive or unreasonable and represented the commission's will and not its judgment, and whether the evidence was such that the commission might reasonably make the order or determination in question.Meeks, supra.A reviewing court on certiorari may not consider matters outside the record on return to the writ.Allegations in the petition cannot add facts which are not in the record.Meeks, supra.

B.Right To Testimony Of Eyewitness

Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935(1974), held that a prisoner who may lose good time as the result of a disciplinary hearing is entitled to certain minimum requirements of procedural due process.Those requirements include an opportunity to present witnesses and documentary evidence when permitting the inmate to do so would not be unduly hazardous to institutional safety or correctional goals, and a written statement as to the evidence relied upon and the reasons for the disciplinary action.418 U.S. at 566, 94 S.Ct. at 2979.

The record contains no evidence that Irby had good time credits or a MAP contract which could be lost or jeopardized, either of which factors would entitle him under Meeks to the minimum requirements of procedural due process enunciated in Wolff.

Wolff did not directly involve the question whether minimum requirements for procedural due process must be observed if adjustment confinement is a possible penalty.However, the Supreme Court acknowledged in Wolff that the minimum requirements apply where the penalty may be a major change in the conditions of confinement, as well as the possible loss of good time.The Court stated that it would be difficult for the purposes of procedural due process to distinguish between the procedures required where good time is forfeited and those that must be extended when solitary confinement is at issue.

The latter represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct.Here, as in the case of good time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction.We do not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.418 U.S. at 571, n. 19, 94 S.Ct. at 2982.

Irby faced a possible penalty of adjustment confinement not to exceed eight days.This is a major change in the condition of confinement and gives rise to the minimum procedural due process requirements established by Wolff.

Meeks also dealt with the right of an inmate in a disciplinary hearing to call witnesses.Meeks held that while it was not necessary that a statement of reasons be given to support the denial of a request for witnesses, "some support for the denial of a request for witnesses (must) appear in the record."95 Wis.2d at 127, 289 N.W.2d at 365, quotingHayes v. Walker, 555 F.2d 625, 630(7th Cir.1977), cert. den.434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320(1977).Support for that denial must be founded upon hazard to institutional safety or correctional goals.Wolff, 418 U.S. at 566, 94 S.Ct. at 2979.

Failure by the committee to make the officer's testimony available denied Irby his right to call the witness.We find no support in the record for the committee's failure to call the guard as a witness, or to delay the hearing in order to obtain his testimony or to obtain his written statement for...