State ex rel. Meeks v. Gagnon

• Decision Date: 28 January 1980
• Docket Number: No. 79-406,79-406
• Citation: 95 Wis.2d 115,289 N.W.2d 357
• Parties: STATE of Wisconsin ex rel. Kenneth MEEKS, Petitioner-Appellant, v. John R. GAGNON, Respondent.
• Court: Wisconsin Court of Appeals

Page 357

289 N.W.2d 357

95 Wis.2d 115

STATE of Wisconsin ex rel. Kenneth MEEKS, Petitioner-Appellant, v. John R. GAGNON, Respondent.

No. 79-406.

Court of Appeals of Wisconsin.

Argued Oct. 25, 1979.

Opinion Released Jan. 28, 1980.

Opinion Filed Jan. 28, 1980.

Elizabeth Alexander, Asst. State Public Defender (argued), and Richard L. Cates, State Public Defender, on brief, for petitioner-appellant.

Richard J. Boyd, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for respondent.

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

GARTZKE, Presiding Judge.

Appellant Kenneth Meeks, an inmate in the Wisconsin State Prison at Waupun, has appealed from the order of the circuit court which affirmed the action of a prison disciplinary committee. The committee imposed a penalty of five days' adjustment segregation and recommended that Meeks be returned to maximum security for having fought with another inmate.

July 15, 1978 Meeks was charged with assault and fighting with Freddie Gee, in violation of the Division of Corrections Rules of Conduct. ¹ A staff advocate prepared a report for the committee. The investigation made by the advocate included written statements by Meeks, Gee and prison officers and interviews by the advocate with Meeks, the officers and other inmates. The report states that none of the inmate witnesses wanted to become involved, that many indicated that they saw the fight but most said that they did not see it start and that the rest claimed they knew nothing firsthand about it. The advocate concluded that the issues were whether Freddie Gee was the assailant and whether Meeks used more force than was necessary to protect himself from an assault.

The hearing was held July 21, 1978. The advocate and Meeks were the only witnesses although Meeks had requested the appearance of three inmate witnesses. The hearing record consists of a form worksheet, part of which requires the committee to list and summarize the evidence. The entries in this part are limited to the following: "See attached written report dated 7-21-78 from Staff Advocate Jerilynn Spencer" and Meeks' statement, "I bit Gee but didn't hit him. He attacked me first and I'm the person who rec'd the serious injuries." The worksheet contains space for the "reasons for the decision, including the evidence relied on." The entries in this part are limited to the following:

2.01 Assault Not guilty

2.07 Fighting Guilty

Report from infirmary dated 7-18-78

Letter from Gee to Mr. Winans regarding the incident

Meeks stated (sic) to Lt. Schultz dated 7-15-78

Lt. Schultz's Incident Report dated 7-15-78

Report from Officer Tierney dated 7-15-78

Both Gee and Meeks were injured

The worksheet space providing for the "Disposition and reasons for disposition" contains only the following entries: "5-days adjust. Seg. We recommend he be seen by PRC and that he be returned to maximum security. 2.01 Assault Not Guilty, 2.07 Fighting Guilty."

The issues are:

1. Does the record contain credible evidence that appellant used more force than was necessary to repel an attack by another inmate?

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

3. Was appellant arbitrarily denied the testimony of relevant witnesses?

4. Did the disciplinary committee fail to provide an adequate investigation?

5. What is the appropriate remedy?

Appellant properly sought judicial review of the action of the disciplinary committee by way of certiorari. No statutory provision existed for judicial review of the actions of the committee when appellant sought review in the circuit court. The committee action is therefore reviewable by certiorari. State ex rel. Johnson v. Cady, 50 Wis.2d 540, 549-50, 185 N.W.2d 306 (1971); State v. Goulette, 65 Wis.2d 207, 212-15, 222 N.W.2d 622 (1974).

A reviewing court on certiorari is limited to determining whether the commission kept within its jurisdiction, whether it acted according to law, whether the action was arbitrary, oppressive or unreasonable and represented its will and not its judgment, and whether the evidence was such that it might reasonably make the order or determination in question. Goulette, 65 Wis.2d 207, 215, 222 N.W.2d 622.

Judicial review as to whether the commission acted according to law includes the question whether due process of law was afforded. State ex rel. Ball v. McPhee, 6 Wis.2d 190, 199, 94 N.W.2d 711 (1959). Judicial review also looks to whether the commission has followed its own rules governing the conduct of its hearings, for an agency is bound by the procedural regulations which it itself has promulgated. Vitarelli v. Seaton, 359 U.S. 535, 539-40, 79 S.Ct. 968, 972-73, 3 L.Ed.2d 1012 (1959).

If review is had on certiorari the court may not consider matters outside the record. State ex rel. Conn v. Board of Trustees, 44 Wis.2d 479, 482, 171 N.W.2d 418 (1969). Allegations in the petition cannot supply facts which do not appear in the record. State ex rel. Grant School Dist. v. School Bd., 4 Wis.2d 499, 504, 91 N.W.2d 219 (1958). The return cannot be impeached by affidavits or other proof. State ex rel. Ellis v. Thorne, 112 Wis. 81, 89, 87 N.W. 797 (1901).

The hearing notice advised Meeks that if the committee found him guilty, he was subject to forfeiture of earned good time. Good time diminishes an inmate's sentence but may be forfeited for violation of a prison regulation and may not be restored after a forfeiture. Sec. 53.11(1) and (2), Stats. The record does not indicate whether petitioner had earned good time which he could have forfeited.

However, according to the advocate's report, petitioner had a MAP contract with a target parole date of April 29, 1979. The hearing notice stated that a finding of guilt could jeopardize rights under a MAP contract. MAP contracts and their enforceability are discussed in Coleman v. Percy, 86 Wis.2d 336, 272 N.W.2d 118 (Ct.App.1978). ² The purpose of a MAP contract is to inject a degree of definiteness into the discretionary parole system. According to the MAP manual, in exchange for a guaranteed parole release date, the inmate agrees to fulfill terms which he negotiates with prison officials. The agreement is enforceable in the sense that a decision by the officials adversely affecting the MAP parole date is judicially reviewable. Petitioner therefore risked loss of his specified parole date should the committee find him guilty of assault or fighting.

Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974), held that if a prisoner may lose good time as the result of a disciplinary hearing, the prisoner is entitled to certain minimum requirements of procedural due process, including "a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken." ³ The applicability of Wolff requirements to disciplinary hearings in Wisconsin was immediately recognized on rehearing in Steele v. Gray, 64 Wis.2d 422, 431a, 219 N.W.2d 312, Reh. 223 N.W.2d 614 (1974).

Loss of a specified and enforceable parole date under a MAP contract has much the same effect as loss of good time. A prisoner who may lose a specified release date under a MAP contract because of a disciplinary proceeding should therefore have the same procedural rights as he would have if faced with a potential loss of good time.

The hearing notice given to Meeks stated that an adverse decision could subject him to segregation and to isolation confinement of up to ten days. The Division of Corrections has adopted procedural rules for "due process hearings" which may result in segregation or loss of good time. One procedural rule provides, "In all due process hearings, the hearing tribunal shall set forth briefly the facts relied upon in reaching its findings."

The circuit court concluded that the Wolff requirement of a written statement of evidence relied upon and reasons had been met. It held that the list of evidence relied upon provided an adequate basis for review and sufficiently showed the reasons for the committee's decision. The court did not determine whether the division's procedural rules had been followed. The court reviewed the listed items and concluded, primarily on the basis of Freddie Gee's statement, that there was evidence to support the committee's decision. According to Gee's statement, Meeks initiated the fight and cut Gee with a knife when Gee rushed Meeks. The court said that while the committee found petitioner not guilty of assault, it did not necessarily find him not guilty of fighting. The court concluded that the evidence could have led to findings that Meeks could have withdrawn from the fight but that he continued to fight when it was no longer necessary to defend himself. The court noted that Meeks and Freddie Gee made many conflicting statements but concluded that the committee resolved those statements and that the committee's decision could not be overturned on the ground that there was no evidence to support it.

The bare listing by the disciplinary committee of the reports and statements before it plus a statement that both petitioner and Freddie Gee were injured is insufficient to meet the procedural requirements of Wolff or to meet the division's own procedural rule.

Hayes v. Walker, 555 F.2d 625 (7th Cir. 1977), Cert. den. 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977), held that a statement by a prison disciplinary committee that its decision was based upon a written violation report and upon the report of a special investigator did not meet the requirements of Wolff. Hayes concluded that merely incorporating the reports "does not ensure that prison officials will act fairly. Nor will this finding protect against subsequent collateral effects based on misunderstanding of the initial decision." 555 F.2d 625, 633. The reference to collateral effects is based upon the following statement in Wolff, 418 U.S. 539, 565, 94...