State ex rel. Riley v. Department of Health & Social Services, 88-1388

• Citation: 445 N.W.2d 693,151 Wis.2d 618
• Decision Date: 13 July 1989
• Docket Number: No. 88-1388,88-1388
• Court: Court of Appeals of Wisconsin
• Parties: STATE ex rel. Roland RILEY, Petitioner-Appellant, v. DEPARTMENT OF HEALTH & SOCIAL SERVICES, and Warren Young, Superintendent, Waupun Correctional Institution, Respondents.

Page 693

445 N.W.2d 693

151 Wis.2d 618

STATE ex rel. Roland RILEY, Petitioner-Appellant, v. DEPARTMENT OF HEALTH & SOCIAL SERVICES, and Warren Young Superintendent, Waupun Correctional Institution Respondents.

No. 88-1388.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 6, 1989.

Opinion Released July 13, 1989.

Opinion Filed July 13, 1989.

Roland Riley, pro se.

Donald J. Hanaway, Atty. Gen., and George B. Schwahn, Asst. Atty. Gen., for respondents.

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

EICH, Judge.

Roland Riley appeals from a decision and an order denying his petition for a writ of certiorari and upholding a decision of the Waupun Correctional Institution Program Review Committee (PRC) placing him in administrative confinement on suspicion that he was involved in gang-related activities at the prison. One issue is dispositive: whether the committee exceeded its authority when it relied upon unsworn statements from prison informants as a basis for holding Riley in administrative confinement. We conclude that the committee exceeded its authority and we remand the matter to the trial court with instructions to order that all records of the administrative confinement be expunged and any resulting change in Riley's status be reversed. ¹

Pursuant to Wis.Adm.Code, sec. HSS 303.11(4)(b), ² Riley was placed in temporary lockup pending investigation into gang-related activities at the prison. The committee eventually concluded that Riley should be placed in administrative confinement, basing its decision in part upon unsworn statements by confidential informants which had been collected by a prison officer investigating gang activity. Riley appealed to the superintendent, who affirmed the committee's determination. He then sought certiorari review in circuit court.

The court remanded the matter to the department, directing it to justify the committee's use of unsworn statements as a basis for its decision. The department conceded that the informants' statements were unsworn, but attempted to cure the defect by submitting a statement from the investigating officer indicating his belief that the informants from whom the incriminating statements had been taken were reliable sources. The court accepted the statement as adequate and denied Riley's petition.

On certiorari review, we determine de novo whether the department acted within its jurisdiction, whether it acted according to applicable law, whether the action was arbitrary or unreasonable, and whether the evidence supported the determination in question. State ex rel. Meeks v. Gagnon, 95 Wis.2d 115, 119, 289 N.W.2d 357, 361 (Ct.App.1980). An important component of the analysis is whether the department followed its own rules, "for an agency is bound by the procedural regulations which it itself has promulgated." Id. And it is this component which is dispositive here.

Wisconsin Administrative Code, Chapter HSS 308, governs the procedures for administrative confinement. Section HSS 308.01 states that the purpose of the chapter is "to provide for an involuntary nonpunitive status for the segregated confinement of an inmate solely because he or she is dangerous, to ensure personal safety and security within an institution." Section HSS 308.04 sets forth the procedures which the department must follow when placing an inmate in administrative confinement. These procedures include, among others, notice, a hearing by the program review committee, and a requirement that the inmate be advised of his or her rights at the review hearing. The rule also gives inmates

[t]he right to present and question witnesses in accordance with sub. 6 and the hearing procedures for major disciplinary offenses except that, in the case of a confidential informant, a designated security staff member shall investigate to determine whether testifying would pose a significant risk of bodily harm to the witness. If the designated staff member finds a significant risk of bodily harm, he or she shall attempt to obtain a signed statement under oath from the witness and determine that the statement is corroborated in accordance with s. HSS 303.86(4). Wis.Adm.Code, sec. HSS 308.04(4)(e)4 (emphasis added).

The circuit court initially remanded the matter with directions to the committee to determine "whether there was adequate reason for excusing confidential witnesses from testifying and which statements made by the confidential witnesses, if any, were made under oath." In response to the order, the committee submitted a document entitled "Program Review Inmate Classification Summary" which included the following statements:

Confidential statements were made to Investigative [Officer] Lt. Titter and were necessary to obtain full and accurate disclosure by inmates of the persons involved in the gang activities. The investigation reports of Lt. Titter identify inmate informants by number and the committee relied on Lt. Titter's evaluation of the reliability of the information although the statements were not sworn.

Based on the guards' corroboration of Riley's alleged gang-related activities and Lt. Titter's apparent belief that the informants were reliable, the trial court dismissed the petition. Given the plain language of the "confidential informant" provisions of Wis.Adm.Code, sec. HSS 308.04(4)(e)4, we are constrained to hold that use of the informants' unsworn statements was impermissible.

The department disagrees, arguing that: (1) "the record contains constitutionally sufficient indicia of informants' reliability"; and (2) any error was "harmless" and should be "disregarded [because] it does not substantially affect the rights of the inmate," Wis.Adm.Code, sec. HSS 303.87.

We agree with the department that federal courts have held that as long as "the record, including the confidential record, reflects sufficient indicia of the informant's reliability," a prison disciplinary committee may consider an informant's evidence without revealing his or her name to the inmate being disciplined. McKinney v. Meese, 831 F.2d 728, 731 (7th Cir.1987). However, our review of applicable sections of the Code of Federal Regulations reveals no provision similar to Wis.Adm.Code, sec. HSS 308.04(4)(e)4. See generally, 28 C.F.R. sec. 541.10-23 (1988). As a result, we do not consider the federal cases cited by the department to be at all persuasive.

The department's "harmless error" argument is similarly unavailing. As we have said, agencies are bound by their own rules. State ex rel. Meeks, 95 Wis.2d at 119, 289 N.W.2d at 361. Such rules define the boundaries of an agency's authority, and when it abandons those rules the agency is acting beyond its authority. Id.

The state contends that we should ignore the committee's failure to obtain the informant's statements under oath, for it does not "substantially" affect Riley's rights. We disagree. In State ex rel. Staples v. DHSS, 115 Wis.2d 363, 369, 340 N.W.2d 194, 197 (1983), the supreme court recognized that the "clear" purpose of a similar "under-oath" provision in another ...