State ex rel. Whiting v. Kolb

Decision Date20 September 1990
Docket NumberNo. 89-1537,89-1537
Citation158 Wis.2d 226,461 N.W.2d 816
PartiesSTATE of Wisconsin ex rel. Randolph WHITING, Petitioner-Appellant, v. Darrell KOLB, Superintendent, Respondent.
CourtWisconsin Court of Appeals

Donald J. Hanaway, Atty. Gen., and E. Gordon Young, Asst. Atty. Gen., for respondent.

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

DYKMAN, Judge.

Randolph Whiting, an inmate in the Wisconsin State Prison at Waupun, appeals from an order sustaining the action of a prison adjustment committee. The committee found Whiting guilty of violating the prison's policy against ritualistic gang greetings, Wis.Adm.Code, sec. HSS 303.63, 1 and the rule prohibiting conduct for the purpose of identifying oneself with an inmate gang, sec. HSS 303.20. The first issue is whether the evidence supports the committee's determinations. We conclude the evidence supports a finding that Whiting violated sec. HSS 303.63 but not sec. HSS 303.20. The second issue is whether the prison's policy prohibiting ritualistic greetings is constitutional. We conclude it is. Accordingly, we affirm in part and reverse in part.

BACKGROUND

On January 20, 1987, Superintendent Warren Young adopted a policy prohibiting inmates from engaging in ritualistic greetings and departures. He issued a memorandum to all inmates, stating:

It has been noted some inmates have been engaging in a ritualistic greeting and departure that includes, but is not limited to, handshaking combined with embracing or kissing, etc. This ritual is no more than the recognition of one gang member by another and as such is gang symbolism. This is a disruptive influence on the smooth and safe operation of the institution.

Effective with the publication and distribution of this special, any inmate continuing to use that ritual in any manner or form will be dealt with disciplinarily.

Promulgated under the authority of Wisconsin Administrative Code, Chapter 303.

On August 22, 1988, Whiting met his brother-in-law, a fellow inmate, in the prison visiting room. He greeted his brother-in-law with a kiss and an embrace. Based on this conduct, Whiting was charged with violating Wis.Adm.Code, secs. HSS 303.20 (group resistance and petitions), HSS 303.63 (violations of institution policies and procedures), HSS 303.15 (sexual conduct), and HSS 303.24 (disobeying orders).

Whiting waived his right to a due process hearing under sec. HSS 303.76(2) and therefore had an informal hearing under sec. HSS 303.75. 2 The adjustment committee Whiting appealed the committee's decision to the superintendent. The matter was considered by Thomas Borgen, an associate warden. He sustained the committee's finding of guilt but reduced the punishment to a reprimand. In his memorandum to the superintendent explaining his decision, Borgen stated in part:

determined that Whiting violated secs. HSS 303.20 and HSS 303.63. The other charges were not substantiated. The committee imposed a penalty of three days adjustment segregation and 120 days program segregation.

I note that the disposition on this case differs from a recent case. Therefore, I contacted Capt. Oestreich. After reviewing the entire matter with Capt. Oestreich, I believe that a finding of guilt is justified, however, I would reduce the penalty to a reprimand.

It is my belief that this situation presents some legitimate concerns on behalf of hearing officers relative [to] what constitutes a violation and what does not. Therefore, I recommend that the disposition be reduced to a reprimand in the instance case and that Capt. Oestreich and myself discuss hearing and rules concerns with you at your convenience.

Whiting petitioned for a writ of certiorari. The trial court affirmed the decision.

STANDARD OF REVIEW

On certiorari, we review the action of the prison adjustment committee independently of the trial court. Our review is limited to the record created before the committee. State ex rel. Irby v. Israel, 95 Wis.2d 697, 703, 291 N.W.2d 643, 646 (Ct.App.1980). We determine (1) whether the committee stayed within its jurisdiction, (2) whether it acted according to law, (3) whether the action was arbitrary, oppressive or unreasonable and represented the committee's will and not its judgment, and (4) whether the evidence was such that the committee might reasonably make the order or determination in question. Id.

The test on certiorari review is the substantial evidence test, under which we determine whether reasonable minds could arrive at the same conclusion the committee reached. State ex rel. Richards v. Traut, 145 Wis.2d 677, 680, 429 N.W.2d 81, 82 (Ct.App.1988). "The facts found by the committee are conclusive if supported by 'any reasonable view' of the evidence, and we may not substitute our view of the evidence for that of the committee." State ex rel. Jones v. Franklin, 151 Wis.2d 419, 425, 444 N.W.2d 738, 741 (Ct.App.1989) (quoting Nufer v. Village Bd. of Village of Palmyra, 92 Wis.2d 289, 301, 284 N.W.2d 649, 655 (1979)).

SUFFICIENCY OF THE EVIDENCE

Whiting contends that the evidence does not support the adjustment committee's determination that he was guilty of violating secs. HSS 303.20 and HSS 303.63. Whiting does not dispute that he greeted his brother-in-law with a kiss and an embrace. He contends, however, that the evidence was insufficient to show that he was a gang member or that his greeting was the type used by gang members. He contends that such evidence was necessary to support a guilty finding under secs. HSS 303.20 and HSS 303.63.

The record contains a form worksheet listing the evidence on which the committee relied and the reason for its decision. The committee relied on the conduct report and considered Whiting's oral statement before the committee. According to the conduct report, staff member Meitzen "saw inmate Whiting ... kiss inmate Hinton on the lips and then embrace with both arms in the visiting room." The reasons the committee gave for its decision were that:

By admission [Whiting] intentionally hugged and kissed Hinton in the visiting room. It is a known fact that both are associated with the P.M.B. [a prison gang]. It is a known fact that the reason for the memo of 1/20/87 was to stop the ritualistic greeting of the P.M.B. We find he intentionally hugged and kissed Hinton in disobeyance of the memo (movement policy). We find his intentional greeting is not one of affection for his brother in law but was for the purpose of identifying himself as a P.M.B. member.

We conclude that the evidence supports the committee's determination that Whiting violated the prison's policy prohibiting ritualistic greetings under sec. HSS 303.63. 3 According to the conduct report, Whiting was observed greeting his brother-in-law with a kiss and an embrace. At the hearing, Whiting admitted he greeted his brother-in-law in this way. For a violation of the greetings policy, no showing of gang membership is necessary. It is enough that the inmate greets another with a handshake and an embrace or a kiss or with another similar greeting. Whiting's conduct fell within the zone proscribed by the policy because he kissed his brother-in-law.

We conclude, however, that the evidence does not support the committee's determination that Whiting violated sec. HSS 303.20(3), which provides:

Any inmate who intentionally participates in any activity with the purpose of identifying himself or herself with an inmate gang, as defined in s. HSS 303.02(9), is guilty of an offense.

The committee could not conclude that Whiting violated sec. HSS 303.20(3) unless it found that, in greeting his brother-in-law, Whiting intended to identify himself with a gang. The record does not support the committee's finding that Whiting's greeting was not to show affection for his brother-in-law, but was rather for the purpose of identifying himself with a gang. The committee apparently inferred the gang-related purpose of Whiting's greeting based on its belief that Whiting and his brother-in-law were members of an inmate gang. That inference is impermissible because no evidence of record supports it. Based on the facts of record, the committee could not find that Whiting's greeting had a gang-related purpose.

CONSTITUTIONAL CHALLENGE

Whiting contends that the prison's policy prohibiting ritualistic greetings is unconstitutional because, as applied to him, the policy violated his rights under the first amendment to the United States Constitution. He also contends that the policy is unconstitutionally vague and overbroad under the due process clause, U.S. Const. amend. XIV, sec. 1.

We first address whether the policy's application violated Whiting's free speech rights. Whiting, in essence, argues his first amendment rights were violated because he greeted his brother-in-law intending to show affection, not gang affiliation. We assume, without deciding, that Whiting's first amendment rights are implicated by the policy prohibiting ritualistic gang greetings, and we conclude that no first amendment violation occurred.

A prison regulation that impinges on an inmate's constitutional rights is valid if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). The Supreme Court has identified several factors that are relevant to determining the reasonableness of a prison regulation: (1) whether a valid, rational connection exists between the prison regulation and the legitimate government interest; (2) whether alternative means of exercising the right remain open to inmates; (3) whether the accommodation of the asserted constitutional right impacts on guards and other inmates and on the allocation of prison resources generally; and (4) whether ready alternatives to the regulation exist. Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-2262.

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