Taylor v. Franzen

• Decision Date: 20 February 1981
• Docket Number: No. 80-3,80-3
• Citation: 417 N.E.2d 242,93 Ill.App.3d 758,48 Ill.Dec. 840
• Parties: , 48 Ill.Dec. 840 Kenneth P. TAYLOR, Petitioner-Appellant, v. Gayle FRANZEN and James Greer, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 242

417 N.E.2d 242

93 Ill.App.3d 758, 48 Ill.Dec. 840

Kenneth P. TAYLOR, Petitioner-Appellant, v. Gayle FRANZEN and James Greer, Respondents-Appellees.

No. 80-3.

Appellate Court of Illinois, Fifth District.

Feb. 20, 1981.

Richard J. Habiger, Prison Legal Aid/Sandra K. Delzell, Senior Law Student, Carbondale, for petitioner-appellant.

Tyrone C. Fahner, Atty. Gen., State of Illinois, Melbourne A. Noel, Jr., Mark L. Rotert, Anita Donath, Asst. Attys. Gen., Chicago, for respondents-appellees.

KARNS, Justice:

Kenneth P. Taylor, petitioner-appellant, was committed to the Department of Corrections on March 5, 1974, for a term of four to ten years. During the course of his commitment Taylor accumulated good time credits (Ill.Rev.Stat.1979, Ch. 38, par. 1003-6-3) and participated in a work release program at the Southern Illinois Community Correction Center at Carbondale. On February 8, 1979, Taylor was charged with violating a condition of his work release agreement. One year of petitioner's good time credit was revoked because of his misconduct, but 90 days were later restored. The decision revoking petitioner's good time was affirmed by the Administrative Review Board. Taylor petitioned the Circuit Court of Randolph County requesting a writ of habeas corpus or mandamus to require restoration of his good time. The circuit court dismissed Taylor's petition. Taylor requests that we grant summary judgment in his favor and order the restoration of his good time.

Petitioner was participating in a work release program on January 31, 1979. One of the conditions of the program read: "I will participate in no form of exploitation, abuse, threat, force, violence, or act of aggression against another person." It was on the 31st of January that petitioner allegedly raped the victim, and thus violated the aforementioned agreement. Petitioner was not prosecuted for the alleged rape.

The incident occurred at approximately 10 p. m. on the Southern Illinois University campus in the Faner Building where the victim was employed as a teaching assistant and graduate student in the geography department. Petitioner's work release program placed him in frequent contact with the geography department where the victim worked.

After the incident, the victim received treatment at Memorial Hospital. The hospital staff reported the rape to the campus police which eventually lead to the supervisor of the correctional center filing a report on February 8, 1979, recommending that petitioner's work release status be revoked. A hearing was held on February 9, 1979, to determine whether Taylor had violated the terms of his work release agreement. Petitioner was provided with a notice of the hearing, told of the nature of the charge against him, and allowed the assistance of counsel. Taylor requested that two witnesses be called but his request was refused. The hearing panel reached no decision and continued the hearing for further investigation.

On March 7, 1979, the hearing panel again met to consider petitioner's case. Unlike the previous hearing, petitioner was not given any notice, was not allowed to appear nor was counsel for petitioner allowed to appear.

The hearing panel found that Taylor had violated his work release agreement and ordered him transferred to Menard Correctional Center. The panel recommended the revocation of petitioner's work release status and three years and nine months of petitioner's good time. Subsequently, respondent-appellee, Gayle Franzen, revoked one year of petitioner's good time but later restored 90 days.

We note that although petitioner has been released from prison, he is serving a mandatory supervised release which ends on January 17, 1983. However, if petitioner's good time was improperly revoked then he may be entitled to an earlier termination of his mandatory term of supervision. Therefore, this appeal has not been mooted by Taylor's release from prison.

Section 3-6-3(a)(1) of the Unified Code of Corrections (Ill.Rev.Stat.1979, Ch. 38, par. 1003-6-3(a)(1)) provides in part that "(t)he Department of Corrections shall prescribe rules and regulations for the early release on account of good conduct of persons committed to the Department * * *." The Code goes on to provide for the promulgation of rules and regulations governing the revocation of good conduct credit. Ill.Rev.Stat.1979, Ch. 38, par. 1003-6-3(c).

The Department of Corrections has established regulations pursuant to its statutory authorization. We are primarily concerned with two regulations, sections 804 and 1201 of the Administrative Regulations of the Department of Corrections, Adult Division. Section 804 details the procedures that must be followed before a resident's good conduct credit can be revoked. Section 1201 sets out the procedures that must be used to revoke a resident's work release status. The Department is bound to follow its own regulations. (Margolin v. Public Mutual Fire Insurance Co. (1st Dist. 1972), 4 Ill.App.3d 661, 281 N.E.2d 728); thus, our initial inquiry is whether the hearings given Taylor comply with the applicable regulations. We begin by summarizing sections 804 and 1201.

Section 804(II)(A) lists 28 "chargeable offenses" for which a resident's good time credit can be revoked. Before good time credit is revoked, section 804(II)(B)(3)(c) requires that the resident be accused of committing a particular chargeable offense in a resident disciplinary report. Section 804(II)(C) establishes the procedures that must be followed in determining whether a resident committed a chargeable offense. Section 804(II)(C)(2) provides that "(t)he resident must receive written notice of the facts and charges against him/her no less that 24 hours prior to the hearing * * *." Section 804(II)(G)(3) requires that the notice inform the resident that he has a right to appear at the hearing and present a statement; that he may present physical exhibits; that he has a right to request that individuals be interviewed and called as witnesses; and that he may ask that witnesses be questioned along lines suggested by him. Section 804(II)(G)(8) requires, if evidence is excluded, that a written reason be given for its exclusion. Section 804(II)(G)(9) provides that a resident may submit questions for witnesses but limits any right to cross-examine or confront witnesses. Questions submitted by a resident must be asked at the hearing unless found to be irrelevant, cumulative or pose a threat to safety. If witnesses are excluded, a written reason must be given. Section 804(II)(G)(10) limits the resident's right to counsel. Section 804(II)(G)(13)(b) provides that a hearing may be continued for up to 30 days for further investigation.

Section 1201 outlines the procedures required in revoking a resident's work release status. Section 1201(I) provides that "AR804 is incorporated in this Administrative Regulation by reference, and nothing in this Regulation should be construed to prohibit further disciplinary action in accordance with the provisions of AR804, provided that the conditions of AR804 are complied with." (Emphasis supp.)

The Administrative Review Board affirmed the revocation of petitioner's good time credit. The board found that the hearing was conducted expeditiously "in light of the emotional state of the witness as reflected by the documents presented before this Board." The documents relied on by the Board are not part of the record before us. The Board's decision went on to address the failure to call petitioner's witnesses and the failure to give reasons for their exclusion finding that, "(w)hile the Administrative Review Board does, of course, recommend that reasons for such a failure be stated on the written record, the failure to do so in this particular case was harmless * * *. The right to call witnesses at a Community Correctional Center Revocation Hearing is limited, in the Board's opinion." (Emphasis supp.) The Board also stated that "* * * the chargeable offense was extremely clear * * *."

After reviewing the record, we cannot agree that the hearing panel's violations of section 804 were harmless.

The specific violations claimed by Taylor are that he was given no notice, was not permitted to be present and was denied the assistance of counsel at the second hearing on March 7, 1979; the hearing panel did not interview or call petitioner's witnesses nor did it state any reasons for not interviewing or calling the witnesses; the panel did not state a reason for its action and did not explain why exonerating evidence was ignored; the panel did not consider a chargeable offense against the petitioner; the panel failed to provide petitioner with a fair and expeditious hearing; and the Board considered documents which petitioner was not allowed to read. In addition to violations of the regulations, petitioner alleges that his work release agreement is unconstitutionally vague and that the review of his case was unfairly prejudiced.

Taylor argues that the alleged violations of administrative regulations constitute a violation of due process. While disregard of an administrative regulation by an agency may constitute a due process violation (United States ex rel. Accardi v. Shaughnessy (1954), 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681), the process that is due under a state agency's administrative rules and the minimum constitutional safeguards required by the fourteenth amendment's due process clause are not always identical. (Durso v. Rowe (7th Cir. 1978), 579 F.2d 1365.) Thus, we address petitioner's allegations that applicable regulations were violated independent of his federal constitutional claims.

Although the Board found the chargeable offense extremely clear, it declined to elaborate which of the 28 offenses specified in Section 804(II)(A) was charged. The defendant was charged with violating a condition of his work release agreement which was adequate to revoke petitioner's work release status...