State Ex Rel. Hoover v. Gagnon

368 N.W.2d 657, 124 Wis. 2d 135, 1985 Wisc. LEXIS 2385
CourtWisconsin Supreme Court
DecidedMay 31, 1985
Docket84-460
StatusPublished
Cited by7 cases

This text of 368 N.W.2d 657 (State Ex Rel. Hoover v. Gagnon) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Hoover v. Gagnon, 368 N.W.2d 657, 124 Wis. 2d 135, 1985 Wisc. LEXIS 2385 (Wis. 1985).

Opinions

DAY, J.

This is a review of an unpublished decision of the court of appeals affirming an order of the circuit court for Dodge county, Honorable Thomas W. Wells, circuit judge. The circuit court’s order vacated the decision of the adjustment committee in a prison disciplinary action and remitted all punishment imposed by that committee against Myrle G. Hoover, an inmate at the Fox Lake Correctional Institution. The circuit court also ordered Mr. Hoover’s record be expunged.

The issues raised on this review are:

(1) Did Mr. Hoover execute a valid waiver of his right to the formal “due process” hearing to which he was entitled under Wis. Admin. Code section HSS 303 (1980)?

(2) If Mr. Hoover did execute a valid waiver of his right to a formal due process hearing, do the protections of Wis. Admin. Code section HSS 303.86(4) (1981), concerning witnesses who refuse to testify, apply to informal disciplinary hearings under Wis. Admin. Code section HSS 303.75 (1980) ?

(3) Was the record on return to the writ of certiorari required to contain the actual statement of a confidential inmate informant or was a summary of that actual statement sufficient?

We conclude that Mr. Hoover did waive his right to a formal due process disciplinary hearing, that HSS 303.86 (4) does not apply to informal disciplinary hearings, and that including a summary of the confidential informant’s statement was sufficient and did not deprive Mr. Hoover of any rights. We, therefore, reverse the decision of the court of appeals and that of the circuit court and reinstate the decision and discipline imposed by the adjustment committee.

[138]*138On July 26, 1983, at approximately 12:35 a.m., an inmate informed security officers at the Fox Lake Correctional Institution that Mr. Hoover had been attempting to take apart a bathroom window. Upon inspection the officers discovered that the screen had been cut and the window had been broken. They also discovered that one of the security screws was missing from the window frame and the paint had been scratched off several other screws.

According to the summary of the confidential statement of the inmate informant, the informant heard noises coming from the bathroom at approximately 11:00 p.m. The informant went into the hallway and observed Mr. Hoover holding an object wrapped in a rag. Approximately ten minutes later, the informant heard glass break and he looked out of the window of his room toward the source of the noise. A pane of glass was broken out of the bathroom window. The informant went into the bathroom and found Mr. Hoover loitering there. Shortly after he returned to his room, the informant heard a noise which sounded like metal straining. He again looked out of his window and saw a gloved hand grabbing the bathroom window frame. He went to the bathroom and saw Mr. Hoover standing near the window. No other inmates were present.

A security officer had seen Mr. Hoover go in and out of the bathroom several times after 11:15 p.m.

After the security officers inspected the bathroom, they inspected Mr. Hoover’s room. They found Mr. Hoover lying face down upon his bed, fully dressed and wearing his work boots. In his room the security officers found a pair of work gloves, a fingernail clippers which had been altered so that the file end would fit one hole in the security screws in the window, a belt in which the buckle was covered with masking tape, and a bent nail. [139]*139In the bathroom the officers found a brass squeegee wrapped in a towel.

Mr. Hoover claimed that he wore his clothes to bed to lose weight. He also claimed that he wore his shoes to bed to ease the pain of his migraine headaches.

A conduct report was filed on July 26, 1983, charging Mr. Hoover with attempted escape in violation of Wis. Admin. Code section HSS 303.22 (a)-A (1980)1 and damage to property in violation of Wis. Admin. Code section HHS 303.35 (1980).2 On July 28, 1983, Mr. Hoover signed a form waiving his right to a formal disciplinary hearing. On July 29, 1983, the disciplinary hearing was [140]*140held and the adjustment committee found Mr. Hoover guilty of both charges.3

Mr. Hoover filed a petition for writ of certiorari. The writ was issued by the circuit court and filed on October 21, 1983. A certified return to the writ was filed on November 1, 1983.

On January 31, 1984, the circuit court filed a memorandum decision and an order which vacated the decision of the adjustment committee, remitted the discipline imposed against Mr. Hoover, and ordered that Mr. Hoover’s record concerning the charges be expunged. The court of appeals, in its opinion filed September 4, 1984, affirmed the order of the circuit court. This court accepted this review to determine if Mr. Hoover executed a valid waiver of his right to a formal “due process” hearing, whether the provisions of HSS 303.86(4) apply to informal hearings, and whether in the context of this informal hearing the actual statement of the confidential inmate informant was required to be part of the certified return to the writ.

In reviewing the committee’s order on certiorari the reviewing court is limited to determining: (1) Whether the committee kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable; and (4) whether the evidence was such that it might reasonably make the order or determination in question. State ex rel. Staples v. DHSS, 115 Wis. 2d 363, 369, 370, 340 N.W.2d 194 (1983).

(1) WAIVER

Disciplinary proceedings involving inmates within the custody of the Division of Corrections are governed by [141]*141Wis. Admin. Code section HSS 303 (1980). HSS 303 provides that an inmate accused of a major violation of its provisions is entitled to a formal or “due process” disciplinary hearing.4 The disposition of a major offense, including the requirements of the formal hearing,5 is governed by HSS 303.76 to HSS 303.84. Wis. Admin. Code section HSS 303.64(c) (1980).6 The parties in this case do not dispute that the formal “due process” hearing provided by HSS 303 does comply with the minimum requirements of the due process clause of the Fourteenth Amendment for prison disciplinary proceedings as delineated in Wolff v. McDonnell, 418 US 539 (1974) .7 The [142]*142issue is whether Mr. Hoover, who was accused of a major violation of HSS 303,8 validly waived his right to the formal hearing to which he was entitled.

Wis. Admin. Code section HSS 303.77 (1980), provides that if an inmate accused of a major offense waives his right to a formal hearing, the disciplinary hearing shall be held in accordance with Wis. Admin. Code section HSS 303.75 (1980).9 In this case, Mr. Hoover’s hearing was conducted according to HSS 303.75 which provides the informal disciplinary hearing procedure for minor offenses under HSS 303.10 Unless Mr. Hoover executed [143]*143a valid waiver of his right to a formal hearing, the use of this informal hearing procedure deprived him of that right.

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Bluebook (online)
368 N.W.2d 657, 124 Wis. 2d 135, 1985 Wisc. LEXIS 2385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hoover-v-gagnon-wis-1985.