State Ex Rel. Whiting v. Kolb

SUNDBY, J.

(dissenting). On January 20, 1987, Superintendent Young posted the following notice to all inmates:

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.

Kolb represents that this regulation was promulgated under Wis. Adm. Code sec. HSS 303.63 which provides in part: "(1) Each institution may make specific substantive disciplinary policies and procedures relating to: . . . (d) Movement within and outside the institution

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It is not necessary that we reach Whiting's claim that the regulation is vague and overbroad, for it is plain that the regulation has nothing to do with movement within the institution and is not authorized by sec. HSS *240303.63. The department's interpretive note to sec. HSS 303.63 states:

Each institution, due chiefly to its unique physical facilities, security requirements and programs, must have the authority to regulate the matters specified in sub. (1) more specifically and frequently than is possible through the rulemaking process. This section provides the authority to do so. Only violations of policies and procedures authorized under this section and specifically under this chapter may be treated as violations permitting punishment. Such policies and procedures must be related to the objectives under HSS 303.01. [Emphasis added.]

Section HSS 303.01(3) provides in part: "The objectives of the disciplinary rules under this chapter are the following: (a) The maintenance of order in correctional institutions . . .." Subsection (3) enumerates other objectives but it is clear from Superintendent Young's special rule, that the rule is based on the objective of maintaining order in the institution. His memo states: "This [ritual] is a disruptive influence on the smooth and safe operation of the institution."

I conclude that the regulation of movement within the institution furthers the objective of maintaining order. If inmates are allowed to move about the institution as they please, obvious security problems are presented. We therefore should give a broad construction to Superintendent Young's special rule, if that rule furthers the objective of maintaining order within the institution. I cannot, however, stretch "movement" to include handshakes, embracing or kissing.1 "Movement" is defined as "the act, process, or result of moving." The *241Random House Dictionary of the English Language 1258 (2d ed. unabridged 1987). To "move" means "to pass from one place or position to another." Id. Of course, "move" can also mean "to change from one place or position to another." Id. Kolb does not suggest, however, that "movement" was intended to apply to the motion of the inmate's arms or lips in handshaking, embracing, or kissing. Such a construction of the word would be unreasonable.

Superintendent Young's special rule is therefore not within the contemplation of sec. HSS 303.63(1)(d).

The kissing aspect of the ritual could not be used by the committee to support its finding of a violation of sec. HSS 303.63 *241because Whiting was acquitted of "sexual conduct." Sec. HSS 303.02(15)(a) defines "sexual contact" to include "kissing."