(dissenting). Although neither party raised or briefed the issue of waiver in this sec. 1983 case, the majority opinion sua sponte decides the case on this issue. The majority opinion concludes that "the defendants are entitled to summary judgment as a matter of law because Saenz [the plaintiff] waived his right to call Dr. Strangman as a witness." Majority op. at 62-63, 469 N.W.2d at 615.1 do not believe the record supports this conclusion. Accordingly, I dissent.
The basis of the plaintiffs sec. 1983 claim is the failure of prison officials to produce a witness the prisoner (the plaintiff in this case) requested, or a written statement from the witness at the disciplinary hearing, *68as state law requires. The parties and the majority agree that the state must prove the offense at the disciplinary hearing and "produce . . . the witnesses requested by the prisoner or their signed, written statements." Majority op. at 64, 469 N.W.2d at 615. A reasonable inference from the record is that the state did not produce the witness or the written statement of the witness.1
The majority opinion concludes that by walking "out of the disciplinary hearing without objecting to the absence of Dr. Strangman or his signed, written statement," majority op. at 64, 469 N.W.2d at 616, the plaintiff waived "any error committed by the state." Id. The plaintiff was obliged, according to the majority opinion, *69to "object in some intelligible manner that the witness he requested is not present at his hearing in order to preserve that error for collateral review in a sec. 1983 action." Majority op. at 63, n.7., 469 N.W.2d at 615, n.7.
A waiver is a voluntary and intentional relinquishment of a known right. When a law confers a right or benefit, the person for whose protection or benefit the law was enacted may waive the benefit but "that waiver must be clear and unambiguous." Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 532-33, 277 N.W.2d 303 (1979).
Intent to waive is a question of fact ordinarily determined by the fact-finder. Intent to waive may be inferred by an appellate court as a matter of law when the facts are undisputed and only one reasonable inference can be drawn from the undisputed facts. Under these standards it is apparent that the sparse record in this case is insufficient to support the majority's conclusion that as a matter of law the plaintiff intentionally, voluntarily, clearly and unambiguously relinquished a known right.
Waiver may be expressed by word or conduct. The record does not contain the plaintiffs written or oral statement waiving the witness's presence or statement. Indeed the record shows that on several occasions the plaintiff expressly demanded his right to have the witness.
The plaintiff requested the witness in writing. The plaintiff did not complete or sign the form by which he could waive the formal due process hearing or his right to request witnesses.2
*70The disciplinary committee's own written record of the disciplinary hearing supports the conclusion that the plaintiff asserted his due process rights at the hearing. Indeed the plaintiffs leaving the hearing appears to have been a protest against the violation of his rights, not a waiver of his rights.
The only description of the hearing and the plaintiffs departure from the hearing is contained on the Division of Correction's printed form entitled "Disciplinary Hearing: Reasons for Decision and Evidence Relied On." The two defendants serving on the disciplinary committee completed the form. There is no transcript of the disciplinary hearing; nothing in the record describes the events of the disciplinary hearing other than the committee's own record. The affidavit of one of the committee members states merely that the plaintiff "refused to participate in the disciplinary hearing and walked out of the hearing."
In the space reserved on the Disciplinary Hearing Form for the inmate's [plaintiff's] statement, one of the defendants, not the plaintiff, wrote the following: "I plead not guilty, My due process is being violated, I never received notice of the hearing." In any event a reasonable interpretation of the defendant's own record *71is that the plaintiff was demanding his procedural rights at the disciplinary hearing, not waiving them.
Two days after the disciplinary committee hearing and decision, the plaintiff filed an appeal stating that one reason for appealing the committee's finding of guilt was that his witness was not produced. The plaintiff wrote: "I was denied the right to have a witness at my hearing, without a reason set forth in the record as to why my witness would not be available for testimony which is required by HSS 303.81." This statement demonstrates that the plaintiff did not intend his leaving the hearing to constitute a waiver of his rights.
I conclude that the record shows that the plaintiff repeatedly stated orally and in writing that he wanted his rights under the law, including his right to the witness.
The majority opinion infers waiver from the plaintiffs leaving the disciplinary hearing. The plaintiff has not been given an opportunity to tell what happened at the hearing or to explain what he intended by his conduct. Nothing in the record indicates that the plaintiff knew that by leaving the hearing he was waiving rights of any kind, much less the right to have witnesses testify at the hearing when the state had the burden by law to produce either the witness or a written statement from the witness. The majority opinion's inference that the plaintiff intended to waive his rights by leaving the hearing conflicts with the plaintiffs written and oral statements demanding his rights.
If the majority believes that the dispositive issue in this sec. 1983 case is the plaintiffs waiver of his rights, I conclude that this case must be remanded to the circuit court for a hearing and a factual determination of whether the plaintiff voluntarily, intentionally and knowingly waived his rights. Competing reasonable *72inferences from the limited record of the disciplinary hearing preclude summary judgment on the basis that the plaintiff waived his due process rights at the hearing.
For the reasons set forth, I dissent.
draw this inference from the only description of the disciplinary hearing in this record, namely the Division of Correction's printed form entitled "Disciplinary Hearing: Reasons for Decision and Evidence Relied On." In the space on the printed disciplinary hearing form marked "The committee relies on the following evidence in finding the inmate guilty," the two defendants on the committee checked the following items: Statement in conduct report; Institutions rules, policies or procedures was in a handbook given to all inmates; and verbal order to get in his cell. The defendants did not check, as they could have, that they had relied on other testimony or confidential witness statements. In other words, had the plaintiff's witness's statement been available and had the committee relied on it, the committee members would have had to check the appropriate box. They did not.
In the space on the disciplinary hearing form marked "Reason for Decision," the defendants completing the form wrote: "Inmate refused to give committee any information, got up and proceeded out of the hearing room. Therefore committee had to totally rely on statements in conduct report. Advocate (Sampson) stated inmate refused to have an advocate."
Moreover, at oral argument both parties assumed that neither the witness nor his written statement had been produced at the disciplinary hearing.
The section on the form contains four numbered statements with a box at the left of each for the inmate to acknowledge the statement. The statements are as follows:
1. I READ OR HAD READ TO ME THE NOTICE OF MAJOR
(Formal Due Process) DISCIPLINARY HEARING RIGHTS;
*702. I UNDERSTAND WHAT MY RIGHTS ARE;
3. I UNDERSTAND THAT WHEN I WAIVE MY RIGHTS, I
WAIVE THE RIGHT TO:
A STAFF ADVOCATE;
TO REQUEST WITNESSES;
OTHER POSSIBLE RIGHTS IN A FORMAL DUE PROCESS HEARING;
4. I WAIVE MY RIGHT TO A FORMAL DUE PROCESS
HEARING;
(a) I ADMIT I AM GUILTY;
(b) I DO NOT ADMIT I AM GUILTY.