(dissenting). The circuit court properly rejected the argument that the department of corrections (the Department) is not obligated to follow its own promulgated rules for notifying prisoners of disciplinary hearings. It is the Department that has determined that a second notice is necessary, see WlS. Adm. Code § DOC 303.81(9), in spite of the earlier Wis. Adm. Code § DOC 303.76 notice to the prisoner. An agency is bound by the procedural regulations which it has promulgated. See State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 119, 289 N.W.2d 357, 361 (Ct. App. 1980). The supreme court rejected the Department's argument that failing to provide the § DOC 303.81(9) notice is of no consequence because of the § DOC 303.76 notice, see Bergmann v. McCaughtry, 211 Wis. 2d 1, 8, 564 N.W.2d 712 715 (1997), and we should reject the Department's argument that a prisoner can waive a procedural notice requirement that the Department has imposed upon itself.1
My colleagues conclude that because the Berg-mann opinion does not address a prisoner's waiver of the Wis. Adm. Code § DOC 303.81(9) notice by failing to object to the lack at the disciplinary hearing, we are compelled by Saenz v. Murphy, 162 Wis. 2d 54, 469 N.W.2d 611 (1991), to accept the viability of waiver and excuse the Department's failure. I disagree.
*614Saenz concerned a Department duty to "produce . . . witnesses requested by the prisoner" at a disciplinary hearing. See Saenz, 162 Wis. 2d at 64, 469 N.W.2d at 615 (emphasis added). The Department's duty in Saenz was reactive and subject to waiver by Saenz. Here, the Department's duty is proactive. Anderson-El need not request that the Department follow its own carefully drafted, implemented, promulgated and then ignored notice rules. The option of following its own rule or repealing an unnecessary rule is with the Department. I respectfully dissent and would affirm.
Missing from this discussion is the reason why the Department concluded that a second hearing notice was necessary. The Department's waiver argument suggests that it promulgated an unnecessary notice requirement. The 246-page code, see Wis. Adm. Code ch. DOC 302-350, is already of substantial prominence in the allocation of judicial resources and this court should carefully review any contention that a self-executing procedural rule an agency has imposed upon itself is superfluous.