State Ex Rel. Jones v. Franklin

EICH, J.

Ricky Jones appeals from an order affirming a decision of the Kettle Moraine Correctional Institution Adjustment Committee finding him guilty of violating several prison disciplinary rules.

*421Two conduct reports are involved. The dispositive issue with respect to the first report is whether the committee's failure to hold a hearing on the allegations within twenty-one days of the issuance of the report, as required by Wis. Adm. Code, sec. HSS 303.76(3) deprives the committee of competency or jurisdiction to proceed in the matter. We hold that it does, and that, given the language of the rule, we may not engage in a "harmless error" analysis of the failure to hold a timely hearing. We therefore reverse on that issue. With regard to the second report, we see no error in the manner in which the committee proceeded, or in its ultimate decision, and we affirm.

The basic facts are not in dispute. Jones received the first conduct report on February 1, 1988. It charged him with violating three prison rules — disobeying orders, disruptive conduct and "punctuality and attendance." The report was issued after a prison officer complained that Jones disobeyed an order to end a telephone conversation in order to attend an inmate "count," and that the resulting "incident" created a mild disturbance among other inmates in the vicinity. The hearing on the report was held on February 26,1988, and the committee found Jones guilty of disobeying orders and the "attendance" violation and imposed disciplinary sanctions.

Jones had received a second report on February 5, 1988, charging him with lying to an officer. This charge was also considered by the committee at the February 26 hearing.

Jones did not appear personally at the hearing. He appeared through an advocate who informed the committee that he was relying on the evidence in the officers' incident reports. Jones was found guilty on this report as well. On certiorari, the circuit court affirmed *422both decisions and Jones appealed. Other facts will be referred to below.

I. THE UNTIMELY HEARING ON THE FIRST REPORT

Wisconsin Administrative Code, sec. HSS 303.76(3) provides that any inmate charged with violating prison disciplinary rules is entitled to a hearing before the committee and states that the hearing "shall be held no sooner than 2 working days or later than 21 days after the inmate receives a copy of the conduct report and hearing notice." The rule also provides that the inmate "may waive these time requirements in writing if the security director agrees . . .." There is no question that the committee did not convene the hearing on the February 1,1988, conduct report until after expiration of the twenty-one day period.

The department does not dispute the time-limit violation. It argues, however, that because there has been no showing by Jones as to how he was prejudiced by the delay, the "harmless error" provisions of sec. HSS 303.87 apply, and that those provisions require us to affirm the committee's decision. Section HSS 303.87 provides as follows:

If a procedural requirement under this chapter is not adhered to by staff, the error may be deemed harmless and disregarded if it does not substantially affect the rights of the inmate. Rights are substantially affected when a variance from a requirement prejudices a fair proceeding involving an inmate.

The department contends that where, as here, there is no proof that the inmate's rights were "substantially affected" by the committee's failure to follow the admin*423istrative rules, enforcing them would be a "needless formality." We disagree.

The department is bound by its own rules. State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 119, 289 N.W.2d 357, 361 (Ct. App. 1980). Those rules define the boundaries of the committee's authority, and when it abandons or exceeds them, it acts beyond its authority. Id.

As indicated, sec. HSS 303.76(3) gives the inmate the right to a hearing which "shall be held no . . . later than 21 days" after receipt of the notice of charges. Such language implies that the time is intended to be a limitation, as opposed to language simply providing that the act "shall" be done within a specific time. In Interest of R.H., 147 Wis. 2d 22, 26, 433 N.W.2d 16, 18 (Ct. App. 1988). In R.H., we held that a statute stating that, in actions to terminate parental rights, the trial court "shall set a date for the dispositional hearing which . . . is . . .no more than 30 days from the fact-finding hearing" was mandatory, and that failure to comply with its terms deprived the court of competency to entertain the action. Id. at 25, 433 N.W.2d at 17-18. The language of sec. HSS 303.76(3) requires a similar construction. Consequently, the committee lost competency to proceed when it failed to hold the hearing within twenty-one days.

As to the department's harmless error claim, whatever validity that claim may have with respect to other "procedural requirements" found in the disciplinary rules, we believe the plain language of sec. HSS 303.76(3) precludes application of the harmless error provisions of sec. HSS 303.87 to violations of the hearing time limitations. The inmate's right to a timely hearing may be waived only by the inmate. Sec. HSS *424303.76(3). The committee has no authority to waive it any more than it has the authority to disregard it.

If we were to apply the harmless error provisions of sec. HSS 303.87 to violations of sec. HSS 303.76(3), we would be allowing the committee to disregard its own rules by refusing to hold the hearing as required and by placing the burden on the inmate to gather and present evidence of harm or prejudice in order to vindicate his or her right to the hearing. We would thus be rewriting the rule to state that not only may the inmate waive the time limits, but that: "the department may also waive the time requirements unless the inmate is able to prove that such waiver will affect his or her substantial rights." The construction sought by the department would effectively nullify the plain statement in sec. HSS 303.76(3) that compliance with the mandatory time limits may only be waived by the inmate.

Administrative rules are subject to the same rules of construction we apply to statutes. Brooks v. LIRC, 138 Wis. 2d 106, 110, 405 N.W.2d 705, 706 (Ct. App. 1987). The primary source of the meaning of a rule is its language. St. ex rel. Smith v. Oak Creek, 139 Wis. 2d 788, 795, 407 N.W.2d 901, 904 (1987). And where, as here, provisions of a rule or rules which appear to conflict must be construed harmoniously, giving effect to the whole. State v. Fouse, 120 Wis. 2d 471, 477, 355 N.W.2d 366, 369 (Ct. App. 1984). We decline to apply the provisions of sec. HSS 303.87 to 303.76(3) so as to defeat the plain language of the latter rule restricting the ability to waive the hearing time limits to the inmate.

We conclude, therefore, that the "harmless error" provisions of sec. HSS 303.87 are inapplicable to violations of the twenty-one day time limitation for hearings in disciplinary proceedings under sec. HSS 303.76(3). We thus reverse the decision on the conduct report *425issued to Jones on February 1, 1988, and remand to the circuit court with directions to enter an order directing the department to expunge from Jones's record all reference to the conduct report dated February 1, 1988, as well as any changes in his status that may have resulted from the issuance of that report.

II. THE FEBRUARY 5,1989, REPORT

Jones raises several challenges to the disposition of his second conduct report. In certiorari actions we are confined to the record and our review 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 of determination it did. State ex rel. Hoover v. Gagnon, 124 Wis. 2d 135, 140, 368 N.W.2d 657, 659 (1985). The facts found by the committee are conclusive if supported by "any reasonable view" of the evidence, and we may not substitute our view of the evidence for that of the committee. Nufer v. Village Bd. of Village of Palmyra, 92 Wis. 2d 289, 301, 284 N.W.2d 649, 655 (1979), quoting State ex rel. B'nai B'rith F. v. Walworth County, 59 Wis. 2d 296, 303-04, 208 N.W.2d 113, 117 (1973); Van Ermen v. H&SS Department, 84 Wis. 2d 57, 64, 267 N.W.2d 17, 20 (1978).

Jones claims that the committee refused to permit him to call witnesses at the hearing, including the reporting officers, and that the committee, the prison and the officers wrote, approved and ruled upon the conduct reports in retaliation for his use of the inmate complaint system in the past. As indicated, Jones did not attend the hearings despite the opportunity to do so. In *426addition, he was advised of the due process regulations applicable to committee hearings and was asked on two separate occasions if he wanted to appear. He refused in each instance.

By his own actions, then — his "boycott" of the hearings — Jones has made it impossible to review his claims of error, for there is no evidence in the record that he ever requested to call any witnesses at the hearing or any evidence relating to his claim of retaliatory action on the part of prison officials. Given these facts, we tend to agree with the state that his claims with respect to the conduct report issued on February 5, 1989, constitute little more than "recreational litigation," and we reject them. We affirm the decision on that report in all respects.

By the Court. — Order reversed in part, affirmed in part and cause remanded for further proceedings consistent with this opinion.