(dissenting). Prisoners retain rights under the due process clause. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). By Wis. Adm. Code, ch. HSS 303 the department has established procedures for imposing punishment on an inmate which implicate the inmate's due process rights. For example, if the offense is a "major" offense, segregation, extension of the inmate's mandatory release date or loss of good time are possible punishment. Where the state threatens sanctions of such magnitude, the inmate's interest "has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." Id. at 557. These minimum *427procedures include adequate notice and a meaningful opportunity to be heard. Id. at 557-58. Inmates' due process rights may, however, be "subject to restrictions imposed by the nature of the regime to which they have been lawfully committed." Id. at 556.
Thus, the hearing procedure for major violations prescribed by sec. HSS 303.76 may be subject to restrictions imposed because of the inmates' status as prisoners in a correctional institution. I conclude, therefore, that no constitutional right of an inmate is implicated if harmless error, sec. HSS 303.87, is applied to the hearing procedure under sec. HSS 303.76.
The majority, by its failure to discuss the time limit of sec. HSS 303.76(3) in constitutional terms, recognizes that the state is free to place restrictions on the hearing procedure as long as the inmate's right to due process is not adversely affected. The majority, nevertheless, refuses to apply the harmless error provision to the committee's four-day delay in holding the hearing on Jones's first conduct report.
The majority's holding may be summarized as follows: (1) The department is bound by its own rules. (2) The use of the word "shall" in sec. HSS 303.76(3) is "mandatory," not "directory." (3) Section HSS 303.76(3) gives only the inmate the right to waive the time limit thereunder.
First, it is no answer that the department is bound by its own rules. The harmless error provision in sec. HSS 303.87 is as much a part of the department's rules as is sec. HSS 303.76(3). Section HSS 303.87 provides:
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 substan*428tially affected when a variance from a requirement prejudices a fair proceeding involving an inmate.
Certainly the adjustment committee is bound by sec. HSS 303.76(3). It erred when it held Jones's hearing four days after the time limit. But the committee's acts are also subject to sec. HSS 303.87. Our review should focus on whether, under sec. HSS 303.87, the committee's error was harmless or whether it affected Jones's right to present defense in a meaningful way.
Second, whether to construe "shall" as mandatory or directory is not governed by a per se rule. The question is one of intent. In the case relied on by the majority, In Interest of R.H., 147 Wis. 2d 22, 433 N.W.2d 16 (Ct. App. 1988), aff'd, 150 Wis. 2d 432, 441 N.W.2d 233 (1989), we were construing a statute. We sought to discover the legislative intent. Similarly, we should seek to determine the department's intent in using the word "shall" in sec. HSS 303.76(3). In view of sec. HSS 303.87 I have no trouble concluding that the department did not intend that the committee's failure to hold a major-violation hearing within the time limit will, in every case, vitiate the committee's action. If the committee fails to hold a major-violation hearing within the time prescribed in sec. HSS 303.76(3), the committee's action will be vitiated only if the inmate's right to present a defense in a meaningful way is adversely affected by the delay.
Finally, the fact that an inmate may waive the hearing time requirement is not significant. The right to waive is obviously for the benefit of the inmate. This is not a case where the expression of the one excludes the other. I am willing to concede that the department did not confer upon the committee the power to waive the time limits of sec. HSS 303.76(3). If the committee had that power, there would be no error. Section HSS 303.87 *429assumes that there may be error but makes clear that technical, nonsubstantive errors on the part of staff may, if harmless, be disregarded. I find it significant that the example situation set forth in the Note to sec. HSS 303.87 involved staff error in complying with a time limit.* The majority precludes what sec. HSS 303.87 permits.
The department has recognized that too much formality in disciplinary proceedings may be counterproductive. In its Note to sec. HSS 303.64 the department states:
These objectives [maintaining order, rehabilitation], as well as the objectives of punishment and deterrence, can also be served in the less formal process. Unnecessary formality may in fact detract from some of these objectives. For example a formal adversary procedure may make it impossible to counsel an inmate about misbehavior, when counseling is more important than punishment. But increasingly, there has been pressure to rely on formal procedure. Sometimes, this detracts from fairness and other values served by the system. This is not to say that inmates should not be treated fairly. [Emphasis added.]
Wis. Adm. Code, ch. HSS 303, Appendix, Note: HSS 303.64.
*430The Supreme Court in Wolff, 418 U.S. at 570, also noted the possible detrimental effect of giving inmate disciplinary proceedings "a more adversary cast." The Court suggested that such a result might tend to reduce the utility of disciplinary proceedings as a means to further correctional goals. Our decision today emphasizes the "adversarial cast" of inmate disciplinary procedures. Because I do not believe that this result is justified or required under the department's rules, I respectfully dissent.
The Note reads as follows:
This rule is to make clear that technical, non-substantive errors on the part of staff in carrying out the procedures specified in this chapter, may, if harmless, be disregarded. For example, if an inmate is not served with an approved conduct report within the time specified, this would be harmless unless it affected the inmate's right to present a defense in a meaningful way. This rule conforms to present practices.
Wis. Adm. Code, ch. HSS 303, Appendix, Note: HSS 303.87.