01-1804 State ex rel. Curtis et al. v. Litscher, Secretary, Dept. of Corrections

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“Here, DOC transferred the inmates to a Wisconsin prison immediately after the disciplinary hearing. Once the inmates were returned to Wisconsin, the Tennessee court refused to review their cases. Because no statutory provision for judicial review of a prison disciplinary decision applied to the inmates in this case, we conclude that Wisconsin courts may review the Whiteville disciplinary decision by certiorari. …

“Although DOC has the statutory power to delegate some of its administrative functions to private prison facilities by contract, the contract facility performs those functions as agents of DOC and the State….. DOC’s contract with the private facility in Whiteville neither absolves DOC from ultimate responsibility for the performance of its assigned administrative functions nor precludes Wisconsin courts from conducting certiorari review of the disciplinary hearings in this case. Accordingly, we conclude that we have authority to review the issues raised by the inmates’ petition for a writ of certiorari.”

However, we further conclude that DOC may consider evidence of the inmates’ conduct at the Whiteville facility on Nov. 30, 1999, in future administrative confinement hearings.

“We conclude that we have authority to review the Dec. 9, 1999 disciplinary hearings by certiorari and that, even under DOC’s version of events, the Whiteville facility violated its, and DOC’s, disciplinary procedures by selecting a hearing examiner who witnessed the relevant events. Therefore, we invalidate the Dec. 9, 1999 disciplinary hearing and any subsequent hearing or change in status that relied on the findings from that hearing as a basis for the decision. However, we also conclude that DOC may hold administrative confinement hearings and consider the inmates’ alleged conduct to the extent that conduct is proved without relying on the findings from the Dec. 9, 1999 hearing. Accordingly, we affirm in part and reverse in part the order of the circuit court.”

Affirmed in part, and reversed in part.

Recommended for publication in the official reports.

Dist IV, Dane County, Nowakowski, J., Roggensack, J.

Attorneys:

For Appellant: Charles D. Hoornstra, Madison

For Respondent: Danny Webb, Waupun; Nathaniel Dukes, Whiteville; Eric Hune, Appleton, MN; Al Curtis, Waupun; Howard B. Eisenberg, Milwaukee