Opinion
Case No. 95-2108.
Opinion Released: December 12, 1996 Opinion Filed: December 12, 1996 This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
APPEAL from orders of the circuit court for Dodge County: THOMAS W. WELLS, Judge. Affirmed.
Before Eich, C.J., Vergeront, J., and Robert D. Sundby, Reserve Judge.
Gary R. McCaughtry appeals from circuit court orders vacating discipline imposed on John Bergmann, and denying his motion for reconsideration. We affirm.
BACKGROUND
In four major conduct reports, Bergmann was accused of disobeying orders by attempting to contact his son. The reports were issued one each on May 9 and 17 and two on May 18, 1994. Each contained the following statement:
"The hearing officer or designee will notify you and your staff advocate of the date, time and place of the hearing.
A. The hearing shall be held not sooner than 2 days and no more than 21 days after the date you were given a copy of the above-referenced report."
The first portion of this notice apparently arises from Wis. Adm. Code § DOC 303.81(9) which provides: "The hearing officer shall prepare notice of the hearing and give it to the accused, the advocate (if any), the committee and all witnesses, including the staff member who wrote the conduct report."
It is undisputed that the "hearing officer or designee" did id not inform Bergmann of the "date, time or place of the hearing."
The circuit court remanded this case to the committee to amend the certiorari return with proof that Bergmann had been served notice. The committee did not comply, instead moving for reconsideration on legal grounds.
The disciplinary committee held a hearing on all four reports on May 26, 1996. Bergmann refused to attend on the grounds that he had not been given notice. The committee found him guilty of all four conduct reports. He appealed to Warden Gary R. McCaughtry, who affirmed. On certiorari, the circuit court reversed. It held that DOC had to comply with the procedural rules by giving notice, which was withheld here.
McCaughtry moved the circuit court for reconsideration on the grounds that this court has previously held that the second part of the notice (hearing to be no less than two days, no more than twenty-one days) was constitutionally sufficient. Saenz v. Murphy , 153 Wis.2d 660, 681, 451 N.W.2d 780, 788 (Ct.App. 1989), rev'd on other grounds, 162 Wis.2d 54, 469 N.W.2d 611 (1991). The circuit court denied McCaughtry's motion for reconsideration.
ANALYSIS
In essence, the circuit court held that a form notice of hearing within two to twenty-one days is not "notice" of the type required by the administrative code. McCaughtry argues that this is an incorrect statement of law, based on our holding in Saenz , 153 Wis.2d 660, 451 N.W.2d 780. We do not agree and conclude the trial court applied the correct law.
In Saenz , we considered the same notice given Bergman, and in Saenz , as in this case, the inmate was not given notice of the date, time, or place of the hearing. Saenz , 153 Wis.2d at 674, 451 N.W.2d at 785. We held that Saenz's right to due process was not violated because he received notice that his disciplinary hearing would be held at least two days but not more than twenty-one days after he was served with the notice and because he had more than twenty-four hours to marshal the facts and prepare a defense. Saenz , 153 Wis.2d at 681, 451 N.W.2d at 788.
However, in Irby v. Macht , 184 Wis.2d 831, 845, 522 N.W.2d 9, 15 (1994), the Wisconsin Supreme Court enumerated "procedures inmates must be afforded with respect to disciplinary hearings." (Emphasis in original.) Among the procedures which " must" be afforded, the court explicitly read into Wis. Adm. Code § DOC 303.81(9), a requirement that "inmates must be given notice of the hearing's time." (Emphasis supplied.) Although we are bound by our prior pronouncements, holdings of the Wisconsin Supreme Court take precedence. Livesey v. Copps Corp. , 90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct.App. 1979). Any holding of Saenz that is contrary to Irby is no longer good law. Where there are four conduct reports each charging distinct violations, the notice of the hearing must also inform the inmate which charges will be heard at the specified time. See Wolff v. McDonnell , 418 U.S. 539, 564 (1974) (adequate notice must inform inmate of charges and enable him to marshal facts and prepare defense). By the Court. — Orders affirmed.
As appellant concedes, Bergmann preserved for appeal his contention that he had no notice that all four cases would be heard together.