JACKSON v. BUCHLER

JEFFREY ARLEN SPINNER, Judge.

Upon the following papers numbered 1 to 29 read on this motion for default judgment/summary judgment; motion for default judgment; Notice of Motion/Order to Show Cause and supporting papers 1 — 17; 18 — 26; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers 27 — 29; Replying Affidavits and supporting papers ___;

Other ___; ( and after hearing counsel in support and opposed to the motion) it is,

ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further

ORDERED that the motion by the plaintiffs for an order pursuant to CPLR 3215 directing the entry of a default judgment against defendant Mitchell Teitelbaum for failure to appear, answer or otherwise serve a responsive pleading, and pursuant to CPLR 3212 granting summary judgment in their favor as to the defendants' liability, is granted to the extent that, upon a proper submission, the Clerk of the Court is directed to enter a default judgment against defendant Mitchell Teitelbaum, that the plaintiffs are awarded summary judgment against defendant Lisa Teitelbaum, and that the attorney for the plaintiffs is directed to release escrow funds in the sum of two thousand two hundred ninety-two dollars and fifty-three cents ($2,292.53) to the plaintiffs held pursuant to the escrow agreement between the parties dated January 14, 2008, and to release the remaining escrow funds in the sum of two hundred seven dollars and forty-seven cents ($207.47) to defendant Lisa Teitelbaum, in a manner that she directs in writing to said attorney, and is otherwise denied; and it is further

ORDERED that the plaintiffs shall, within twenty (20) days of this order, serve a copy of this order with notice of entry upon all parties pursuant to CPLR 2103 (b) (1), (2), (3) or CPLR 2103 (c) and shall thereafter file the affidavits of service with the Clerk of the Court; and it is further

ORDERED that the motion (incorrectly denominated as a cross motion) by defendant Lisa Teitelbaum which seeks an order pursuant to CPLR 3215 for a default judgment against defendant Mitchell Teitelbaum for failure to serve an answer to her cross claims is denied.

This is an action to recover monies allegedly paid in error by the plaintiffs pursuant to a contract for the sale of real property, and to obtain the release of certain monies from an escrow account held pursuant to said sale. The complaint sets forth three causes of action, the first and second on behalf of Siben Siben, LLP as assignee, and the third on behalf of the individual plaintiffs. The first cause of action alleges that, pursuant to a mutual mistake by the parties, the plaintiffs were required to pay $4,566.25 for the second half school taxes due on the property after giving the defendants a credit at the closing based on the understanding that the taxes had been paid. The second cause of action alleges that the defendants have been unjustly enriched in the amount of $4,566.25. The third cause of action alleges that the parties entered into an escrow agreement pursuant to which the plaintiffs are entitled to a release of $2,292.53, which the defendants refuse to authorize.

On or about November 2, 2007, the defendants entered into a written contract of sale in which they agreed to convey their home to the plaintiffs. A review of the rider to the contract reveals that it contains the following relevant language:

1. If this rider conflicts in any way with the printed form Contract of Sale, this rider shall control.

* * *

16. The parties agree that any error in making final adjustments shall be corrected within ten (10) days after written notification of such error by either party to the other or to their respective attorneys, and this representation shall survive the closing.

On January 14, 2008, title to the property was closed and closing adjustments were made for the school and town taxes. The school taxes for the second half, or the period from January 1, 2008 to June 30, 2008, totaled $4,566.25, and an adjustment of $4,220.00 was given to the defendants for the period of time from the date of closing through June 30. 2008.

The amount of the credit given at the closing becomes irrelevant as the defendants benefitted in the amount of $4,566.25 after adding the credit they received to the amount which was the responsibility of the defendants to pay for the period from January 1, 2008 to January 14, 2008.

The plaintiffs now move for an for an order pursuant to CPLR 3215 directing the entry of a default judgment against defendant Mitchell Teitelbaum (Mitchell) for failure to appear and answer. CPLR 3215 (a) states, in relevant part that "[w]hen a defendant has failed to appear, plead or proceed to trial on an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him." A party seeking a judgment on default is required to submit proof of the service of the summons and complaint, proof of the facts constituting the claim, and proof of the default in answering or appearing (CPLR 3215 [f]; Matone v Sycamore Realty Corp. , 50 AD3d 978, 858 NYS2d 202, lv denied 11 NY3d 715, 873 NYS2d 533; Allstate Ins. Co. v Austin , 48 AD3d 720, 851 NYS2d 375; Grinage v City of New York , 45 AD3d 729, 846 NYS2d 300).

Here, the plaintiffs met their burden by submitting proof of original service and additional service of the summons and complaint upon Mitchell, the verified complaint, and the affidavit of plaintiff John Apisson establishing the facts of the claim. Mitchell, in opposition, failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action ( see, CPLR 5015 [a] [1]; Moriano v Provident New York Bancorp , 71 AD3d 747, 899 NYS2d 246; Lipp v Port Auth. of N.Y. N.J. , 34 AD3d 649, 824 NYS2d 671).

When a default is entered, the defendant "admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages" ( Curiale v Ardra Ins. Co. , 88 NY2d 268, 644 NYS2d 663). However, where the damages are for a sum certain or a sum which can be made certain by computation, the defendant is not entitled to an inquest ( Pikulin v Mikshakov , 258 AD2d 450, 684 NYS2d 598; Ettinger v Wilke , 79 Misc 2d 387, 358 NYS2d 597; cf., Abbas v Cole , 44 AD3d 31, 840 NYS2d 388). "[T]he term `sum certain' in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments" ( Pikulin v Mikshakov, supra , quoting Reynolds Sec. v Underwriters Bank Trust Co. , 44 NY2d 568, 406 NYS2d 743; cf., Bowdren v Peters , 208 AD2d 1020, 617 NYS2d 66). Stated another way, once liability has been established, and there is no dispute as to the amount due, a court can set the amount of damages ( Seaport Park Condominium v Greater New York Mut. Ins. , 2007 NY Slip Op 33772[U] [Sup Ct, NY County 2007]). Here, the plaintiffs have established their entitlement to a sum certain and Mitchell does not dispute the factual allegations in the verified complaint or the amount claimed therein. In addition, Mitchell fails to address the issue of the escrow held pursuant to the contract between the parties.

Accordingly, the plaintiffs' motion for an order pursuant to CPLR 3215 directing the entry of a default judgment against defendant Mitchell Teitelbaum in the principal amount of $4,566.25 is granted.

The plaintiffs also move for summary judgment alleging that the second half taxes were not paid by the defendants prior to the closing of title, and that they were required to pay the second half taxes in April 2008. While summary judgement cannot be granted against Mitchell because issue has not been joined as to him (CPLR 3212 [a]), the plaintiffs have established their entitlement to summary judgment against defendant Lisa Teitelbaum (Lisa). A review of the record reveals that the plaintiffs paid a credit to the defendants upon the mutual mistake of the parties that the second half school taxes had been paid, and thereafter they were required to pay the entire amount of the second half school taxes due. Once they discovered the error, the plaintiffs contacted their attorney, plaintiff Siben Siben, LLP (Siben). On January 7, 2010, Siben wrote to the attorneys for the defendants seeking to correct the error and obtain a return of the money paid. On January 26, 2010, Siben paid the plaintiffs the amount that the defendants owed to them in exchange for an assignment of the plaintiffs' first two causes of action. Lisa acknowledges the mistake of the parties and does not oppose this branch of the plaintiffs' motion. As to the third cause of action, the record reveals that the plaintiffs were not able to verify that the Jacuzzi tub located on the premises was in working order prior to the closing of title in this matter. Consequently, the parties entered into an escrow agreement which provided that the plaintiffs' attorney would hold $2,500.00 in its escrow account, that the plaintiffs would arrange to have the Jacuzzi tub repaired in the event that it was not in working order, that the plaintiffs would be reimbursed out of the escrow proceeds for the cost of said repairs, if any, and that the unused balance of the escrow funds would be refunded to Lisa. Again, Lisa does not dispute the factual allegations made by the plaintiffs.

Accordingly, the plaintiffs' motion is also granted to the extent of granting summary judgment in their favor and against Lisa for the relief demanded in the complaint, and that branch of the plaintiffs' motion which seeks a default judgment is rendered academic.

Lisa moves for an order pursuant to CPLR 3215 for an order directing the entry of a default judgment against Mitchell for failure to serve an answer to the cross claims asserted in her verified answer. The first cross claim alleges that Mitchell was solely responsible for payment of the school taxes due on the property pursuant to the stipulation of settlement in their divorce action and that he should be held responsible for any repayment owed to the plaintiffs. The second cross claim alleges that Mitchell is liable for the payment of Lisa's reasonable attorney's fees in defending this action.

In addition, although not noticed as a part of her cross motion, Lisa requests a stay of a small claims action commenced by Mitchell against her after the commencement of this action which raises the issue of indemnification between the parties for the error in the apportionment of the school taxes. The record does not reveal the current status of that action and the Court does not have enough information to determine if an injunction regarding the small claims action is necessary.

A party is not required to serve an answer to a cross claim unless the cross claim contains a demand for an answer (CPLR 3011). Here, a review of Lisa's verified answer reveals that neither cross claim contains a demand for an answer.

Accordingly, Lisa's motion is denied.

Siben Siben, LLP, as plaintiff on the first and second causes of action, is entitled to enter judgment against the defendants in the amount of $4,566.25 with interest from January 26, 2010. Siben Siben, LLP, as escrow agent on the third cause of action, is directed to release the sum of two thousand two hundred ninety-two dollars and fifty-three cents ($2,292.53) to the individual plaintiffs from the escrow account held pursuant to the escrow agreement between the parties dated January 14, 2008, and to release the sum of two hundred seven dollars and forty-seven cents ($207.47) to defendant Lisa Teitelbaum, in a manner that she directs in writing.

The Court directs that the causes of action as to which summary judgment was granted are hereby severed and that the remaining causes of action shall continue ( see, CPLR 3212 [e] [1]).

¶ 83. SHIRLEY S. ABRAHAMSON, C.J. (dissenting).

Darnell Jackson is not a sympathetic figure in seeking relief from this court. Darnell Jackson is in prison. He was convicted of one count of first-degree reckless injury and two counts of first-degree reckless endangering safety. He is a repeat offender. Furthermore, while he was serving his prison term, Darnell Jackson was convicted of battery by a prisoner; he was sentenced to a consecutive four-year term for that offense.

¶ 84. Jackson is before the courts once again because a prison disciplinary committee, called the Adjustment Committee, found that Jackson "more likely than not" committed the act of inciting a riot. As a result of this finding, Jackson was sentenced to 360 days in segregation, and he lost 179 days of good-time credit. His mandatory release date was extended so that he is serving an additional six months in prison.

Wis. Admin. Code § DOC 303.18, 303.76(6)(b)(c) (Deo 2006).

¶ 85. The essence of Jackson's arguments in the circuit court, the court of appeals, and this court is that he did not get a due process hearing, that is, that his disciplinary proceeding did not comply with the federal and state constitutional guarantees of due process and with the procedures set forth in the Department of Corrections administrative regulations.

¶ 86. Clearly, a prisoner in a disciplinary hearing does not have the same panoply of rights as a defendant in a criminal trial or a person who is not institutionalized. Prisoners' rights are limited for the safety and security of inmates, prison staff, personnel, and visitors.

"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a reaction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948).

¶ 87. Just as clearly, a prisoner does not forfeit all rights at the prison gate. The seminal United States Supreme Court case governing the constitutional rights of prisoners is Wolff v. McDonnell, 418 U.S. 539 (1974), and this court has adhered to its teachings. The United States Supreme Court has declared that though an inmate's "rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country."

Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).

¶ 88. Beyond the constitutional due process rights due prisoners, prisoners are entitled to whatever due process rights are afforded them by the prison disciplinary regulations. When the Department fails to abide by its own regulations, the proceedings are rendered in-valid.

State ex rel. Riley v. DHSS, 151 Wis. 2d 618, 623, 445 N.W.2d 693 (Ct. App. 1989) (Wis. Admin. Code binds the Department of Corrections to the regulations it promulgates).

See State ex rel. Anderson-El v. Cooke, 2000 WI 40 ¶ 20, 234 Wis. 2d 626, 610 N.W.2d 821 ("Very simply, the Department did not comply with its own notice requirement under § DOC 303.81. Because it failed to abide by its own regulations, the proceedings are rendered invalid.").

¶ 89. The Department of Corrections has set forth regulations governing prison discipline for a major violation such as inciting a prison riot. The regulations provide that the institution "shall inform the inmate of . . . [ t]he right the inmate has to a due process hearing. . . ." Jackson was informed of his right and chose to have a due process hearing.

Wis. Admin. Code § DOC 303.76(1)(c) (Dec. 2006) (emphasis added).

¶ 90. The court's difficulty in deciding Jackson's due-process-based objections to the disciplinary hearing is evidenced in the long and unusual history of the case and the majority opinion's failure to come to grips with the due process issues Jackson has raised.

¶ 91. The case has been pending in this court for an unusually long time, from April 2009, the date the petition for review was granted, until the mandate, December 14, 2010. Jackson filed two sets of briefs and a memorandum brief; the State did the same. The parties have been before the court twice in oral argument (once in December 2009; the other time in September 2010). Between the two oral arguments the court remanded the matter to the circuit court by an unpublished order dated February 2, 2010, to receive the videos. On June 4, 2010, the court ordered the parties to file memoranda regarding the outcome of the remand.

Unpublished order dated Feb. 10, 2010 (Roggensack, Ziegler, Gableman, JJ., dissenting).

¶ 92. Upon consideration of the parties' memoranda regarding the outcome of the remand, on June 23, 2010, the court ordered the parties to address, inter alia, the sufficiency of the evidence in the light of the video evidence received on remand and Brady concerns (that is, whether the Department of Corrections violated Mr. Jackson's due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the video to Mr. Jackson).

The June 23, 2010 unpublished order directed the parties to file further briefs addressing the following:

(1) whether, in light of the video evidence received by the circuit court of remand, sufficient evidence exists to sustain the adjustment committee's finding that Mr. Jackson incited the riot at New Lisbon Correctional Institution on November 11, 2004; (2) whether the DOC violated Mr. Jackson's due process rights under Brady v. Maryland [ 373 U.S. 83 (1963)], by failing to disclose to Mr. Jackson the video received by the circuit court on remand (including whether the circuit court properly determined that the video was neither material nor exculpatory); and (3) whether the respondents-respondents agree with and/or stipulate to the factual descriptions of the contents of the video set forth in Mr. Jackson's post-remand memorandum.

The court does not address Brady v. Maryland, 373 U.S. 83 (1963). Majority op., ¶ 72 n. 27.

¶ 93. The majority opinion recognizes that "our inquiry is focused on whether the procedures employed by the adjustment committee satisfied due process," majority op., ¶ 39, and that "the touchstone of our analysis is whether the procedures used by the committee were fundamentally fair," majority op., ¶ 51. But the majority meanders off course, distracting itself and the reader from the "focus of," and "the touchstone of," the inquiry. It ignores the procedures used by the Adjustment Committee in the disciplinary proceeding and instead reviews only the sufficiency of the evidence presented against Jackson.

The majority opinion suggests that the proper analysis is the sufficiency of the evidence because Jackson himself raised and advanced the issue of the sufficiency of the evidence in this court. Majority op., ¶ 54 n. 19.
In his first set of briefs, Jackson argues that the lack of videos undermined the evidence presented so that he should prevail on a due process claim based on insufficient evidence. Brief and Appendix of Darnell Jackson at 18-20.
After remand, when the circuit court received videos, Jackson asked this court to allow the parties to submit supplemental briefing on the sufficiency of the evidence. See PostRemand Memorandum of Petitioner Darnell Jackson dated June 18, 2010, at 19. On June 23, 2010, the court ordered the parties to brief the sufficiency of the evidence issue. Jackson's request was for supplemental briefs. Supplemental briefs are briefs in addition to the original briefs, not replacements or substitutions for the original.
Jackson's supplemental argument was initiated by the remand order of this court and focused on the impact of the video evidence presented to the circuit court as directed by this court. His supplemental arguments do not extinguish his prior arguments asserting that the disciplinary proceeding was procedurally deficient in a number of ways, thereby violating Jackson's due process rights.
At the second oral argument after the remand, Jackson's counsel asserted that the conclusions of the Adjustment Committee should be reversed on three grounds. He argued, "First, the process that the Department of Corrections used in this case was not in accordance with law. When the Warden realized that the video did not substantiate the finding of guilt he ordered the video removed rather than instruct the disciplinary committee to consider that video in connection with the other evidence and reconsider its findings."

¶ 94. By avoiding the analysis of whether the Adjustment Committee acted according to law, the majority shirks its responsibility on certiorari review to ensure that Jackson was afforded his constitutionally and statutorily protected due process rights.

¶ 95. Rather than focusing on whether due process was afforded, the majority concludes that because there was sufficient evidence on which the Adjustment Committee and Warden could have based their decisions, the Adjustment Committee's decision stands.

¶ 96. But, if the procedure before the Adjustment Committee was defective, the sufficiency of the evidence does not save the proceeding. Procedural rules are designed to ensure that relevant evidence is brought forth to enable the decision maker to reach the correct result. Defects rendering the procedure violative of constitutional and statutory due process render the evidence presented suspect. Thus, the sufficiency of the evidence is not the proper analysis when the focus or touchstone of the court's inquiry, as the majority opinion acknowledges, is whether Jackson got a due process hearing before the Adjustment Committee.

¶ 97. This court on certiorari review is limited to reviewing the record. It is the Department of Corrections' obligation to present the record for judicial review. Yet on the face of the documents in the record before this court it is beyond dispute that this court does not have the record of the disciplinary proceedings — the videos are missing. Because the court does not have a record of the evidence upon which the Adjustment Committee relied, I conclude that due process has been violated and Jackson must be accorded a new hearing that complies with constitutional and statutory due process requirements.

State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 120, 289 N.W.2d 357 (Ct. App. 1980). See also Klinger v. Oneida County, 149 Wis. 2d 838, 846, 440 N.W.2d 348 (1989); State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990).

¶ 98. Moreover, a number of other defects are also apparent in the record of this disciplinary proceeding. The totality of the circumstances, the cumulative effect of the procedural defects, leads me to conclude that Jackson did not get a due process hearing as required by the federal and state constitutions and the regulations of the Department of Corrections.

¶ 99. And so here's the puzzle: What happened to the procedures used being the "focus" and "touch-stone" of the majority's analysis? When the majority doesn't know what evidence was before the Adjustment Committee or Warden, how can the majority conclude whether there was sufficient evidence for the Committee or Warden to determine Jackson's guilt? On the basis of this defective record, how can the majority conclude, on certiorari review of the record, whether the actions of the Adjustment Committee or Warden were arbitrary or oppressive or unreasonable?

I

¶ 100. Jackson contends, inter alia, that the Adjustment Committee relied on videos to find Jackson guilty; that the videos were therefore part of the record that Jackson was entitled to have reviewed on certiorari; and that the Department of Corrections cannot arbitrarily remove the videos from the record. He asserts that he "is entitled to have a court review the committee's finding based on a full record." I agree with Jackson's reasoning.

Brief and Appendix of Darnell Jackson at xii, 26-27.

Reply Brief of Petitioner Darnell Jackson at 1. "The DOC's failure to produce the video as part of the record on certiorari review — or at any time — precluded a fair review by the lower courts and violated Jackson's due process rights." Reply Brief of Petitioner Darnell Jackson at 3.
"Although the Committee's report identifies the video as evidence that it considered before finding Jackson guilty, Respondents refuse to produce it. This is error: Jackson is entitled to have a court review the committee's finding based on the full record." Reply Brief of Petitioner Darnell Jackson at 1.

¶ 101. On certiorari, courts are limited to reviewing the agency record.

State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 120, 289 N.W.2d 357 (Ct. App. 1980). See also Klinger v. Oneida County, 149 Wis. 2d 838, 846, 440 N.W.2d 348 (1989); State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990).
Moreover, the court's review of the agency decision is limited to four inquiries: (1) whether the agency acted within the bounds of its jurisdiction; (2) whether it acted according to law; (3) whether its action is arbitrary, oppressive, or unreasonable and represented its will, not its judgment; and (4) whether the evidence was sufficient that the agency might reasonably make the determination in question. State ex rel. Hoover v. Gagnon, 124 Wis. 2d 135, 140, 368 N.W.2d 657 (1985).

¶ 102. On its face, the record is flawed. The court does not have a record of the evidence upon which the Adjustment Committee relied. The Adjustment Committee's decision states that the Committee relied on videos in finding Jackson guilty. No videos were part of the record initially sent to the court. No one knows whether the videos sent to the court on remand are the videos that the Adjustment Committee viewed and relied upon in finding Jackson guilty.

¶ 103. "`[A] written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action" is a basic due process right.

Wolff, 418 U.S. at 564-65 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

¶ 104. A comprehensive and adequate record must be kept and provided to the courts for purposes of review, as the majority opinion acknowledges. A written record, according to the United States Supreme Court, helps insure that administrators will act fairly and protects the rights of the inmate. "Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others."

See majority op., 145; State v. Goulette, 65 Wis. 2d 207, 216, 222 N.W.2d 622 (1974).

Wolff, 418 U.S. at 565:

Written records of proceedings will thus protect the inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly.

Wolff, 418 U.S. at 565.

¶ 105. The written record may exclude certain items of evidence when personal or institutional safety is implicated. But in these circumstances the record should indicate the fact of the omission and the reason for the omission.

Id.

¶ 106. The regulations of the Department of Corrections that promise a due process disciplinary hearing envision a written record of the hearing made by the Adjustment Committee. It need not be a verbatim record, but a written record has to be made. A warden, the courts, or another body that "may take action partly in reliance upon the decision of the disciplinary committee must not be compelled to guess as to the facts relied upon and the reasons for the decision of the committee." The regulations provide that on appeal, the warden "shall review all records and forms pertaining to the appeal." Further, a court on certiorari review of an agency decision is, as we have stated previously, limited to the record.

State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 124, 289 N.W.2d 357 (Ct. App. 1980) (holding that a bare listing by the disciplinary committee of the reports and statements before it is insufficient to meet the procedural due process requirements of Wolff `and the Department of Corrections' own procedural rules; citing Hayes v. Walker, 555 F.2d 625, 633 (7th Cir. 1977) ("This general finding [merely incorporating the reports before it] does not ensure that prison officials will act fairly. Nor will this finding protect against subsequent collateral effects based on misunderstanding of the initial decision.")).

Wis. Admin. Code § DOC 303.76(7)(b) (Dec. 2006).

¶ 107. Not only must there be a written record of the evidence upon which the fact finder relied, but constitutional due process and the regulations envision that the inmate will be given a written statement as to the evidence relied upon by the decision maker. The Department of Corrections' printed form for the decision of the Adjustment Committee (entitled "Disciplinary Hearing — Reasons for Decision and Evidence Relied On") envisions that the evidence relied upon is summarized on the form and that a copy of the decision, which relates the evidence relied on and the reasons for the decision, is given to the inmate. I am attaching a copy of the Decision of the Adjustment Committee in the present case as Exhibit A so the reader can see the Decision and more easily follow the procedure.

Wolff, 418 U.S. at 563-64 (one of the procedures that must be provided to prisoners to satisfy minimum due process is "a written statement of the factfinders as to the evidence relied upon and reasons for the disciplinary action taken"); Wis. Admin. Code § DOC 303.76(6)(f) (Dec. 2006) ("After the hearing the Adjustment Committee [shall]: . . . Provide the accused inmate and the inmate's advocate, if any, a written copy of the decision with reasons for the decision.")

Wis. Admin. Code § DOC 303.76(6)(f) (Dec. 2006) ("After the hearing the adjustment committee [shall]: . . . (f) Provide the accused inmate and the inmate's advocate, if any, a written copy of the decision with reasons for the decision."

¶ 108. The Department of Corrections regulation governing the due process hearing (Wis. Admin. Code § DOC 303.76) provides that the accused inmate is present at the hearing and may present evidence. These inmate's rights may be limited in some instances for security concerns. In the present case, for example, in compliance with the regulations, Jackson was given a summary of the signed statements of witnesses who did not appear and whose identity was not revealed because of a risk of harm to the witnesses.

Wolff, 418 U.S. at 563-64; Wis. Admin. Code § DOC 303.76(5)(b) (Dec. 2006) (witnesses appear at hearing); Wis. Admin. Code § DOC 303.81(5) (Dec. 2006) (if testifying poses a risk of harm to a witness, the adjustment committee may consider a corroborated signed statement under oath from the witness without revealing the witness's identity).

¶ 109. The problem in the present case is that the Adjustment Committee's Decision states in two places that it relied on video evidence in determining Jackson guilty of inciting a riot, but no one knows whether the Adjustment Committee or the Warden ever saw any video, and if either did, what video was seen. If the video had been shown at the hearing, then Jackson would have viewed the video unless the Committee determined that security reasons required that he not see it. Nothing in the record suggests that the Committee determined that he could not be present for a viewing of video evidence.

A majority of this court, apparently troubled by the incomplete record before it and prompted by Jackson's claims that Brady v. Maryland, 373 U.S. 83 (1963), applies to prison discipline proceedings, remanded this case to the circuit court to receive video evidence and determine whether the evidence was exculpatory.
My analysis of the present case does not raise a Brady issue. In Brady, the prosecutor failed to turn over evidence to the defendant when the evidence was not used at trial. In the present case the video was apparently used as evidence by the Adjustment Committee.
Jackson acknowledges that there is no requirement that prison officials produce physical evidence supporting the inmate's guilt for inspection at his disciplinary hearing. He argues, however, that when the record was corrected to indicate that the video was not inculpatory, Jackson obtained a right to view that evidence under Brady. Brief and Appendix of Darnell Jackson at 23.

¶ 110. Initially, on Jackson's appeal to the Warden, the Warden affirmed the Adjustment Committee's Decision, which twice referred to videos as evidence to support its conclusion. The Warden could have modified the Adjustment Committee's decision or returned the case to the Adjustment Committee to correct the record at that time. See Appeal of Adjustment Committee or Hearing Officer's Decision (attached as Exhibit B); Wis. Admin. Code § DOC 303.76(7)(c) (Dec. 2006). After Jackson sought judicial review of the Warden's decision, the Warden, on August 29, 2005, issued a memorandum sending the Adjustment Committee's Decision back to the Adjustment Committee with instructions to change the Decision to remove reference to any video from the Decision. See Warden's memorandum (attached as Exhibit C). The Warden's memorandum appears to be inconsistent with the regulations. More about this later.

Wisconsin Admin. Code § DOC 303.76(7)(c) (Dec. 2006) provides that on appeal:

(c) The warden's decision shall be one of the following:

1. Affirm the adjustment committee's decision and the sentence.

2. Modify all or a part of the adjustment committee's decision or sentence.

3. Reverse the adjustment committee's decision, in whole or in part.

4. Return the case to the adjustment committee for further consideration or to complete or correct the record.

See ¶ 50-52, infra.

¶ 111. As the majority opinion explains, the Warden's memorandum ordering the removal of the Decision's reference to a video can be interpreted in different ways. The Warden wrote that he could find "no substantiation that there was a video showing Mr. Jackson's involvement in this incident." The memorandum may mean that the Warden concluded the video failed to show that Jackson was involved, or that the video was irrelevant to the decision, even though the Adjustment Committee thought the video supported guilt, or that the Warden concluded that no video existed in the record. See majority op., ¶ 44 n. 17. Any interpretation raises troubling questions. The first two inferences result in the conclusion that the record before this court is not the same as the record before the Adjustment Committee. The third inference suggests, at best, sloppy record keeping, and at worst, that the Adjustment Committee made a determination of guilt without awareness of the evidence supporting that determination.

The Warden's memorandum states: "I can find no substantiation that there was video showing Mr. Jackson's involvement in this incident. . . . Therefore, I am remanding this back to the original hearing committee only for a correction of the record on form DOC-84 [the Decision of the Adjustment Committee] regarding physical evidence used for this hearing."

No one questions the Warden's motives in changing the Decision of the Adjustment Committee. The issue before the court is the Warden's authority and the effect of his act on the ability of the courts to perform certiorari review.

¶ 112. The record does not show who received the Warden's instructions and who acted on them. The record does show, however, that someone struck one reference to the video on the Adjustment Committee's Decision, but not a second reference. The initials next to the single strike-out appear to be "PZ," which might refer to Lt. Pamela Zank, a person who investigated the incident and was also a member of the Adjustment Committee. See Exhibit A.

¶ 113. When instructions are given in court to strike a matter from the record, the matter continues to be included in the record but shown as struck. The matter struck is just not considered by the decision maker. In the present case, every video was literally removed from the record.

¶ 114. Therefore, even if the Adjustment Committee, the Warden, or both saw a video, the court does not know what video or videos each viewed.

¶ 115. The State produced four video clips on remand of the matter to the circuit court, and these clips are now part of the record in the present case. One of these video clips was shown to this court at oral argument. The majority opinion relies on this video to conclude that it does not help Jackson (even though it is arguable that it impeaches the statements of the confidential informants).

¶ 116. How can the majority rely on a video when no one knows whether that video was the one that the Adjustment Committee or the Warden saw? Neither the Department of Corrections nor the State's attorney could attest to whether the videos presented to the circuit court on request of this court were the ones that the Adjustment Committee received. The conduct report states that videos from the New Lisbon Correctional Institution A Unit dayrooms, A Unit courtyard, and exterior cameras were used in investigating the riot. Neither the Department of Corrections nor the State's attorney could verify that the videos presented to the circuit court (and to this court) were the ones seen by the investigators, the Adjustment Committee, or the Warden after the riot.

The video clips that are now in the record seemingly depict two areas based on their electronic titles, New Lisbon Correctional Institution A Unit dayroom side A and side B. No clip is labeled as depicting the A Unit courtyard, or the view from any New Lisbon Correctional Institution exterior camera.

¶ 117. During oral argument the court questioned counsel for the State about how these four video clips came to the State's attention. The Assistant Attorney General responded that she asked the Department of Corrections for "all video evidence on the riots," and "this is what we got."

¶ 118. Thus, we are left with a record stating that the Adjustment Committee relied on videos that the Warden wanted stricken. The court can not be sure whether the videos now in our record were viewed by the Adjustment Committee or the Warden, or neither. The court has no reason to rely on any videos now included in the record. And so, this court does not have a record of the evidence that was before the Adjustment Committee.

¶ 119. The lack of a record of the evidence the Adjustment Committee viewed in determining guilt is a significant procedural defect in the present case. This is a certiorari review limited to the record of the Adjustment Committee. It is the duty of the Department of Corrections to maintain a proper record and forward it to the courts for review when review is requested. Because the court does not have a record of the evidence upon which the Adjustment Committee relied, I conclude that due process has been violated and Jackson must be accorded a new hearing that complies with constitutional and statutory due process requirements.

II

¶ 120. There are a number of other defects apparent in the record of this disciplinary proceeding. The cumulative effect of all the errors is that Jackson did not get a due process hearing that complied with constitutional and statutory due process requirements.

¶ 121. First, the Conduct Report on which the Adjustment Committee relied as evidence concluded, on the basis of the confidential informant statements, that Jackson met with the rioters "seconds before" the riot took place. Nothing in the statements of the confidential informants and nothing else in the record supports this temporal element.

¶ 122. Jackson argued as follows: "The video evidence shows that the confidential informant testimony that Jackson met with the rioters to `call' the riot `seconds' before it occurred is inaccurate. No other evidence supports the DOC's finding that Jackson in-cited the riot. . . ."

Reply Brief of Petitioner Darnell Jackson Regarding Outcome of Remand at 1, 18-19.

¶ 123. The Adjustment Committee concluded, after evaluating all of the evidence, that "the statements in the conduct report are correct." See Exhibit A, Disciplinary Hearing Reasons for Decision and Evidence Relied On. The confidential informant statements do not support the temporal conclusion in the conduct report. The video evidence presented to the circuit court does not support the temporal element that the Adjustment Committee concluded was correct. Under what evidence can reasonable minds conclude that the statements in the conduct report, and therefore the Adjustment Committee's conclusions, are correct?

¶ 124. Second, the Adjustment Committee limited the number of Jackson's witnesses to two, the number provided for in the regulations. It is within the discretion of a hearing entity to limit the witnesses. Here the evidence against Jackson was in the form of confidential informant statements. Although confidential informant statements are sufficient evidence in a disciplinary hearing, Jackson did not know who the informants were and could not cross-examine them. If the informants were fellow inmates, they may have been biased because they were the culprits themselves or they received favors for their statements. Under such circumstances it would seem that Jackson should have been given the benefit of additional witnesses in his favor, barring legitimate safety concerns (none of which were noted on the record).

Wis. Admin. Code § DOC 303.81(1) (Dec. 2006).

Jackson provided the names of two fellow inmates who would contradict the statements of the informants and a correctional officer who would testify that before the riots Jackson denied being in a gang. The reviewing staff decided that these witnesses would not be permitted to attend because Jackson "did not provide good cause to demonstrate additional witnesses could provide essential testimony."
Jackson did not make this argument before this court. He raised it in his administrative appeal."

¶ 125. Jackson argued in his record of witness testimony that the testimony he wished to submit made clear that the hallway meeting of which he was accused never occurred. The Adjustment Committee, without elaboration, denied his request, stating that Jackson "Did Not Provide Good Cause To Demonstrate Additional witnesses could Provide Essential Testimony" (capitalization in original). Jackson asserts that the Committee ignored this evidence.

Post-Remand Memorandum of Petitioner Darnell Jackson, June 18, 2010, at 6.

¶ 126. Third, inmates are entitled to an impartial Adjustment Committee. Constitutional due process so requires, as do the regulations.

Wolff, 418 U.S. at 571. Cf. In re Murchison, 349 U.S. 133, 136-37 (1955) ("[T]o perform its high function in the best way `justice must satisfy the appearance of justice.'. . . Having been a part of that [single judge-grand jury] process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.").

¶ 127. Jackson argued that "[t]he DOC violated its own regulations in this case when it permitted to Lt. Zank to both investigate and judge Jackson's alleged involvement in the riot" and "Lt. Zank's participation in both the investigation and the hearing raises due process concerns. I agree.

Brief and Appendix of Darnell Jackson at 15.

Id. at 16.

¶ 128. Lt. Zank served on the team that investigated the riot and was one of the members of the Adjustment Committee that found Jackson guilty The Department of Corrections regulations prohibit individuals "with a substantial involvement in an incident" from serving on the Adjustment Committee for a hearing on the subject of that incident. It is not clear in the' regulations whether "involvement in an incident" means involvement in the riot here or involvement in the investigation of the riot. We do not know whether Lt. Zank was involved in the riot. The record indicates she was involved in the investigation.

Wis. Admin. Code § DOC 303.82(2) (Dec. 2006): No person who has substantial involvement in an incident, which is the subject of a hearing, may serve on the committee for that hearing. Committee members shall determine the subject matter of the hearing in advance in order to allow replacement of committee members if necessary and thereby avoid the necessity of postponing the hearing.

¶ 129. In any event, ordinarily, an investigator or prosecutor does not serve on a hearing (decision making) committee, to avoid any question of the integrity of the hearing procedure or impartiality of the hearing examiners. Allowing an individual substantially involved in investigating a prison incident to sit in judgment of an inmate at a disciplinary proceeding involving that incident "may raise such doubts about the integrity of the hearing procedure and the impartiality of its participants so as to trigger due process considerations."

Redding v. Fairman, 717 F.2d 1105, 1113 (7th Cir. 1983). See also Whitford v. Boglino, 63 F.3d 527, 534 (7th Cir. 1995) ("If an officer is substantially involved in the investigation of the charges against an inmate, due process forbids that officer from serving on the adjustment committee."); Piggie v. Cotton, 342 F.3d 660, 667 (7th Cir. 2003) (due process forbids "officials who are directly or substantially involved in the factual events underlying the disciplinary charges, or the investigation thereof, from serving on the board hearing the charge").

¶ 130. Lt. Zank was an officer who interviewed Jackson after the riot. Jackson alleges that Lt. Zank requested that he waive his due process rights. Lt. Zank apparently was a leading member of the Adjustment Committee. She completed the Disciplinary Hearing Decision form, giving the reasons for the decision, including the evidence upon which the Committee relied. She appears to be the person who struck a reference to a video from the Decision on the instructions of the Warden.

¶ 131. I agree with the majority opinion that the record on Lt. Zank's involvement in the riot or the investigation before the Adjustment Committee was formed is sparse. But on the basis of the limited written record, the aura and aroma of substantial involvement in the investigation are present and raise due process concerns, regardless of the meaning of the phrase "substantial involvement in an incident" appearing in the regulations.

¶ 132. Fourth, nothing in the regulations gives the Warden authority to send the record back for correction of the Adjustment Committee's Decision after the Warden had previously affirmed the Adjustment Committee's Decision. I agree with Jackson, who asserts: "For certiorari to provide a legitimate avenue of independent judicial review, the DOC cannot `correct' the record after a prisoner petitions for review. Nor does due process permit the DOC to modify the record on which its decision was based. . . . Respondents [the State officials] offer no authority and none of which Jackson is aware supports the warden's decision to remove evidence considered by the disciplinary committee."

Reply Brief of Petitioner Darnell Jackson at 5, 7.

¶ 133. The regulations state that within 60 days of an inmate's appeal of an Adjustment Committee Decision to the Warden, the Warden may either affirm the Decision or return the Decision to the Adjustment Committee for correction, but may not do both. Wis. Admin. Code § DOC 303.76(7)(c) (Dec. 2006). The Warden's unilateral memorandum returning the record only for correction in preparation to transmit the record to the circuit court does not cite any regulation supporting his authority to remand the record to the Adjustment Committee after he affirmed the Adjustment Committee's Decision and the sentence.

The Warden cites to § DOC 303.76(6)(e) in his memorandum; however, that regulation relates to the Adjustment Committee's obligation to inform the inmate of the hearing decision. In contrast, the majority cites to § 303.16(7)(e). See majority op., 1 24 n. 10 (emphasis added). That regulation states as follows: "The warden may at any time review the conduct report and act on it unilaterally as if there were an appeal" (emphasis added). In directing the change to the reference to the video, the Warden was not reviewing the conduct report as authorized by § DOC 303.76(7)(e); the Warden was reviewing the Decision of the Adjustment Committee. Section DOC 303.76(7)(e) therefore does not apply in the present case and does not authorize the Warden's conduct.

¶ 134. In contrast, § DOC 303.76(7)(e) of the regulations authorizes the Warden to "review the conduct report and act on it unilaterally as if there were an appeal" (emphasis added). In directing the change to the reference to the video in the Adjustment Committee's Decision, the Warden was not reviewing and acting unilaterally on the conduct report as authorized by § DOC 303.76(7)(e); the Warden was reviewing and acting unilaterally on the Decision of the Adjustment Committee.

¶ 135. Each of these four defects taken alone may not constitute a violation of due process. However, these defects taken together, along with the missing video evidence, add up to a proceeding that does not comply with constitutional or statutory requirements.

¶ 136. In the present case, in which the Adjustment Committee must weigh the credibility of Jackson and his supporting witnesses against the credibility of confidential informant statements, the procedural defects are significant. The cumulative effect of the procedural errors undermines confidence in the Adjustment Committee's findings and Decision. The errors were prejudicial.

State v. Harris, 2008 WI 15, 1 110, 307 Wis. 2d 555, 745 N.W.2d 397 ("The cumulative effect of several errors may, in certain instances, undermine a reviewing court's confidence in the outcome of a proceeding.") (citing State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305; Alvarez v. Boyd, 225 P.3d 820, 824 (7th Cir. 2000); United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); United States v. Wallace, 848 F.2d 1464, 1472 (9th Cir. 1988)); State v. Thiel, 2003 WI 111, ¶ 60, 264 Wis. 2d 571, 665 N.W.2d 305 (determining that the cumulative effect of deficient assistance by counsel may in some instances establish prejudice).

Wisconsin Admin. Code § DOC 303.87 (Dec. 2006) provides: "If staff does not adhere to a procedural requirement under this chapter, the error is harmless if it does not substantially affect a finding of guilt or the inmate's ability to provide a defense."
Because the cumulative effect of the errors does affect a finding of guilt, the violations of the procedural requirements in this case are not harmless error.

¶ 137. On the record before this court, we do not know what evidence was before the Adjustment Committee, and with the videos gone, the court does not know the basis for the Adjustment Committee's Decision. Courts on certiorari review must be able to review the record upon which the Adjustment Committee relied or the court must remand the cause for rehearing. A reviewable record does not exist in the present case. On the basis of the procedural deficiencies in the record before the court, the court cannot decide that the Adjustment Committee's actions were not arbitrary, oppressive, or unreasonable and representative of its will and not its judgment. I conclude that Jackson's due process rights have been violated.

¶ 138. For the reasons set forth, I would reverse the decision of the court of appeals denying Jackson's writ of certiorari. I would remand the cause to the Department of Corrections For a rehearing. Accordingly, I dissent.

EXHIBIT A

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EXHIBIT B

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