## Facts

- Wisconsin sentenced seven inmates who were transferred under contract to a privately operated prison in Whiteville, Tennessee.
- A riot and hostage incident occurred at the Whiteville facility on November 30, 1999.
- The inmates were charged with major disciplinary violations for alleged participation in the incident.
- A disciplinary hearing occurred on December 9, 1999, before a hearing examiner who had personally witnessed and been involved in the riot/hostage event.
- The inmates were found guilty and sanctioned, including disciplinary segregation.
- DOC later transferred the inmates to Wisconsin’s Supermax facility and placed them in administrative confinement; those decisions relied in part on the Whiteville disciplinary findings.
- The inmates’ administrative appeal to the Whiteville warden was denied; DOC took the position that Wisconsin administrative review was unavailable to Whiteville inmates; Tennessee courts declined review for lack of jurisdiction.
- The inmates sought Wisconsin certiorari review challenging the disciplinary hearing and related confinement decisions; the circuit court granted relief and ordered expungement and new confinement review without reliance on the tainted findings.
- DOC officials appealed.

## Issues

1. Whether Wisconsin circuit courts may exercise common-law certiorari to review major disciplinary proceedings affecting Wisconsin-sentenced inmates housed in an out-of-state private facility when no other forum provides judicial review.
2. Whether due process was violated where the disciplinary hearing examiner had personally observed and been involved in the underlying incident, contrary to DOC policy requiring an impartial decision-maker.
3. Whether expungement of the disciplinary findings and restrictions on future reliance on those findings were an appropriate remedy.

## Decision

- The Wisconsin Court of Appeals affirmed the circuit court’s order.
- Wisconsin courts had jurisdiction and competency to provide certiorari review because the inmates remained Wisconsin prisoners and otherwise lacked a judicial forum.
- The disciplinary hearing violated due process because the examiner’s participation in the incident created an unacceptable risk of bias and contravened DOC disqualification policy.
- The remedy ordering expungement of the December 9, 1999 disciplinary findings and prohibiting reliance on those tainted findings in related status decisions was upheld.
- DOC could conduct new administrative confinement review proceedings, and could consider the alleged riot conduct only if established without reliance on the invalid disciplinary findings and with required procedural protections.

## Legal Principles

- A sentencing state retains judicial oversight, via certiorari, over major disciplinary actions affecting its prisoners even when they are housed out of state under a DOC contract, particularly where no other state provides judicial review.
- Due process in prison disciplinary matters requires an impartial decision-maker; a hearing officer who personally observed or participated in the incident at issue is disqualified, and proceeding anyway violates due process.
- When a disciplinary proceeding is fundamentally tainted by bias and has collateral consequences, courts may order expungement of the disciplinary record and bar reliance on the tainted findings, while permitting future proceedings based on independently proven facts and proper procedures.

## Conclusion

The court held that Wisconsin courts could review, by certiorari, serious disciplinary proceedings imposed on Wisconsin inmates housed at an out-of-state private prison, and that a riot-related conviction entered after a hearing before an involved witness-officer violated due process, justifying expungement and limiting DOC’s use of the tainted findings in later confinement determinations.


State ex rel. Curtis v. Litscher, 256 Wis. 2d 787, 650 N.W.2d 43 (Wis. Ct. App. 2002)