Shumway v. Oregon State Peniten., Corr. Div. , 294 Or. 462 ( 1983 )

PETERSON, J.

Petitioner, an inmate of the Oregon State Penitentiary, appealed a disciplinary order on two grounds, failure of the disciplinary committee to conduct an investigation, and violation of an administrative rule which requires the submission of information upon which the hearings officer can determine the reliability of an unidentified informant on whose uncorroborated report the order rests. The Court of Appeals affirmed without opinion, and we allowed review to examine the application of the rule. We reverse the Court of Appeals and remand the case to the agency.

The administrative rule in question is addressed to the situation when a witness to a prison disciplinary violation is another prisoner who cannot safely testify or even be identified at a disciplinary hearing. The rule was designed to approximate normal adjudicatory due process as closely as consistent with this special risk of the prison setting, in response to the United States District Court’s decision in Bartholomew v. Reed, 477 F Supp 223, 227-28 (D Or 1979) modified on other grounds sub nom Bartholomew v. Watson, 665 F2d 915 (9th Cir 1982). The rule therefore requires the hearings officer to decide the reliability of an unidentified informant. OAR 291-105-041(5) provides:

“(5) The evidence considered by the Hearings Officer will be of such credibility as would be considered by reasonable persons in the conduct of their affairs;

“(a) When unidentified informant testimony is presented to the Hearings Officer, the identity of the informant or the verbatim statement of the informant, or both shall be revealed to the Hearings Officer.

“(b) Information must be submitted to the Hearings Officer upon which the Hearings Officer can find that the informant is reliable in the case at issue.”

Subsection (5) states two separate requirements, both of which must be met. Even when the identity of the informant or the informant’s verbatim statement is revealed to the hearings officer, as required by paragraph (a), paragraph (b) requires that information also must be submitted to the hearings officer from which that officer can find that the informant is reliable in the case at issue. The finding of reliability must be made by the hearings officer, not by the charging officer; it must relate to the “case at issue”; and it must have a sufficient evidentiary basis in the information submitted to the hearings officer.

In this case, the “verbatim statement of the informant” was quoted in the misconduct report submitted to the hearings officer. The informant was not identified. The disputed issue concerns compliance with paragraph (b) of the rule, the adequacy of the information on which the hearings officer could determine the reliability of the informant.

The total information submitted in the misconduct report read as follows:

“On 12-5-81 at about 12:15 pm an informant who has previously proven to be reliable told me ‘I saw Shumway spit on (William) Jackson and heard him threaten to firebomb Jackson.’ * * *.

“I can not reveal the identity of the informant as this would place him in serious danger of retaliation from other inmates.”

Shumway was charged with violation of prison rules against assault, attempted assault, and disrespect to another. The hearings officer and the Disciplinary Committee recommended dismissal of the first two charges and a sanction of 13 days in segregation on the last charge. The prison superintendent increased the punishment to three months in segregation.

The record shows no information on which the hearings officer could decide the reliability of the unnamed informant other than the inclusion of the subordinate clause “who has previously proven to be reliable” in the sentence quoted above from the misconduct report. That brief clause in the report is not a sufficient basis for an independent finding by the hearings officer. The hearings officer made no further inquiry into the informant’s past or present reliability. She had no reason to know how the informant had been found reliable in the past, by whom, concerning what subject matter, or by what verification of the truth of his prior statements. Nor was there in this case any corroboration of the informant’s statement by other consistent evidence, as occurred, for instance, in Hartman v. OSP, 50 Or App 419, 623 P2d 681 (1981).

The mere inclusion of the quoted clause in the charging officer’s report is not a sufficient basis for an independent finding by the hearings officer. If it were, this obviously would reduce the requirement to mere routine in drafting misconduct reports. In effect, such a practice delegates the determination of an informant’s reliability to the charging officer. That is contrary to the rule, which requires the finding to be made independently by a quasi-judicial hearings officer.

This court has stated that “a showing that the prison officer knows that the information of the informant has proved reliable in the past is some evidence from which the hearings officer can find reliability.” Grisel v. OSP, 290 Or 719, 722, 625 P2d 651, cert den 454 US 846, 102 S Ct 164, 70 L Ed 2d 134 (1981). The court said that such a “showing” is “some evidence.” It did not say that a mere assertion in the misconduct report was sufficient. The hearings officer must have something upon which to decide. Also in Grisel the informant’s reported statement may have been corroborated by the character of the victim’s wounds. Here, no showing concerning the informant’s past reliability and no corroborative facts appear in the record to support the hearings officer’s finding as to the informant’s reliability in the case at issue.¹ We hold that some evidence must be presented other than the statement in the report that “the informant has previously proven to be reliable” in order for the hearings officer to “find that the informant is reliable in the case at issue.” This issue was not argued by the parties in Grisel. To the extent that Grisel, on its facts, is inconsistent, its holding is disapproved.

Defendant also contends that the Disciplinary Committee failed to follow another rule which requires it to conduct an investigation upon an inmate’s request.² Respondent argues that defendant did not clearly make such a request. Whether what defendant said at the hearing should have been understood as a request for an investigation could be a matter of reasonable disagreement, in the light of the uneven articulateness of prisoners not represented by counsel. Since the first ground discussed above requires a remand to the Disciplinary Committee in any event, we need not decide the issue of the request for an investigation, which can be renewed before the committee.

The decision of the Court of Appeals is reversed. Remanded to the agency.

1 The hearings officer’s finding refers to the informant as an “eyewitness,” but the assumption that he was an eyewitness rests only upon the statement of the very informant whose reliability is at issue. The finding mixes the question whether the informant deserves to be believed with the question whether, if believed, he was in a position to give reliable information.

The concurring opinion refers to the confusion which arises from the use of the terms “evidence * * * of such credibility” and “informant is reliable” which appear in OAR 291-105-041(5). We note that the rule which preceded OAR 291-105-041(5) and which was involved in Bartholomew v. Reed, 477 F Supp 223 (D Or 1979), modified on other grounds sub nom Bartholomew v. Watson, 665 F2d 915 (9th Cir 1982), required that the record “contain information from which the disciplinary committee can reasonably conclude that the informant was credible and his statement reliable. ” (Emphasis added.) 477 F Supp at 227-28. The court held that “[i]t is especially important that the factfinders be presented with complete information on which to base their assessment of the informant’s testimony. In order to properly consider the weight to be given to the testimony of informants, normally their identity or the exact nature of the information they have furnished, or both, ought to be revealed to the disciplinary committee. * * *” 477 F Supp at 228. A federal Court of Appeals has held that due process requires that an unidentified informant’s reliability be established by specific, nonconclusory facts presented to the prison disciplinary tribunal. Helms v. Hewitt, 655 F2d 487, 502 (3d Cir 1981), cert granted 455 US 999, 102 S Ct 1629, 71 L Ed 2d 865 (1982).

OAR 291-105-041(5) has two parts, parts (5)(a) and (5)(b). Although compliance with (5) (a) might in some case also satisfy the requirements of (5) (b), the mere statement that the informant “has previously proven to be reliable” is, by itself, insufficient to satisfy (5)(b).

2 OAR 291-105-058:

“In formal hearings, the inmate has a right to request that an investigation be conducted. A designee of the Hearings Officer shall conduct the investigation.

“(1) An investigation shall be conducted upon the inmate’s request if an investigation will assist in the resolution of the disciplinary proceedings and the information sought is within the ability of the facility to procure.

“(2) The Disciplinary Adjudicator or Hearings Officer may order an investigation on their own motion.

“(3) The Disciplinary Adjudicator or Hearings Officer shall allow the inmate access to the results of the investigation unless disclosure of the investigative results would constitute a threat to the safety and security of the Corrections Division facility. The reason(s) for nondisclosure shall be made a part of the record.”