Grisel v. Oregon State Penitentiary , 290 Or. 719 ( 1981 )

TANZER, J.

This is a prison disciplinary proceeding. The Court of Appeals affirmed the disciplinary order and we allowed review.

The proceeding was initiated by a misconduct report alleging that petitioner had stabbed one Smith at a specified time and place. The report stated:

'T received information from an informant (eye witness) whose identity must remain anonymous as disclosure would jeopardize his personal safety and whose information has proven reliable in the past that you stabed [sic] inmate Smith, K. 41573. The eye witness, informant, said 'I saw Grisel stab Smith.’ Inmate Smith received a puncture wound approximately 1/4" wide midway between navel and niple [sic] 1 1/2" left of center.”

Petitioner denied his guilt and requested that certain witnesses be questioned in the expectation that they would establish his alibi. They were questioned and did not establish the alibi. He was found guilty upon the strength of the informant’s statement contained in the misconduct report.

Petitioner’s sole complaint is that the statement "I saw Grisel stab Smith” is insufficient to support the finding because it is a "conclusory statement” in that it does not state how or where the stabbing took place and therefore cannot be compared to the other evidence in the case. Reliance upon conclusory statements is impermissible, he argues, because it is inconsistent with the Corrections Division rule which was adopted pursuant to the order of the United States District Court in Bartholomew v. Reed, 477 F Supp 223 (D Or 1979). In that case, the court held the previous rule of the Corrections Division to be invalid because, among other reasons, it allowed the disciplinary tribunal "to rely upon mere 'conclusory representations.’ ” 477 F Supp at 228. The current pertinent rule provides:

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

"(2) 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.” Administrative Order 19-1979 (Temp), VI(F)(l)(e).

The statement "I saw Grisel stab Smith” complies with requirement of the rule that "the statement of the informant * * * shall be revealed to the Hearings Officer.” The statement is not conclusory; it is a statement of directly observed fact. The failure of the statement to refer additionally to time and place goes to its completeness, but it does not render the statement conclusory. Therefore, petitioner’s contention fails.

In the Court of Appeals, Buttler, J., dissented on the ground that the misconduct report failed to comply with subsection (1) of the rule because the informant’s statement did not include detail as to the location of the informant at the time of his observation. Grisel v. OSP, 47 Or App 673 at 677, 614 P2d 1231 (1980). In this respect, the petition for review is similar to the dissent in the Court of Appeals. Judge Buttler also would have held that the statement that the informant’s information has proven reliable in the past is an insufficient showing of reliability to satisfy subsection (2), ibid, at 678, and the dissent in this court takes the same view, although that issue is not specifically raised in the petition for review.

This is not a constitutional case, or a statutory case. The question is whether the showing satisfies the Corrections Division rule. In the context of prison discipline, 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. Particularly in light of the difficulties involved in protecting informants against retribution in a prison setting, we cannot hold that the agency’s application of its rule was unlawful.

Finally, petitioner implies that the application of the new rule in this case does not satisfy the ruling of the United States District Court in Bartholomew v. Reed, supra. We defer to that court to determine whether the rule and order complies with its order.

Affirmed.