JOHN REAL vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, WALPOLE.

LIACOS, J. This is one of four cases decided today [Note 1] involving the constitutionality of procedures at State prison disciplinary hearings. Plaintiff John Real brought two separate pro se petitions for a writ of habeas corpus against the defendant. [Note 2] The first action sought the plaintiff's release from the Institutional Disciplinary Unit (I.D.U., or Block 9) [Note 3] at the Massachusetts Correctional Institution, Walpole (M.C.I., Walpole), alleging that confinement to the I.D.U. while a prisoner is awaiting action before the Department Segregation Unit Board (D.S.U. board) pursuant to a disciplinary sanction of reclassification is unconstitutional and that the conditions of the confinement in the I.D.U. violated the First and Eighth Amendments to the United States Constitution. In the second action, the plaintiff sought the removal of sanctions imposed by the disciplinary board (board) alleging

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that his constitutional right of due process [Note 4] was violated by the procedures in which the board denied his request for certain witnesses at a disciplinary hearing.

Both actions were heard together on the merits before a judge of the Superior Court on May 25, 1982. [Note 5] The trial judge treated both petitions as complaints for declaratory judgment. The judge implicitly found that the reason for the plaintiff's placement in I.D.U. after the hearing was his alleged misconduct. In reviewing the procedures followed at the disciplinary hearing, the judge concluded that the plaintiff's due process rights had been violated by the board's denial of the plaintiff's request for witnesses. Thus, the judge concluded the plaintiff's subsequent confinement to the I.D.U. to be invalid. The trial judge ordered the plaintiff returned to the general prison population. He also ruled the sanction comprising the loss of 150 days of statutory good time credit resulting from the disciplinary hearing to be invalid, and he ordered the respondent to credit the petitioner with the 150 days' good time.

The defendant sought a stay of the judgments pending appeal of both orders. The Appeals Court concluded that only the motion for a stay from the judgment ordering the return of the prisoner to the general prison population to be before it. A stay pending appeal from the order returning the prisoner to the general prison population was granted. We transferred the case here on our own motion.

The defendant argues that the trial judge may not construe a petition for writ of habeas corpus as a complaint for declaratory judgment without proper notice to the adverse party. Agreeing that Wolff v. McDonnell, 418 U.S. 539 (1974), sets the minimum due process procedures for the disciplinary proceeding under Federal law, the defendant also contends that the board did not violate the mandate of

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Wolff. Finally, the defendant claims that the placement of the plaintiff in the I.D.U. was a purely administrative placement not infringing any liberty interest of the plaintiff.

We conclude that this action properly was treated by the judge as one seeking declaratory relief. We also conclude, since denial of the plaintiff's request for witnesses is so totally without support in the administrative record, that the judge was warranted in finding that the proceedings violated the due process clause of the Fourteenth Amendment to the United States Constitution.

The facts are as follows. The plaintiff is an inmate lawfully in the custody and care of the Department of Correction. [Note 6] On December 24, 1981, Correctional Officer Baleyko reported the plaintiff for disciplinary violations at M.C.I., Walpole. Within the same day the plaintiff was locked in his cell, and subsequently transferred to a segregation unit at M.C.I., Norfolk. On December 31, 1981, the plaintiff received written notice of a disciplinary hearing scheduled before the disciplinary board. It is unclear whether the plaintiff received an actual copy of the disciplinary report. The judge found, however, that the notice informed the plaintiff that he was charged with disobeying an order in violation of 103 Code Mass. Regs. Section 430.22 (1) (1978), with conduct which disrupts or interferes with the security or orderly running of the institution in violation of 103 Code Mass. Regs. Section 430.22 (8) (1978) and with participating in or encouraging a riot, work stoppage, hostage taking, or unauthorized group demonstration in violation of 103 Code

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Mass. Regs. Section 430.22 (14) (1978). On receipt of the notice, the plaintiff requested representation by counsel and requested the presence of the reporting officer and two inmates as witnesses in his defense.

At the hearing before the board on February 10, 1982, the plaintiff appeared with counsel and pleaded not guilty. [Note 7] The board denied the plaintiff's request for the two inmate witnesses. Real was found guilty of the offenses alleged in the disciplinary report. The board imposed sanctions of thirty days' isolation, forfeiture of 200 days of good time, and a referral to the Departmental Segregation Unit (D.S.U., also known as Block 10, at M.C.I., Walpole).

The plaintiff appealed the guilty finding and the recommended sanctions to the superintendent, who reduced the sanctions to twenty-five days of isolation and forfeiture of 150 days of good time credit. [Note 8] The superintendent also affirmed the recommendation of transfer to the D.S.U. The hearing was held at M.C.I., Walpole. Real was brought from M.C.I., Norfolk, to M.C.I., Walpole, for the hearing. Immediately after the hearing, he was placed in the I.D.U. at M.C.I., Walpole, where he presently remains.

I. Declaratory relief. Relying on Pina v. Superintendent, Mass. Correctional Inst., Walpole, 376 Mass. 659 (1978), the trial judge chose to treat the plaintiff's petitions for habeas corpus as a claim for declaratory judgment. Pina,

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supra at 666. See Nelson v. Commissioner of Correction, ante 379, 386-388 (1983); Hennessy v. Superintendent, Mass. Correctional Inst., Framingham, 386 Mass. 848, 850-852 (1982). The defendant states that, while the judge may construe a petition for writ of habeas corpus as a complaint for declaratory judgment, such discretionary power may be exercised only with proper notice to the adverse party to prevent a manifest injustice.

The defendant makes no argument, and cites no authority to support his statement. This portion of the defendant's brief fails to qualify as "argument" within Rule 16 of the Massachusetts Rules of Appellate Procedure, as amended through 386 Mass. 1247 (1982). Accordingly, we do not address the defendant's contention. The plaintiff, challenging the constitutionality of the regulations pertaining to the right to call witnesses as set forth in 103 Code Mass. Regs. Section 430.14 (6) (1978), has properly stated a claim for declaratory relief. [Note 9] See Nelson v. Commissioner of Correction, supra at 387-388; Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 845, 850-851 (1977); Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 296-297 (1975).

II. Federal due process requirements. Where the decision of a disciplinary hearing subjects an inmate to a loss of good time credits, he is entitled to the minimal due process requirements mandated in Wolff v. McDonnell, supra. See Nelson v. Commissioner of Correction, supra at 388-390. Among these requirements is the right "to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff, supra at 566.

In recognizing this right, however, the United States Supreme Court acknowledged that "[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits." Wolff, supra at 566. The Supreme Court held that officials may refuse to call witnesses whom they

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determine are irrelevant, unnecessary, or hazardous, and it went on to say that it would be "useful," although not required, for reasons for denial to be stated. Wolff, supra. In a later case, the Supreme Court indicated that it was referring in Wolff to a written statement of reasons but that such a written statement was not required. Baxter v. Palmigiano, 425 U.S. 308, 322 (1976). Left unresolved is the question whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify. It is this question that the facts of the instant case present to us. No such explanation is required by 103 Code Mass. Regs. Section 430.14 (1978), reprinted in the margin, involving witnesses requested by the inmate for disciplinary hearings. [Note 10] If we

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conclude that due process requires some explanation for the denial of witnesses, the State regulations will not be constitutional.

The right to call witnesses is limited under Federal law. See Wolff, supra at 566. See also Baxter, supra at 321. Broad discretion is given to prison administrators out of necessity because "[t]he operation of a correctional institution is at best an extraordinarily difficult undertaking." Wolff, supra at 566. Such broad discretion, however, is not limitless. See Cardaropoli v. Norton, 523 F.2d 990, 998 (2d Cir. 1975). The purpose of the due process clause of the Fourteenth Amendment is to protect the individual against arbitrary governmental action. Wolff, supra at 558. Clearly, "[d]ue process does not permit the automatic exclusion of the right to call witnesses." Hayes v. Walker, 555 F.2d 625, 629 (7th Cir.), cert. denied, 434 U.S. 959 (1977).

The right to call witnesses is an important right to an accused "who obviously faces a severe credibility problem when trying to disprove the charges of a prison guard." Wolff, supra at 583 (Marshall, J., dissenting, with whom Brennan, J., joins). To hold that the board need not state its reasons for refusal would render meaningless the prisoner's limited right to call witnesses. See Hurney v. Carver, 602 F.2d 993, 996 (1st Cir. 1979) (Bownes, J., dissenting); Hayes, supra at 630. We find persuasive the requirement of the United States Court of Appeals for the Seventh Circuit that there must be some support in the administrative record to justify a decision not to call witnesses, in order to ensure

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that the hearing is not a charade. See Hayes v. Thompson, 637 F.2d 483, 487-489 (7th Cir. 1980).

On the record presented before us, there is no explanation for the denial of the inmate witnesses requested by Real. The administrative record is barren. We conclude that the failure of the regulations to require some support in the record for the denial of the plaintiff's witnesses abridged his Federal due process rights. The trial judge properly concluded that the sanctions resulting from a constitutionally flawed disciplinary hearing were invalid, and correctly ordered the return of Real's good time credits.

The defendant, however, contends that the return of Real to the general prison population was incorrect because the plaintiff's placement in the I.D.U. was made for administrative reasons. We recognize that the United States Supreme Court has held that "administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration" and it does not involve an interest independently protected by the due process clause. Hewitt v. Helms, 459 U.S. 460, 468 (1983). See also Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, post 409 (1983). We do not reach the question whether the statutes and regulations of the Commonwealth create a protected liberty interest respecting administrative segregation because the trial judge implicitly found that the segregation was for disciplinary reasons after the investigation had been completed and determined by the hearing. [Note 11]

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As we have noted today, regardless of the logic of the trial judge's ruling, even if transfers are the direct consequence of a tainted disciplinary hearing, they do not implicate or infringe a State-created liberty interest protected by the due process clause of the Fourteenth Amendment. See Nelson v. Commissioner of Correction, supra at 397. The trial judge improperly ordered the return of the plaintiff to the general prison population.

In his findings and rulings on the plaintiff's petition for a writ of habeas corpus, the trial judge states: "I treat the petitioner's writ of habeas corpus as a claim for declaratory relief." As such, he should have declared the rights of the parties and ordered relief. Here, however, the judge ordered a judgment be entered requiring the return of the plaintiff to the general prison population. Subsequently, two judgments were entered, one ordering the restoration of the plaintiff's good time credits and the other ordering his release to the general prison population. To the extent that the form of relief is wrong, we reverse the judgments and remand the case for an entry of judgment declaring the rights of the plaintiff and ordering relief consistent with the principles set forth in our opinion. The defendant is to be given, on request, the right to convene a disciplinary board to conduct a new hearing on the same terms and conditions we describe in Nelson v. Commissioner of Correction, supra at 397 n.21.

So ordered.