1. “Findings
of fact made by a trial court in a . . . habeas corpus proceeding
will not be set aside or reversed on appeal by this Court unless such findings
are clearly wrong.” Syllabus point 1, in part, State ex rel. Postelwaite
v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975).
2. “Notice
of alleged disciplinary violations must be provided to the charged inmate . . .
and should be stated with such specificity as to permit the inmate to understand
the nature of the charge(s) against him/her.” Syllabus point 9, in part, State
ex rel. Williams v. Department of Military Affairs and Public Safety, Division
of Corrections, 212 W. Va. 407, 573 S.E.2d 1 (2002).
3. “When
a statute [or rule] is clear and unambiguous and the [drafter's] intent is plain,
the statute [or rule] should not be interpreted by the courts, and in such case
it is the duty of the courts not to construe but to apply the statute [or rule].” Syllabus
point 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va.
137, 107 S.E.2d 353 (1959).
Per Curiam:
Jackie L. Snider (hereinafter referred
to as “Mr. Snider”), appellant/petitioner below, has appealed from
an order of the Circuit Court of Pleasants County dismissing his petition for
a writ of habeas corpus. (See
footnote 1) In this appeal, Mr. Snider seeks to have this Court
vacate a prison disciplinary conviction and sentence he received for grabbing
the breast of a female nurse at the St. Marys Correctional Center. (See
footnote 2) After a careful review of the record and pertinent
authorities, we affirm.
The
magistrate's decision was based upon the testimony of the nurse in support of
her report. The evidence shows that [Mr. Snider] attempted to begin a discussion
of a sexual nature, told the nurse to go with him where no one would know and
then grabbed her breast. This is certainly some evidence that [Mr. Snider] attempted
to force another into a sexual act.
Subsequent to the circuit court's denial of Mr. Snider's petition, he filed
this appeal.
Many
prison rulebooks contain ambiguities. Correctional officers may believe that
publications of this sort provide sufficient guides for ascertaining violations,
but if some of their provisions had been incorporated in statutes or local ordinances,
courts almost certainly would have struck them down as constitutionally vague
and indefinite, i.e., as not identifying clearly enough for those required
to abide by them the limits of permitted and unlawful conduct.
2 Michael B. Mushlin, Rights of Prisoners § 9:2, at 105 (2002)
(quoting ABA Standards for Criminal Justice, Standard 23-3.1 (1986)). In sum,
for purposes of due process “'[a] hearing is not “meaningful” if
a prisoner is given inadequate information about the basis of the charges against
him.'” Williams, 212 W. Va. at 418, 573 S.E.2d at 12 (quoting Austin
v. Wilkinson, 189 F. Supp. 2d 719, 747 (N.D. Ohio 2002)).
Pursuant to W. Va. Code § 28-5-27(f)
(1984) (Repl. Vol. 2004), the Commissioner of the Division of Corrections is
authorized to
promulgate separate disciplinary rules for each institution under his control in which adult felons are incarcerated, which rules shall describe acts which inmates are prohibited from committing, procedures for charging individual inmates for violation of such rules and for determining the guilt or innocence of inmates charged with such violations and the sanctions which may be imposed for such violations.
In carrying out this authority, the Commissioner adopted Policy Directive No.
325.00, which outlines, among other things, prohibited conduct by inmates.
The offense for which Mr. Snider was charged and of which he was convicted,
Rule 1.03, is set out in the Policy Directive. As we previously indicated,
Rule 1.03 provides that “[a]n inmate shall not physically force, or attempt
to force another person to submit to any sexual act, nor shall they threaten
another person with harm in order to compel them to a sexual act.”
There is no question in this case that Mr.
Snider was informed that he was charged with violating Rule 1.03. The issue Mr.
Snider brings is that use of the word “rape” in the title of Rule 1.03
meant that he could not be convicted without evidence that he “penetrated” the
victim. We disagree. (See
footnote 6)
In an effort to not elevate form over substance,
we must recognize that it is the content of what is contained under a title that
is critical in most instances, not the title itself.
“The title to [a rule] is simply an index of what is contained therein[.]” Casto
v. Upshur County High Sch. Bd., 94 W. Va. 513, 520, 119 S.E. 470, 473
(1923). Our task is not to be sidetracked by the rule's title. Instead, our focus
must be upon the critical element of what was set out under that title. In doing
so, our task is twofold. First, we must determine whether the content of Rule
1.03 adequately informed Mr. Snider of conduct that was prohibited. See Chatin
v. Coombe, 186 F.3d 82, 87-88 (2d Cir. 1999) (prison rule barring unauthorized
religious services and speeches failed to provide sufficiently explicit standards
for those who applied it); Arey v. Robinson, 819 F. Supp. 478, 490
(D. Md. 1992) (prison regulation requiring inmate to return medication to
prison pharmacy within 24 hours of expiration date was unconstitutionally vague;
regulation did not apprise inmate of ordinary intelligence that failure to return
medication after stop date constituted possession of unauthorized medication); Landman
v. Royster, 333 F. Supp. 621, 656 (E.D. Va. 1971) (prison rule
prohibiting agitation, misbehavior and misconduct gives no fair warning that
certain conduct is punishable). Second, we must determine whether “some
evidence” was presented to establish that Mr. Snider engaged in conduct
that was prohibited by the rule. See Superintendent, Massachusetts
Corr. Inst., Walpole v. Hill, 472 U.S. 445, 457, 105 S. Ct. 2768, 2775,
86 L. Ed. 2d 356 (1985) (“The Federal Constitution does not require
evidence that logically precludes any conclusion but the one reached by the disciplinary
board. Instead, due process in this context requires only that there be some
evidence to support the findings made in the disciplinary hearing.” (emphasis
added)); 2 Mushlin, Rights of
Prisoners, § 9:26, p. 242-43 (“A [prison] disciplinary proceeding
is not a criminal trial, and the traditional criminal standard of proof beyond
a reasonable doubt is not necessary to support a finding of a rule infraction.”).
“It is generally accepted that '[s]tatutes
and administrative regulations are governed by the same rules of construction.'” Vance
v. West Virginia Bureau of Employment Programs/Elkins Job Serv., ___ W. Va.
___, ___, 619 S.E.2d 133, 136 (2005) (quoting Farm Sanctuary, Inc. v. Department
of Food & Agric., 63 Cal. App. 4th 495, 505, 74 Cal. Rptr. 2d
75 (1998)). Under a fundamental rule of statutory construction, “[w]hen
a statute [or rule] is clear and unambiguous and the [drafter's] intent is plain,
the statute [or rule] should not be interpreted by the courts, and in such case
it is the duty of the courts not to construe but to apply the statute [or rule].” Syl.
pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va.
137, 107 S.E.2d 353 (1959).
In examining the content of Rule 1.03 we
discern three prohibitions. First, the rule states that an inmate shall not physically
force another person to submit to any sexual act. This provision contemplates
an actual consummation of the prohibited conduct. Second, the rule prohibits
an inmate from attempting to physically force another person to submit to any
sexual act. This provision does not require consummation of a sexual act_only
the use of force in attempting the same. Third, the rule states that an inmate
shall not threaten
another person with harm in order to compel him/her to a sexual act. This provision
would appear to be violated through consummation of a sexual act caused by
a threat of harm. In sum, we believe that Rule 1.03 “'gives the person
of ordinary intelligence a reasonable opportunity to know what is prohibited[.]'” Chatin,
186 F.3d at 87 (quoting United States v. Strauss, 999 F.2d 692, 697
(2d Cir. 1993)). See also Witherspoon v. LeFevre, 440 N.Y.S.2d
375, 376 (1981) (“Although the definition of disturbance is inartfully
stated, we conclude that it gives all inmates the requisite notice that acts
tending to threaten the security and order of the facility are prohibited.”).
We must now assess whether “some evidence” was
presented to show that Mr. Snider engaged in conduct prohibited by Rule 1.03.
In performing this task, the United States Supreme Court has held that “[a]scertaining
whether this standard is satisfied does not require examination of the entire
record, independent assessment of the credibility of witnesses, or weighing of
the evidence. Instead, the relevant question is whether there is any evidence
in the record that could support the conclusion reached by the disciplinary board.” Walpole,
472 U.S. at 455-56, 105 S. Ct. at 2774, 86 L. Ed. 2d 356. From our review
of the record, we conclude that the conduct engaged in by Mr. Snider falls squarely
within the second prohibition of Rule 1.03. That is, the only evidence presented
at the hearing established that after Mr. Snider spoke to the nurse in extremely
vulgar sexual language, including asking her to engage in sex, he attempted to
physically force the nurse to engage
in a sexual act when he grabbed her breast. This evidence was sufficient to
find that Mr. Snider violated Rule 1.03.