State ex rel. Wis. Dep’t of Corrs., Div. of Cmty. Corrs. v. Hayes, 2023AP1140, petition for review of a per curiam court of appeals decision, granted 11/12/24; case activity (including briefs)
The Division of Hearings and Appeals decided not to revoke Sellers’s probation. DOC, on writ of certiorari to the circuit court, prevailed, and DHA appealed. On appeal, DHA and Sellers asked the COA to affirm DHA’s original decision not to revoke Sellers’s probation. The COA agreed with DHA and Sellers, reversing the circuit court’s order and affirming DHA’s decision not to revoke Sellers’s probation. DOC petitioned for review.
Sellers was on probation for a drug conviction. DOC attempted to revoke Sellers, alleging five violations of the terms of his probation, including sexual assault. At the revocation hearing, DOC did not call the alleged victim, but presented testimony that she could not “100% ID her assailant.” DNA from the sexual assault kit was consistent with Sellers, but also “could also match one in every 278 African Americans.” Sellers’s counsel asked the ALJ to take judicial notice that, based on census data, there would be 289 African Americans in Milwaukee who would also match the DNA profile. The remaining evidence also suffered from identification issues and Sellers denied the allegations. The ALJ revoked Sellers, and he appealed to DHA. DHA reversed the revocation decision on the basis that DOC presented no non-hearsay account of the alleged victim’s allegations, which violated Sellers’s right to confrontation.
The standard of review requires the COA to review DHA’s decision, deferring to DHA’s determinations. Ultimately, the COA concluded that it was not unreasonable, based on the evidence in the record, to conclude that the alleged victim’s testimony was necessary for DOC to prove all the elements of the alleged probation violations.
DOC’s petition presents three issues for review:
1. Even if a sexual assault victim’s out-of-court statements are found inadmissible, must the agency in a revocation proceeding still consider whether other unobjected-to, non-hearsay evidence supports a finding of the probation violations?
2. Does a probationer’s conditional right to confront the victim under Morrissey v. Brewer, 408 U.S. 471, 487, 489–90 (1972), allow an agency to consider out-of-court statements by a sexual assault victim?
3. Where an agency commits an error of law about its ability to consider certain evidence and thus fails to consider it, does a reviewing court properly ignore that error and simply consider the remaining evidence under certiorari review?
DOC’s first issue, which it frames as an argument that “review is warranted to develop, clarify, and harmonize the law about whether an agency must consider other probative, non-hearsay evidence even if it determines the sexual assault victim’s out-of-court statements cannot be considered” seems to be a thinly veiled complaint that DHA should have determined that DOC met the preponderance of the evidence standard even without the hearsay.
Next, DOC argues that hearsay should be admissible at revocation hearings because individuals on supervision are not entitled to the “full panoply of rights” due to criminal defendants. DOC then claims that Sellers got the benefit of an stricter rule than would be applied in a criminal case because DHA did not consider whether any of the hearsay exceptions applied to the alleged victim’s statements.
Under Morrissey, the “minimum requirements of due process” is “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Given the PFR, it seems that DOC wants the “good cause” exception to the accused’s confrontation right to apply to all sexual assault allegations in.
Last, DOC again claims that error correction is needed because the COA ruled against it. Despite the highly deferential standard on appeal (“whether the evidence was such that DHA might reasonably make the decision in question”), DOC believes the COA should have weighed the evidence differently and concluded that DHA’s decision was unreasonable.
