In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2425

Phil White,

Petitioner-Appellant,

v.

Indiana Parole Board,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99cv0633S--Allen Sharp, Judge.

Argued June 7, 2001--Decided September 26, 2001



  Before Coffey, Easterbrook, and Rovner,
Circuit Judges.

  Easterbrook, Circuit Judge. While
confined in the Marion County Jail, Phil
White was accused of drug trafficking
with the aid of Yvonne Davis, a prison
employee, and Shaquilla Harrison, Davis’s
daughter (and the mother of White’s
child). The prison’s Conduct Adjustment
Board stripped White of 120 days’ good-
time credit; it also reduced his credit-
earning classification. White took two
administrative appeals, first to the
warden and then to a tribunal maintained
by the Indiana Department of Corrections.
Both the warden and the Department
sustained the Board’s decision, although
the Department increased White’s credit-
earning rate. Indiana does not provide
judicial review of such actions, so
White’s next stop was federal court,
where he contends in this action under 28
U.S.C. sec.2254 that the Board did not
afford him due process of law. See
Edwards v. Balisok, 520 U.S. 641 (1997).
White complains that the officer who
investigated and filed the trafficking
charge conferred with the Board’s members
after the close of evidence, and that he
did not receive a copy of a videotaped
interview Davis had with investigating
officers. The district court denied the
petition.
  1. The day after oral argument of his
appeal, White was released on parole.
Indiana contends in supplemental
memoranda filed at our request that
White’s parole makes this proceeding
moot, on the theory that only the
terminal date of his sentence--a date
unaffected by good-time credits-- now
concerns him. The Board’s decision
delayed his parole but does not affect
how long parole continues after release.
Indiana law provides that parole never
lasts more than two years, or the end of
the sentence, whichever comes first. I.C.
sec.35-50-6-1. White was paroled on June
8, 2001, so his supervision will end on
June 7, 2003, three days before his
sentence expires. More good-time credits
would not advance the expiration of his
sentence. Majors v. Broglin, 531 N.E.2d
189 (Ind. 1988). Because neither the two-
year period nor the end of the sentence
depends on the disciplinary action, the
state contends that the Board’s decision
has no current consequences and the case
must be moot. See Spencer v. Kemna, 523
U.S. 1 (1998); Murphy v. Hunt, 455 U.S.
478 (1982).

  The difficulty with this position is
that it disregards the link between good-
time credits and release on parole. The
Board’s decision postponed the start of
White’s parole by approximately six
months. Because parole in Indiana lasts a
maximum of two years, the Board’s
decision also postpones the end of
White’s supervision: had he been
released, say, on December 8, 2000, his
parole would be over by December 7, 2002,
rather than June 7, 2003. This means that
the federal court has the power to affect
the duration of White’s custody (for
parole is a form of custody): If the
disciplinary hearing is deemed defective,
the court may order Indiana to terminate
White’s parole when it would have
expired, but for the Board’s decision on
the drug-trafficking charge. The
proceeding is not moot.

  2. Indiana offers a second procedural
contention: that unless the Board’s
procedures contravene a decision of the
Supreme Court, or apply that Court’s
decisions unreasonably, collateral relief
is precluded. The state relies on 28
U.S.C. sec.2254(d), as amended by the
Antiterrorism and Effective Death Penalty
Act of 1996:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim--

(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was
based on an unreasonable determination of
the facts in light of the evidence
presented in the State court proceeding.

Both the language of the aedpa and
Williams v. Taylor, 529 U.S. 362, 412
(2000), show that, when this
provisionapplies, decisions of courts
other than the Supreme Court must be
disregarded. Only that Court’s own
decisions, and not glosses applied by
other tribunals, may be enforced on
collateral review. Cf. Tyler v. Cain, No.
00-5961 (U.S. June 28, 2001). This could
be a substantial advantage for Indiana,
because Wolff v. McDonnell, 418 U.S. 539
(1974), the Supreme Court’s principal
decision articulating procedural
requirements for prison disciplinary
hearings, does notdirectly support either
branch of White’s argument.

  But does sec.2254(d) apply? White is "a
person in custody pursuant to the
judgment of a State court", but how was
his "claim . . . adjudicated on the
merits in State court proceedings"? The
Conduct Adjustment Board is not a court,
and Indiana did not afford judicial
review of such a Board’s decision. How
then could sec.2254(d) be relevant?
According to the state, sec.2254(d) uses
the word "court" in different ways. The
first reference ("judgment of a State
court") uses the word in its normal
sense, as an institution with legally
trained judges following rules of
evidence and adversarial procedure with
lawyers available to both sides. (Only
such an institution may enter a lawful
judgment committing an accused to
prison.) The second time the word appears
("adjudicated on the merits in State
court proceedings"), according to the
state, it takes a special sense
equivalent to "any adjudicatory body."
Agencies can and do adjudicate even
though they follow inquisitorial
procedures and lack lawyers; the Board is
an agency; hence, Indiana insists, it is
a "court" for purposes of sec.2254(d).

  This is not a natural reading of the
word--not only because it is unusual to
treat agencies as courts but also because
it requires the word "court" to have two
meanings in one sentence. Still, the
state has some support in this circuit’s
decisions. Markham v. Clark, 978 F.2d 993
(7th Cir. 1992), reads the word "court"
in sec.2254(b)(1)(A) to include all
adjudicatory bodies. (Markham predates
the aedpa, but the language it interpreted
has been carried forward with minimal
change.) Section 2254(b)(1)(A) requires
state prisoners to exhaust "the remedies
available in the courts of the State"
before seeking collateral relief in
federal court. Markham holds that an
appellate apparatus within a prison
system is a "court" for this purpose and
thus that state prisoners deprived of
good-time credits must use all available
administrative remedies. That is why
White had to appeal to the warden and
then the Indiana Department of
Corrections before seeking federal
review. Section 2254(c) supports this
usage of the word "court" by providing
that "[a]n applicant shall not be deemed
to have exhausted the remedies available
in the courts of the State, within the
meaning of this section, if he has the
right under the law of the State to
raise, by any available procedure, the
question presented." (Emphasis added.)

  One could read sec.2254(c) as limited to
any judicial procedure (so that state
prisoners must resort to collateral
attacks, mandamus, and other remedies, as
well as direct appeals), but Markham
concluded that it means any procedure at
all, judicial or not. Nothing like
sec.2254(c) enlarges the definition of
"court" for purposes of sec.2254(d), and
the latter section serves a function--
enlarging the extent to which state
judgments receive full faith and credit,
despite provision for collateral attacks-
-that is more closely linked to the
traditional understanding of a court.

  Markham has a second theme: that "how
states carve up adjudicative functions
between courts and agencies is in general
and in this particular no business of the
federal courts, for the Constitution does
not prescribe any particular allocation
or separation of powers among the states.
. . . If one state wants to use an
administrative body where another state
would use a conventional ’court,’ its
choice is a matter of indifference from
the standpoint of the principles of
federalism and comity". 978 F.3d at 995.
This is undoubtedly true for many
subjects; states may (and do) allocate
some apparently legislative powers to
judges, and adjudicatory powers to non-
tenured officials (whether called courts
or agencies). But a few federal laws
recognize differences among branches of
state government. One of these is the
Full Faith and Credit Clause, Art. IV
sec.1, which provides: "Full Faith and
Credit shall be given in each State to
the public Acts, Records, and judicial
Proceedings of every other State. And the
Congress may by general Laws prescribe
the Manner in which such Acts, Records
and Proceedings shall be proved, and the
Effect thereof." (Emphasis added.)
Section 2254(d) specifies the extent to
which states’ decisions must be respected
in collateral attacks and thus like 28
U.S.C. sec.1738 exercises the power
granted by the second sentence of the
Full Faith and Credit Clause. We know
from University of Tennessee v. Elliott,
478 U.S. 788 (1986), that for purposes of
sec.1738 a state agency is not a judicial
body, and that a federal tribunal
therefore may reexamine de novo issues
determined by a state agency but not
reviewed by that state’s judiciary. See
also Astoria Federal Savings & Loan Ass’n
v. Solimino, 501 U.S. 104 (1991). Cf.
Cleavinger v. Saxner, 474 U.S. 193 (1985)
(members of prison disciplinary boards
are not treated as judges for the purpose
of absolute immunity). Elliott and
Astoria strongly imply that state
disciplinary boards are not the sort of
"courts" whose decisions have independent
legal force when Congress provides for
federal review of the same topics. If
administrative decisions do not have
preclusive effect under sec.1738 (or the
Full Faith and Credit Clause itself), why
should they have preclusive effect under
sec.2254?

  Nonetheless, our early encounters with
sec.2254(d) as amended by the aedpa did
not sharply distinguish judicial from
administrative decisionmakers. Evans v.
McBride, 94 F.3d 1062 (7th Cir. 1996),
reserved the question whether the amended
sec.2254(d) applies to cases pending when
the aedpa was enacted, implying in the
process that if it does apply then a
disciplinary board is a "court"--for the
petitioner in Evans was seeking relief
from a decision concerning good-time
credits, and the state judiciary had not
addressed his contentions. We wrote in
Evans, 94 F.3d at 1065: "Our circuit has
issued a number of opinions requiring
prison disciplinary officials to explain
their actions more fully, . . . but if
these are extensions of (rather than
glosses on) the decisions of the Supreme
Court, they provide a poor foundation for
relief under the amended sec.2254." Yet
disregard of circuit-level precedent
would be required by sec.2254(d) only if
prison disciplinary boards count as
"courts." Evans did not go further, but
its implication has been repeated in
dictum by several later cases, none of
which analyzes the issue beyond citing
Evans, which itself did not analyze the
question. See, e.g., Gaither v. Anderson,
236 F.3d 817, 819-20 (7th Cir. 2001);
Sweeney v. Parke, 113 F.3d 716, 719 (7th
Cir. 1997).

  Section 2254 is one among many parts of
the aedpa that make the handling of
federal collateral attack turn on what a
state "court" has done. Another is
sec.2253(c), which says:

(1) Unless a circuit justice or judge
issues a certificate of appealability, an
appeal may not be taken to the court of
appeals from--

(A) the final order in a habeas corpus
proceeding in which the detention
complained of arises out of process
issued by a State court; or

(B) the final order in a proceeding
under section 2255.

Does a state prisoner need a certificate
of appealability when seeking federal
collateral review of a prison
disciplinary board’s decision revoking
good-time credits? We gave a negative
answer in Walker v. O’Brien, 216 F.3d 626
(7th Cir. 2000), holding among other
things that the additional time served as
a result of a disciplinary board’s
decision is not "detention [that] arises
out of process issued by a State court".
That conclusion was debated within the
court; three judges thought that
detention "arises out of process issued
by a State court" whenever imprisonment
has been authorized by a criminal
sentence. 216 F.3d at 642-44. Thus it is
possible to see how collateral attacks
concerning good-time credits could
require certificates of appealability
even if a disciplinary board is not a
"court"; but it is impossible to see how,
if a disciplinary board is a "court," an
appeal would be possible without a
certificate of appealability. The assump
tion made in cases such as Evans
therefore is irreconcilable with the
holding of Walker in addition to the
holdings of Elliott and Cleavinger.

  To eliminate the tension among this
court’s decisions, we now disapprove any
language in Evans, Sweeney, Gaither, and
similar opinions implying that prison
disciplinary boards are "courts" for the
purpose of 28 U.S.C. sec.2254(d). That
portion of the aedpa accordingly does not
affect collateral review of decisions
revoking good-time credits unless states
provide for judicial review of these
decisions--review that under sec.2254(c)
(as interpreted in Markham) a prisoner
must pursue. White did pursue all
available state corrective processes, but
Indiana does not make a judicial process
available, so sec.2254(d) does not give
that state the benefit of limitation on
the scope of federal collateral attack.
(So far as we can tell, this decision is
the first anywhere in the country to
produce a holding, as opposed to dicta,
about the question. Evans, Sweeney, and
Gaither at least adverted to the
question, though they did not resolve it.
Courts elsewhere do not ever advert to
the subject. For example, the eighth
circuit has treated prison disciplinary
boards as courts with no explanation, see
Closs v. Weber, 238 F.3d 1018 (8th Cir.
2001), while the fifth circuit has
employed de novo review with no
explanation, see Broussard v. Johnson,
2001 U.S. App. Lexis 14170 (5th Cir. June
25, 2001); Hudson v. Johnson, 242 F.3d
534 (5th Cir. 2001).)

  3.   Now we arrive at the merits, where
our conclusion that the Board is an
agency rather than a court has a
different significance. White’s principal
contention is that the Board violated the
due process clause of the fourteenth
amendment because Officer Thompson, who
prepared the conduct report charging him
with drug trafficking, remained in the
hearing room after the close of the
evidence and, we must presume, discussed
the charge with the Board’s members
before or even during their
deliberations. (Because there is no
written record, we cannot tell how long
Thompson remained and thus we indulge the
assumption that he stayed through the
deliberations.) If the Board were a
court, ex parte proceedings would be
irregular and would raise constitutional
issues--and although the due process
clause does not apply to the states every
ethical requirement for federal judges,
see Del Vecchio v. Illinois Department of
Corrections, 31 F.3d 1363 (7th Cir. 1994)
(en banc), receipt of evidence off the
record, or lobbying in chambers by a
witness for one side, would be a
substantial problem under the
Constitution. But non-record discussions
between an agency’s decisionmakers and
members of the agency’s staff are common
and proper; for example, Commissioners of
the Federal Trade Commission routinely
discuss pending cases with that agency’s
economic staff, even though the
economists also give counsel to (and
testify for) the agency’s internal
prosecutor (the Bureau of Competition).
When the Chairman of the ftc has a private
meeting with the agency’s Chief
Economist, does this spoil all cases then
under advisement? Hardly. Agencies and
courts have different methods of
resolving disputes; what is unthinkable
for a court may be normal for an agency;
and although the ftc must in the end
defend its decisions by reference to the
administrative record, no rule of law
prevents the Commissioners (or, say,
Members of the National Labor Relations
Board) from discussing pending matters
with agency employees. See 5 U.S.C.
sec.554(d).

  Once a person has been convicted and the
sentence specified by a court, informal
proceedings determine how much of that
sentence must be served. The role (and
the propriety) of ex parte contacts are
clearest in the pardon process. Governors
rarely hold hearings on the record; they
receive information and advice from many
sources, including prosecutors, victims,
and witnesses. None of these steps is
constitutionally questionable, and none
becomes so if the governor delegates the
pardoning power to an agency that holds
formal hearings; a governor (or other
holder of the pardoning power) need not
provide any process at all and may
resolve matters as he pleases. See
Connecticut Board of Pardons v. Dumschat,
452 U.S. 458 (1981). Likewise with
parole. See Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1 (1979). Officials
empowered to act on applications for
release regularly use informal process,
receiving unsworn (and sometimes off-the-
record) recommendations from prosecutors,
victims, and witnesses. In the wake of
Wolff decisions about good-time credits
are subject to more constitutional
limitations than decisions about pardons
or parole, but Wolff did not require
disciplinary boards to follow the
judicial model. To the contrary, Wolff
concluded that disciplinary boards need
not place on the record all of the
evidence that influences their decisions.
The Court recognized that considerations
of institutional security may militate
against full disclosure. In White’s own
proceeding, although a "Report of
Conduct" detailing the charge was made
available, a separate "Case Report" was
held in confidence, a step that White
does not contest. If the Case Report
could be held back--as portions of
presentence reports in criminal
prosecutions may be held back--it is hard
to see how there could be a
constitutional objection to allowing
Officer Thompson to discuss that Case
Report with the Board in confidence. We
do not know what Thompson said to the
Board’s members and thus cannot be sure
that his contribution was limited to
discussing the portion of the evidence
that was legitimately held in confidence,
or subjects such as selecting the right
penalty; this is an inevitable
consequence of off-the-record
discussions. But it is a risk common to
all non-record proceedings; a reviewing
court cannot know what happened even in
the public portions of a prison
disciplinary hearing.

  Because prison disciplinary boards are
entitled to receive, and act on,
information that is withheld from the
prisoner and the public, they must be
entitled to discuss that evidence off the
record with persons who know its
significance. Wolff holds that prisoners
are entitled to impartial decisionmakers-
-Thompson could not have been given a
vote on the Board, see 418 U.S. at 570-
71; Merritt v. De Los Santos, 721 F.2d
598 (7th Cir. 1983); Whitford v. Boglino,
63 F.3d 527, 534 (7th Cir. 1995)--but
there is no reason to believe that the
members of this Board were other than
impartial. Listening to a point of view
does not constitute bias. If it did,
judges could not listen to witnesses or
lawyers who represent adversarial
positions, and they probably could not
consult with the authors of presentence
reports or read articles in law reviews,
for both presentence-report writers and
professors may have axes to grind.
Disciplinary boards are made up of prison
employees; Thompson surely was talking to
this panel’s members routinely, and on
other occasions Thompson likely served as
a member and received evidence presented
by the officers who made up White’s
disciplinary panel. Such daily
camaraderie and mixing of roles pose
greater threats to impartiality than does
listening to commentary on off-the-record
evidence in a particular case--yet it is
clear from Wolff that the Constitution
does not require prisons to import
professional decisionmakers such as
administrative law judges to run the
disciplinary process. The Court could
have required a more adversarial approach
to prison discipline but held instead
that an inquisitorial model suffices, if
modified by formal separation of the
witnesses and decisionmakers in the
particular case. Formal separation was
respected here--for Thompson was not a
member of the Board. Baxter v.
Palmigiano, 425 U.S. 308 (1976), warns
the courts of appeals not to add to the
procedures required by Wolff, which,
Baxter held, represents a balance of
interests that should not be further
adjusted in favor of prisoners. Indiana
has played by the rules articulated in
Wolff. Cf. Edwards, 520 U.S. at 647.
  4. Two pieces of confidential evidence
were received at the hearing: the Case
Report and the videotaped interview with
Yvonne Davis. As we have mentioned, White
does not protest the confidentiality of
the Case Report, but he does contend that
he should have received the tape of the
interview with Davis. White believes that
lack of access to this tape prevented him
from presenting favorable evidence, one
of his rights under Wolff. We have some
difficulty, however, seeing the linkage.
The Board had the tape, so it knew
whatever evidence favorable to White the
tape contained. The district court, which
reviewed the tape, thought it highly
inculpatory; but even if it was
exculpatory it was before the Board. The
only evidence that White wanted to, but
could not, present was live testimony of
Yvonne Davis. But the reason why he could
not present her testimony--that she was
no longer an employee of the prison, and
the Board lacked compulsory process to
require civilians to appear before it--is
unrelated to his access to the tape. This
makes it difficult to see what is at
stake. White is understandably curious
about what the tape reflects, but the
prison is understandably skittish about
revealing an interview that likely
discussed prison-security measures about
which prisoners are best kept in the
dark.

  As the district court held, the
administrative record contains "some
evidence" that White engaged in drug
trafficking. See Superintendent of
Walpole v. Hill, 472 U.S. 445, 454
(1985). The Board therefore was entitled
to take the actions it did, and the
petition for habeas corpus was properly
denied.

Affirmed




  ROVNER, Circuit Judge, concurring in part
and dissenting in part. I agree with my
colleagues on the procedural points,
i.e., that this case is not moot and,
further, that 28 U.S.C. sec.2254(d) does
not apply to White’s habeas petition.
Ante sec.sec. 1, 2. I also agree that
White was not deprived of due process
when he was denied access to the
videotape of the interview with Yvonne
Davis. Ante sec. 4. I respectfully
disagree, however, with their conclusion
that Officer Thompson’s ex parte meeting
with the Conduct Adjustment Board (the
"CAB" or the "Board") immediately prior
to, and even during, the Board’s
deliberations did not deprive White of
due process. Ante sec. 3.

  Due process entitles a prisoner faced
with the loss of good-time credits to
certain rudimentary procedural
protections. Wolff v. McDonnell, 418 U.S.
539, 555-58, 94 S. Ct. 2963, 2974-76
(1974). These include the right to
advance written notice of the charges
against him, so that he might know what
the charges are and "marshal the facts
and prepare a defense," id. at 564, 94 S.
Ct. at 2979, and the right (within
reasonable limits) to call witnesses and
present documentary evidence on his own
behalf, id. at 566-67, 94 S. Ct. at 2979-
80. A "sufficiently impartial"
decisionmaker is also necessary, in order
to shield the prisoner from the arbitrary
deprivation of his liberties. Id. at 570-
71, 94 S. Ct. at 2982; see also Gaither
v. Anderson, 236 F.3d 817, 820 (7th Cir.
2000) (per curiam); Merritt v. de los
Santos, 721 F.2d 598, 601 (7th Cir. 1983)
(per curiam); Redding v. Fairman, 717
F.2d 1105, 1112, 1116 (7th Cir. 1983),
cert. denied, 465 U.S. 1025, 104 S. Ct.
1282 (1984); United States ex rel. Miller
v. Twomey, 479 F.2d 701, 716, 718 (7th
Cir. 1973) (Stevens, J.), cert. denied,
414 U.S. 1146, 94 S. Ct. 900 (1974).

  The fact that Thompson was allowed to
remain behind in the hearing room with
the members of the CAB after White’s
hearing had concluded was inconsistent
with each of these procedural rights. As
we have no record of what transpired
between Thompson and the Board, we must
presume, as my colleagues in fact do,
that Thompson and the members of the
Board engaged in an ex parte discussion
of the charges against White. Ante at
8./1 It is possible that during that
exchange, Thompson supplied the Board
with additional details about White’s
behavior, effectively expanding the
charges against White. If so, the
discussion deprived White of advance
notice of those charges. See Wolff, 418
U.S. at 564, 94 S. Ct. at 2978-79; Swank
v. Smart, 898 F.2d 1247, 1253 (7th Cir.
1990). Even if the charges were not
broadened, and Thompson simply repeated,
clarified, or amplified his previous
testimony, it would have been as if the
Board had reopened the hearing upon
White’s departure from the room and
continued it in absentia, without any
demonstrable basis, such as a security-
related concern (see Wolff, 418 U.S. at
565, 94 S. Ct. at 2979), for doing so. By
depriving White of the opportunity to
meet the case against him, that scenario
too would violate due process. See Wolff,
418 U.S. at 566-67, 94 S. Ct. at 2979-80;
Swank, 898 F.2d at 1253-54. Even if all
that Thompson did was take the
opportunity to make a final summation to
the Board, the exchange was nonetheless
unacceptable. When we hear oral
arguments, we do not ask the appellee and
his counsel to leave the courtroom at the
conclusion of his argument, so that the
appellant may make a final, rebuttal
argument to us in private; it would be no
less of an "extraordinary impropriety"
for a Conduct Adjustment Board the Board
to grant that privilege to an
investigating officer. Id. at 1254.

  An ex parte proceeding always presents
the risk of an erroneous result, see
United States v. Michelle’s Lounge, 39
F.3d 684, 699 (7th Cir. 1994); and here
it also calls into question the
neutrality of the Board itself. Doubtless
it is true that the members of a Conduct
Adjustment Board, by virtue of their
positions within the penal system as well
as their day-to-day interaction with and
reliance upon correctional officers, are
more likely to credit and to empathize
with those who, like Thompson, document
and present charges against prisoners,
see ante at 11; Cleavinger v. Saxner, 474
U.S. 193, 204, 106 S. Ct. 496, 502
(1985); Cluchette v. Procunier, 497 F.2d
809, 820 (9th Cir. 1974), modified on
other grounds, 510 F.2d 613 (9th Cir.
1975), and rev’d on other grounds by
Baxter v. Palmigiano, 425 U.S. 308, 96 S.
Ct. 1551 (1976); and yet the Supreme
Court has never indicated that this
likelihood alone disqualifies prison
officials and staff members from serving
as members of the CAB. See Wolff, 418
U.S. at 570-71, 94 S. Ct. at 2982. But
there is a qualitative difference between
a decisionmaker’s familiarity with, and
possible predisposition to believe, a
witness, and an ex parte conversation
between the decisionmaker and the witness
about the merits of the case. Thompson
was not the FTC’s Chief Economist (see
ante at 9); he was White’s chief accuser.
His credibility was a material, if not
crucial, factor in the Board’s assessment
of the charges against White. My
colleagues concede that due process would
not have permitted Thompson to serve as a
voting member of the Board. Ante at 11;
see Whitford v. Boglino, 63 F.3d 527, 534
(7th Cir. 1995) (per curiam) cert.
denied, 529 U.S. 1075, 120 S.Ct. 1691
(2000); Malek v. Camp, 822 F.2d 812, 816
(8th Cir. 1987); de los Santos, 721 F.2d
at 601; Cluchette, 497 F.2d at 820; see
generally In re Murchison, 349 U.S. 133,
136, 75 S. Ct. 623, 625 (1955). Yet, at
a critical stage of the process, just
after the close of evidence and at the
beginning of the Board’s deliberations,
Thompson had the opportunity to argue the
case against White, to spin the facts, to
add details that had not emerged at the
hearing itself, to try to sway Board
members, and even to haggle with them as
they began to deliberate--all in the
absence of White, an advocate for White,
a record, or any other check to maintain
the balance between the accused and his
accuser that is essential to due process.
The ability to influence the Board’s
decision free of such restraints comes
disturbingly close to a vote on White’s
fate.

  Although it is impossible for us to know
precisely what effect the ex parte
exchange between Thompson and the Board
had upon the Board’s decision, cf. Simer
v. Rios, 661 F.2d 655, 680-81 & n.54 (7th
Cir. 1981) (no prejudice shown), cert.
denied, 456 U.S. 917, 102 S.Ct. 1773
(1982), its effect on the fairness of the
process is self-evident. Secrecy itself
is inconsistent with the fundamental
tenets of due process. Home Box Office,
Inc. v. F.C.C., 567 F.2d 9, 56 (D.C.
Cir.) (per curiam), cert. denied, 434
U.S. 829, 98 S. Ct. 111 (1977), cited
with approval by Chicago, Milwaukee, St.
Paul & Pacific R.R. Co. v. United States,
585 F.2d 254, 263 (7th Cir. 1978); see
also Redding, 717 F.2d at 1112. In a real
sense, Thompson’s private audience with
the Board rendered all that had taken
place before then a sham, because White
cannot know what transpired in that
private exchange (let alone respond), and
because we ourselves, as a reviewing
body, are utterly in the dark as to the
substance of the exchange. See HBO, 567
F.2d at 54-55; cf. Simer, 661 F.2d at
680-81 (ex parte contacts between judge
and intervenors did not amount to due
process violation where contacts were
disclosed and plaintiffs were given
opportunity to respond)./2

  Strikingly absent from either the record
or the State’s brief is any justification
for the secrecy. It is possible, as my
colleagues suggest, that the Board asked
Thompson to remain behind at the
conclusion of the hearing in order to ask
him questions about his confidential Case
Report. See ante at 10. But it is equally
possible, as my colleagues acknowledge,
that Thompson’s ex parte remarks to the
Board were not confined to subjects that
necessitated confidence. See ante at 10.
And notably, neither the State nor my
colleagues have cited a plausible
justification for Thompson’s presence
during the Board’s deliberations. Without
at least some record as to the nature of,
and need for, the ex parte discussion, we
are in no position to judge whether it
exceeded the bounds of propriety.

  Throwing up our hands in the absence of
such a record (see ante at 10) does the
Constitution no service. We require
prison officials to assemble a record
containing "some evidence" supporting the
imposition of discipline. Superintendent
of Walpole v. Hill, 472 U.S. 445, 454,
105 S. Ct. 2768, 2773 (1985). When a
Conduct Adjustment Board decides to
question a witness ex parte, I see no
reason why it cannot in some manner
document the fact that it has done so and
why. See Wolff, 418 U.S. at 565, 94 S.
Ct. at 2979 (noting that when CAB
excludes evidence for security-related
reasons, it should note the exclusion);
see also Ponte v. Real, 471 U.S. 491,
496-97, 105 S. Ct. 2192, 2195-96 (1985)
(due process requires prison officials at
some point to disclose reasons for
refusal to call witnesses requested by
inmate at disciplinary hearing).
Furthermore, to the extent the Board
relies on the information disclosed in
the ex parte exchange, the record also
ought to tell us something about the
substance of that exchange. Cf. Whitford,
63 F.3d at 535-36 (CAB that relies on
testimony of confidential informant must
in some way document reliability of
informant). Otherwise, the procedural
safeguards embraced by Wolff, and for
that matter Hill’s demand for "some
evidence" supporting the discipline, are
illusory--the Board may go through the
motions of hearing, but ultimately may
resolve the case based on non-record
"evidence" to which only the Board and
the prisoner’s chief accuser are privy.
That is the antithesis of due process.

  With respect, I therefore dissent in
part from the court’s holding today.

FOOTNOTES

/1 It bears mention that at no level of administra-
tive review did anyone in the prison hierarchy,
including Thompson himself, deny that Thompson
remained in the hearing room with the Board after
the hearing had concluded. Only at the final
level of administrative review was this issue
even acknowledged. At that juncture, an adminis-
trative assistant with the Indiana Department of
Corrections wrote that "Officer Thompson, while
present at the hearing, was not involved in the
decision of your guilt or innocence." A.29. The
record does not disclose, however, what the basis
for that conclusion was. Moreover, even that
ruling did not purport to reject White’s conten-
tion that the Board and Thompson met privately
after the hearing, just prior to and even during
the Board’s deliberations.

/2 Adding insult to injury, the first person within
the prison hierarchy to review White’s grievance
regarding the ex parte contact between Thompson
and the Board was none other than Thompson him-
self. See A.23. Thompson did not deny White’s
allegation on the grievance form that Thompson
was "present during the deliberation of the
decision of guilt or innocent [sic]," A.23, but
simply wrote in response that as the investigat-
ing officer he had a right to attend and partici-
pate in the hearing and that "all I’m doing is my
job, that was placed before me." A.23-24. Of
course, "no man can be a judge in his own case."
Murchison, 349 U.S. at 136, 75 S. Ct. at 625. As
White’s accuser, and as a participant in the ex
parte exchange with the Board, Thompson was ill-
situated to review the propriety of the exchange.
His role in the resolution of White’s grievance
rendered the initial level of administrative
review meaningless.
