650 N.W.2d 43 (Wis.App. 1998), 01-1804, State ex rel. Curtis v. Litscher

Docket Nº:01-1804.
Citation:650 N.W.2d 43, 256 Wis.2d 787
Opinion Judge:[8] The opinion of the court was delivered by: Roggensack, J.
Party Name:STATE of Wisconsin ex rel. Al CURTIS, Paul Price, Danny Davis, Eric Hune, Antwan Townsend, Danny Webb, and Nathaniel Dukes, Plaintiffs-Respondents, [D] v. Jon E. LITSCHER, Secretary, Wisconsin Department of Corrections, Defendant-Appellant.
Case Date:June 20, 2002
Court:Court of Appeals of Wisconsin

Page 43

650 N.W.2d 43 (Wis.App. 1998)

256 Wis.2d 787

STATE of Wisconsin ex rel. Al CURTIS, Paul Price, Danny Davis, Eric Hune, Antwan Townsend, Danny Webb, and Nathaniel Dukes, Plaintiffs-Respondents, [D]


Jon E. LITSCHER, Secretary, Wisconsin Department of Corrections, Defendant-Appellant.

No. 01-1804.

Court of Appeals of Wisconsin.

June 20, 2002

Page 44

[Copyrighted Material Omitted]

Page 45

[256 Wis.2d 791] On behalf of the defendant-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Stan Davis, assistant attorney general.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Howard B. Eisenberg of Howard B. Eisenberg Law Office of Milwaukee.



The seven inmate-petitioners (inmates) 1 in this certiorari action were accused of participating in a riot/hostage situation at a private, contract prison facility located in Whiteville, Tennessee. The inmates claim, and the circuit court found, that a disciplinary hearing held at the Whiteville facility on December 9, 1999 was procedurally defective and that the Wisconsin Department of Corrections (DOC) improperly relied on the findings from that hearing in subsequent proceedings. We conclude that we have authority to review the December 9, 1999 disciplinary hearing by certiorari and that, even under DOC's version of events, the Whiteville facility violated its, and DOC's, procedures by selecting a hearing examiner who witnessed the relevant events. Therefore, we invalidate the December 9, 1999 disciplinary hearing and any subsequent hearings or changes in status that relied on the hearing examiner's findings as a basis for the decision. However, we also conclude that DOC may hold administrative confinement hearings and consider the inmates' alleged conduct to the extent that conduct is proved without relying on the findings of the hearing examiner at the December 9, 1999 hearing. Accordingly, we affirm in part and reverse in part the order of the circuit court.


¶ 2 The seven inmates were confined in a private correctional facility in Whiteville, Tennessee when they were charged with violations of facility rules, classified as major offenses, 2 for allegedly participating in a riot/hostage situation that took place on November 30, 1999. An employee of the Whiteville facility conducted a disciplinary hearing on the charges on December 9, 1999. The staff member who served as the hearing examiner found all seven inmates guilty and penalized them with varying periods of disciplinary segregation.

¶ 3 Before the inmates could serve their time in disciplinary segregation at Whiteville, DOC approved a Program Review Committee (PRC) recommendation that the inmates should be transferred to Supermax Correctional Institution in Boscobel, Wisconsin. The inmates' involvement in the Whiteville uprising was a primary factor in the transfer decisions. After being transferred to Supermax, each of the inmates was placed in administrative confinement as a result of decisions by an Administrative Confinement Review Committee (ACRC). The ACRC decisions were premised, at least in part, on the

Page 46

findings from the December 9, 1999 hearing in Whiteville.

[256 Wis.2d 793] ¶ 4 The Whiteville facility's internal disciplinary procedures provide that an inmate subjected to a disciplinary penalty may appeal the hearing examiner's decision to the warden of the facility. All seven inmates pursued this avenue of appeal, raising various claims of procedural error. The warden denied all appeals.

¶ 5 At the same time that the inmates were pursuing their appeals to Whiteville's warden, they were simultaneously seeking review of the Whiteville disciplinary decisions through the Inmate Complaint Review System (ICRS) in Wisconsin and by challenging the PRC and ACRC decisions that relied on the findings of the Whiteville disciplinary proceeding. DOC consistently took the position that the inmates could not obtain review of the Whiteville disciplinary decision by filing an inmate complaint in a Wisconsin prison. Similarly, DOC repeatedly asserted that the inmates could not collaterally challenge the Whiteville proceedings by raising the issues in PRC or ACRC proceedings.

¶ 6 Following the Whiteville warden's unfavorable decisions and the inmates' unsuccessful attempts to obtain administrative review of the Whiteville proceedings through DOC in Wisconsin, two of the seven inmates attempted to obtain review of the Whiteville disciplinary decisions by initiating actions in the Tennessee courts. See WIS. STAT. §§ 301.21(2m)(b) 3 and 302.02(3t) (1999-2000). 4 Those filings were dismissed with the following explanation: "Please be [256 Wis.2d 794] advised that since you are now a resident of the State of Wisconsin you will need to make your filings in the State of Wisconsin."

¶ 7 Apparently lacking any access to the Tennessee courts, the seven inmates jointly filed a petition for a writ of certiorari on June 13, 2000 in the circuit court for Dane County. The petition states that the inmates "are hereby asking the Court to review the disciplinary decisions and actions of the [Secretary of DOC] and disciplinary officer." The prayer for relief in the petition provides:

Wherefore, the petitioners respectfully request that a writ of certiorari be granted to bring up for review and determination the proceedings in the matters set forth in this petition, and that upon review and return of that writ, the decision and actions of the [Secretary], the disciplinary committee and the administrative confinement review committee be reversed and adjudged to be null and void.

¶ 8 DOC argued that the circuit court's authority on certiorari does not extend to review of disciplinary decisions made by officials at an out-of-state, private prison. The circuit court disagreed, concluding that because the inmates were sentenced by Wisconsin courts, they had the right to seek certiorari review of major disciplinary proceedings in Wisconsin courts when no other avenue of judicial review was available.

¶ 9 On the merits, the circuit court held that the record established that the Whiteville hearing violated the inmates' rights because (1) the hearing examiner was directly involved in the events that gave rise to the charges, and (2) the hearing examiner's

Page 47

report failed to state adequate reasons for the decision. The court [256 Wis.2d 795] invalidated the disciplinary decisions and ordered DOC to conduct new PRC and ACRC hearings for each of the inmates at which DOC would not be permitted to consider the disciplinary charges that were adjudicated on December 9, 1999 or any information relating to the November 30, 1999 uprising at Whiteville.


Standard of Review.

¶ 10 We review the decision of the administrative agency, not the decision of the circuit court. State ex rel. Sprewell v. McCaughtry, 226 Wis.2d 389, 393, 595 N.W.2d 39, 41...

To continue reading