State ex rel. Curtis v. Litscher

• Decision Date: 20 June 2002
• Docket Number: No. 01-1804.,01-1804.
• Parties: STATE of Wisconsin EX REL. Al CURTIS, Paul Price, Danny Davis, Eric Hune, Antwan Townsend, Danny Webb, and Nathaniel Dukes, Plaintiffs-Respondents, v. Jon E. LITSCHER, Secretary, Wisconsin Department of Corrections, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

256 Wis.2d 787

2002 WI App 172

650 N.W.2d 43

STATE of Wisconsin EX REL. Al CURTIS, Paul Price, Danny Davis, Eric Hune, Antwan Townsend, Danny Webb, and Nathaniel Dukes, Plaintiffs-Respondents,¹ v. Jon E. LITSCHER, Secretary, Wisconsin Department of Corrections, Defendant-Appellant.

No. 01-1804.

Court of Appeals of Wisconsin.

Submitted on briefs January 11, 2002.

Decided June 20, 2002.

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.

Before Vergeront, P.J., Dykman and Roggensack, JJ.

¶ 1. ROGGENSACK, J.

The seven inmate-petitioners (inmates)² 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.

BACKGROUND

¶ 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,³ 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 findings from the December 9, 1999 hearing in Whiteville. ¶ 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)⁴ and 302.02(3t) (1999-2000).⁵ Those filings were dismissed with the following explanation: "Please be 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 report failed to state adequate reasons for the decision. The court 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.

DISCUSSION

Standard of Review.

[1-3]

¶ 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 (Ct. App. 1999). Whether the scope of our review reaches the issues raised in a certiorari petition presents a question of law, and if we have authority to reach the issues, we decide de novo whether the administrative body acted within its jurisdiction, whether it acted according to applicable law, whether its action was arbitrary and unreasonable, and whether the evidence supported the determination in question. Id.; see also State ex rel. Kaczkowski v. Fire & Police Comm'rs, 33 Wis. 2d 488, 501-02, 148 N.W.2d 44, 51 (1967)

(determining the scope of the court's authority on certiorari review in an appeal that followed statutory judicial review of the decision of a board of police and fire commissioners).

Availability of Certiorari Review.

[4]

¶ 11. DOC first argues that Wisconsin courts do not have authority to review prison disciplinary decisions made at an out-of-state, private prison. Under the circumstances presented in this case, we disagree. [5, 6]

¶ 12. A decision may be reviewed by common law certiorari when no legislative provision establishes how review may be had. State ex rel. Smits v. City of De Pere, 104 Wis. 2d 26, 31, 310 N.W.2d 607, 609 (1981). Certiorari is the well-established mode of judicial review for inmates of Wisconsin prisons who seek to challenge prison disciplinary decisions. See State ex rel. Shimkus v. Sondalle, 2000 WI App 238, ¶¶ 1, 14, 239 Wis. 2d 327, 620 N.W.2d 409

; State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 119, 289 N.W.2d 357, 361 (Ct. App. 1980). And, although the legislature has provided that judicial review of disciplinary proceedings conducted by an out-of-state, contract prison may proceed in the county of the state where the prison is located, see WIS. STAT. § 302.02(3t),⁶ unique circumstances in this case precluded this provision from affording the inmates judicial review in Tennessee.

¶ 13. Here, DOC transferred the inmates to a Wisconsin prison immediately after the disciplinary hearing. Once the inmates were returned to Wisconsin, the Tennessee court refused to review their cases. Because no statutory provision for judicial review of a prison disciplinary decision applied to the inmates in this case, we conclude that Wisconsin courts may review the Whiteville disciplinary decision by certiorari. ¶ 14. DOC contends that, regardless of the availability or unavailability of judicial review in the Tennessee courts, our authority does not extend to a review of the disciplinary decisions of a private, out-of-state prison that houses Wisconsin inmates by contract. Again, we disagree. Although DOC has the statutory power to delegate some of its administrative functions to private prison facilities by contract, the contract facility performs those functions as agents of DOC and the State.⁷See WIS. STAT. § 301.03(2) (mandating that DOC shall "[s]upervise the custody and discipline of all prisoners"). DOC's contract with the private facility in Whiteville neither absolves DOC from ultimate responsibility for the performance of its assigned...