State ex rel. Brown v. Bradley, 01-3324-W.

Decision Date06 March 2003
Docket NumberNo. 01-3324-W.,01-3324-W.
Citation259 Wis.2d 630,658 N.W.2d 427,2003 WI 14
PartiesSTATE of Wisconsin EX REL. Norman O. BROWN, Petitioner, v. Jody BRADLEY, Warden, North Fork Correctional Facility, and Jon Litscher, Secretary, Department of Corrections, Respondents.
CourtWisconsin Supreme Court

For the petitioner there was a brief by Greg J. Carman, Shorewood, and oral argument by Greg J. Carman.

For the respondents the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.


The Petitioner, Norman O. Brown, seeks reinstatement of his petition for review which was previously dismissed as untimely filed.1 Brown contends that this court should apply retroactively the tolling rule for pro se prisoners that it adopted in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and deem his petition for review "timely."

¶ 2. We now conclude that the tolling rule we adopted in Nichols is a civil procedural rule with limited retroactive application. It applies retroactively to cases on direct review or not yet final when Nichols was decided and to pro se prisoners who had raised the issue in habeas petitions that were still pending before this court. Because this court denied Brown's petition for review prior to deciding Nichols, he is not entitled to relief under this application of the tolling rule. However, we determine that denying relief to Brown would be unjust because this court denied Brown's petition for habeas corpus while nearly simultaneously granting Nichols' petition raising virtually the same claim. Accordingly, we reinstate Brown's petition for review pursuant to Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986).


¶ 3. Brown's petition for review stemmed from the circuit court's denial of his motion to withdraw his no contest plea.2 The court of appeals affirmed in part and reversed in part, and remanded the case to the circuit court to determine whether the prosecution had breached the plea agreement it reached with Brown. The circuit court determined that no breach occurred, and the court of appeals affirmed that determination on July 6, 2000. State v. Brown, Nos. 99-2567-CR and 99-2568-CR, unpublished slip op. (Wis. Ct. App. July 6, 2000).

¶ 4. Brown, who was incarcerated in the North Fork Correctional Facility in Sayre, Oklahoma, submitted to this court a pro se petition for review. Under Wis. Stat. § 808.10 and Wis. Stat. (Rule) § 809.62(1), he had 30 days to file his petition. This court did not receive Brown's petition for review until August 9, 2000, two days after the statutory deadline. It therefore dismissed the petition as untimely.

¶ 5. Brown subsequently wrote the court, outlining the steps he had taken to prepare and file his petition for review, and asking that the court accept his petition as timely filed. This court treated Brown's correspondence as a motion for reconsideration and denied it. Brown then filed a petition for a writ of habeas corpus, which the court denied. Finally, on December 12, 2001, after this court had decided Nichols and adopted a tolling rule for pro se prisoners' petitions for review, Brown filed another habeas petition, claiming that the tolling rule should apply to his petition for review.


¶ 6. This court ordered briefing on only one issue: "whether the tolling rule adopted in [Nichols] should receive prospective or retroactive application." To resolve this issue, we first examine Nichols to set the stage for our discussion.

¶ 7. Much as in this case, Nichols involved a pro se prisoner's attempt to file a petition for this court's review.3Nichols,247 Wis. 2d 1013, ¶ 3. The filing deadline for Nichols' petition was February 25, 2000, 30 days after the court of appeals affirmed his conviction. Nichols gave his completed petition to the prison librarian for copying on February 15, 2000. He received the copies on a Friday afternoon, February 18, 2000, too late for outgoing mail on that day. The prison mailroom was closed on the weekend. Id. at ¶¶ 2-4.

¶ 8. Nichols delivered the petition to the mail-room on Monday, February 21. The clerk of court received the petition on Monday, February 28, three days after the deadline. This court dismissed the petition for review as untimely, and then denied Nichols' subsequent petition for a writ of habeas corpus. Id. at ¶¶ 4-6.

¶ 9. On reconsideration, Nichols urged the court to adopt a "prison mailbox rule" whereby a pro se prisoner's petition would be considered filed when delivered to the proper prison authorities for mailing. Id. at ¶ 6. Such a rule had been established by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988). We declined to implement the prison mailbox rule, but instead adopted a similar "tolling" rule that had been employed by the court of appeals in State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409. Nichols, 247 Wis. 2d 1013, ¶ 24.

¶ 10. We concluded that "the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing." Id. at ¶ 32. We further determined that the tolling rule applied to Nichols. Id. However, we specifically declined to determine whether the rule would generally apply retroactively or prospectively, noting that "because [Wis. Stat.] § 808.10 applies to all petitions for review, both civil and criminal, it is unclear if the retroactivity analysis used in civil cases should govern." Id. at ¶ 30. We stated that a determination of retroactive or prospective application "should be made with the benefit of briefs and argument on the merits by parties who take adverse positions." Id. at ¶ 31.


¶ 11. In the present case, the parties' disagreement is largely over the degree to which the tolling rule should apply retroactively, and over whether the rule is a civil or a criminal rule. Brown argues that the civil procedural rules apply, in part because one of the statutes governing the filing of petitions for review, Wis. Stat. § 808.10,4 is located within the chapters of the statutes which govern civil procedure. He further asserts that under either civil or criminal analysis, he is entitled to relief.

¶ 12. The State initially advances that the tolling rule is a criminal procedural rule. It then briefly asserts that if the rule is civil in nature, it should be applied prospectively. Ultimately, it argues that regardless of whether it is civil or criminal, prospective or retroactive, it should apply only to cases pending on direct review or not yet final when Nichols was decided and to pro se prisoners who filed habeas petitions seeking a prison mailbox rule before Nichols was decided but whose petitions were not yet acted upon by this court.

[2, 3]

¶ 13. In general, rules for criminal procedure apply retroactively only to those cases pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 328 (1987); State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993). The standards for civil procedural rules differ in that retroactive application is presumed. Browne v. WERC, 169 Wis. 2d 79, 112, 485 N.W.2d 376 (1992). In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Supreme Court established factors to consider in determining whether the presumption is overcome such that the new civil rule would apply prospectively. This court adopted the Chevron standards in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979).5

¶ 14. We determine that civil standards apply. Nothing in the language of the statutes setting a time limit for the filing of petitions for review, Wis. Stat. §§ 808.10 or 809.62, indicates that the statutes are criminal in nature. Sections 808.10 and 809.62 apply to petitions regarding both civil and criminal matters. While the tolling rule in question applies only to petitions filed by pro se prisoners, those prisoners may file petitions relating to matters other than their convictions—matters that are civil in nature. We conclude, much as the court did in M.W. v. Monroe County DHS, 116 Wis. 2d 432, 442, 342 N.W.2d 410 (1984), that because the statutes at issue are essentially civil in nature, we will apply the civil standards set forth in Chevron and Kurtz.


¶ 15. We next consider whether the application of the new rule should be retroactive or prospective. To aid in this determination, Chevron/Kurtz sets forth three factors for our consideration:

(1) Does the rule "establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed"?
(2) Will retroactive operation further or retard the operation of the rule in question?
(3) Will retroactive application produce substantial inequitable results?

Chevron, 404 U.S. at 106.


¶ 16. Wisconsin generally adheres to the doctrine that retroactive application of judicial decisions is the rule, not the exception. State v. Thiel, 2001 WI App 52, ¶ 7, 241 Wis. 2d 439, 625 N.W.2d 321. Yet, sometimes retroactive application of a new rule is unsettling because of a justifiable reliance on a contrary view of the law.

¶ 17. The Chevron/Kurtz factors require us to consider if reliance on a contrary rule of law was so justified and so detrimental as to require deviation from the traditional retroactive application. A prospective application of a new rule is used to mitigate hardships that may occur by retroactive application. Harmann, 128 Wis. 2d at 378-379. ¶ 18. The first Chevron/Kurtz factor inquires whether the new rule overruled clear past precedent or decided an issue of first impression whose resolution was not clearly foreshadowed. Nichols did not overrule any clear past precedent. Brown contends, however, that...

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