State ex rel. Ellenburg v. Gagnon

Citation251 N.W.2d 773,76 Wis.2d 532
Decision Date29 March 1977
Docket NumberNo. 75-109,75-109
PartiesSTATE of Wisconsin ex rel. Paul R. ELLENBURG, Appellant, v. John R. GAGNON, Respondent.
CourtUnited States State Supreme Court of Wisconsin

Elizabeth Alexander, Corrections Legal Services Program, Madison, with whom on the briefs was Charles Bennett Vetzner, Post-Conviction Defense Project, Madison, for appellant.

James H. Petersen, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

PER CURIAM.

In June of 1973, the petitioner-appellant Paul R. Ellenburg, an inmate at the Fox Lake Correctional Institution, made a complaint to the assistant wardens concerning alleged wrongdoing by employees of the institution.

The complaint alleged several acts of misconduct, some of which are as follows: Employees of the institution misused money obtained through a federal grant, were using institution facilities for personal gain, were not performing their duties, engaged in homosexual acts with inmates, and specifically named two employees whom he alleged were involved in an illicit sexual relationship outside the institution.

Because of the serious nature of the charges, the warden, John R. Gagnon, the respondent here, ordered a staff investigation. The investigation concluded there was no basis, in fact, for any of the allegations of Mr. Ellenburg.

On July 30, 1973, Gagnon charged Ellenburg with violating an institution rule entitled "False Communication." The rule stated: "No man shall in any way communicate false information to anyone knowing the same to be untrue."

On August 6 and 9, 1973, a three-man disciplinary committee of the institution convened to hear the charge against Ellenburg. After a hearing, in which Ellenburg and a staff counselor on his behalf appeared, the committee concluded the allegation that two institution employees were engaged in illicit sexual conduct was false and that it was a violation of the false communication rule. It recommended that Ellenburg be given seven days of isolation confinement and that three days prison good time be forfeited. 1 The decision of the disciplinary committee was affirmed by the Department of Health & Social Services.

A writ of certiorari was issued by the circuit court for Dodge county on March 1, 1974. On June 13, 1974, the circuit court filed a memorandum decision which directed a judgment be entered affirming the decision of the committee and the department. Judgment was entered January 28, 1975, and this appeal followed.

The appellant has raised several issues and filed an extensive well prepared brief. The appellant contends the false communication rule violates the First Amendment to the United States Constitution in that it is overbroad and vague, that there were several procedural errors and failures in the proceedings before the disciplinary committee, and that the totality of the proceedings denied the appellant of due process as required by the United States and Wisconsin Constitutions.

We conclude that all issues are now moot and that the appeal should be dismissed.

At the time of oral argument the appellant, Paul R. Ellenburg, was no longer an inmate of any Wisconsin correctional institution and not subject to institutional disciplinary rules. He had been released on parole. Because he is on parole, a decision of this court could in no manner affect the provision for institutionalized isolation. At this stage nothing this court could do would affect the isolation one way or the other. As to the loss of three days good time, whether it was taken or not, is de minimis. Ellenburg was serving an eleven-year sentence three days is de minimis.

In Fort Howard Paper Co. v. Fort Howard Corp., 273 Wis. 356, 360, 77 N.W.2d 733, 735, the court reasserted its definition of mootness as follows:

"This court in its decision in Wisconsin E. R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 440, 32 N.W.2d 190, stated:

" 'A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in realty there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy.' "

In considering the question of mootness, when constitutional or public juris questions are involved, this court has on occasion reached the issues presented. However, consideration of constitutional issues as they apply to other persons or other situations is guarded and limited.

In Cohen v. Towne Realty, Inc., 54 Wis.2d 1, 4-5, 194 N.W.2d 298, 300 (1972), we quoted the United States Supreme Court as follows:

" '. . . This Court, as is the case with all federal courts, "has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. " Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional' " 2

We are not persuaded to reach the constitutional question as to whether the false communication disciplinary rule violates the First Amendment as being overbroad and vague because a subsequent department directive limited the application of the rule. The directive provides as follows:

"TO: Wardens & Superintendents

Adult Institutions

"FROM: Andrew A. Basinas, Director

Bureau of Institutions

"RE: Rule 5.04--False Communication

"Effective immediately, Rule 5.04 (False Communication) is to be used to regulate only those activities that bear a direct effect on the integrity, safety, and security of the institution. The rule is designed to regulate those activities noted in the Manual of Adult Resident Status and Penalties, i.e., lying about and/or presenting counterfeit, forged, or altered records, pass slips, canteen slip, coupons, or any other documents, or communications to the institution, Division or Departmental administration which are intended to incite administrative action. It is not to be used to regulate private communication through correspondence, whether privileged or nonprivileged."

This directive, if followed in future cases, will present essentially different considerations to a challenge that the First Amendment has been violated.

We conclude the issues presented in this case are moot and the appeal should be dismissed.

Appeal dismissed.

ABRAHAMSON, Justice (dissenting).

Paul Ellenburg was an inmate of the Wisconsin Correctional Institution at Fox Lake. On June 23, 1973, Ellenburg conferred with Associate Wardens Boorman and Ellsworth concerning his complaints about the institution, and the Associate Wardens requested that Ellenburg make his allegations in writing. On June 26, 1973, Ellenburg presented Boorman and Ellsworth with a nine-page verified document specifying acts of misconduct by specific staff members of the Institution. Ellenburg's written report was submitted to the Warden and to the following persons: "Attorney General, U.S. Department of Justice, Governor Patrick Lucey, Attorney General Dodge County Court House, (Associate Warden) Mr. Boorman, (Associate Warden) Mr. Ellsworth, Paul Ellenberg (sic)." Ellenburg did not, in any way or at any time, discuss these charges with his fellow inmates.

Darrell Kolb, Director of Security for the Division of Corrections, and George Hartman, legal counsel at the Wisconsin State Prison, investigated the charges made by Ellenburg and concluded that Ellenburg's verified complaint was false. On July 30, 1973, the Warden issued a conduct report charging Ellenburg with making unfounded and false statements regarding staff members. 1 The Rules of the Inmate Complaint Review System provide that no resident will be disciplined for filing a complaint or otherwise pursuing a remedy in the complaint review system. The Warden and trial court held that this rule protecting a complainant did not apply to Ellenburg because he did not put his complaint on the proper form or file his complaint with the designated Institution Complaint Investigator (who reports to the Warden) according to the complaint review system.

On August 6, 1973, a disciplinary hearing was convened to hear the Warden's charges against Ellenburg. The warden the complaining party here appointed the Disciplinary Committee. The Disciplinary Committee chosen to hear the case consisted of Captain Van Haren, social worker Stanley Ries, and staff psychologist Dr. Edward Goldenberg. 2 Ellenburg was present at the hearing, and he was represented by a staff lay advocate. The Committee rejected Ellenburg's request that he be represented by retained counsel. The Committee rejected Ellenburg's request that he be permitted to examine prison records pertaining to the charges in his June 26 document. Ellenburg did not have access to the investigatory report prepared by Kolb and Hartman referred to above. Nor did Ellenburg have information concerning other sources upon whom the Committee relied.

One of the members of the Disciplinary Committee, Dr. Goldenberg, argued that the matter should not be...

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