State ex rel. Johnson v. Litscher

• Decision Date: 18 January 2001
• Docket Number: No. 00-1485.,00-1485.
• Citation: 2001 WI App 47,241 Wis.2d 407,625 N.W.2d 887
• Parties: STATE of Wisconsin EX REL. Earl JOHNSON, Petitioner-Appellant, v. Jon E. LITSCHER and Thomas G. Borgen, Respondents-Respondents.
• Court: Wisconsin Court of Appeals

241 Wis.2d 407

2001 WI App 47

625 N.W.2d 887

STATE of Wisconsin EX REL. Earl JOHNSON, Petitioner-Appellant, v. Jon E. LITSCHER and Thomas G. Borgen, Respondents-Respondents.

No. 00-1485.

Court of Appeals of Wisconsin.

Submitted on briefs December 7, 2000.

Decided January 18, 2001.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Earl Johnson, pro se.

On behalf of the respondents-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, and Richard A. Victor, assistant attorney general.

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

¶ 1. ROGGENSACK, J.

Earl Johnson, who is incarcerated at Fox Lake Correctional Institution (FL CI), appeals an order dismissing his petition for certiorari, which seeks review of a disciplinary committee decision that was affirmed by Thomas Borgen, the superintendent of the John C. Burke Correctional Center (JCBCC)¹ and Jon Litscher, the Secretary of the Department of Corrections. The circuit court determined that because Johnson filed his petition for certiorari more than forty-five days after Litscher had issued his final decision on Johnson's appeal, his action must be dismissed and the writ quashed. We disagree because we conclude that even though the petition was filed more than forty-five days after Litscher's decision, on the record before us, Johnson proved the number of days that elapsed between the decision and his receipt of it. We also conclude that the record discloses no circumstances that would make it a proper exercise of discretion not to extend the time for filing the petition under WIS. STAT. § 893.735(2) (1999-2000).² Accordingly, we reverse the order of the circuit court and remand the petition for a decision on the merits.

BACKGROUND

¶ 2. While an inmate at JCBCC, Johnson received a conduct report for the use of intoxicants in violation of WIS. ADMIN. CODE § DOC 303.59. After a hearing before the disciplinary committee, he was found guilty. He appealed to Borgen, who affirmed the committee. On August 20, 1999, when Litscher also affirmed, Johnson had exhausted all administrative remedies available to him. ¶ 3. Johnson filed a petition for a writ of certiorari in the circuit court on November 18, 1999,³ and the circuit court issued the writ. However, on May 17, 2000, after the timeliness of Johnson's petition was first raised in the brief of Litscher and Borgen, the circuit court, treating the brief as a motion to dismiss, concluded that Johnson was barred from commencing a certiorari action because he had filed it more than forty-five days after August 20, 1999. As a result, the circuit court dismissed the action and quashed the writ. Johnson claims on appeal, as he did in his petition for a writ of certiorari, that despite repeated inquiries into the status of his appeal of the disciplinary committee's decision, he did not receive notice of Litscher's decision until October 16, 1999. Accordingly, he appeals the order of the circuit court dismissing his petition.

DISCUSSION

Standard of Review.

[1]

¶ 4. A motion to dismiss for failure to meet a statute of limitations can be decided on the sufficiency of the facts alleged in the petition when combined with those facts asserted by the response when there is no conflict. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 312, 533 N.W.2d 780, 784 (1995)

. When a circuit court decides a motion to dismiss for failure to comply with a statute of limitations by considering matters outside the four square corners of the pleadings, it is actually deciding a motion for summary judgment. WISCONSIN STAT. § 802.06(2)(b); see Carlson v. Pepin County, 167 Wis. 2d 345, 351, 481 N.W.2d 498, 500 (Ct. App. 1992). The grant or denial of summary judgment is an issue of law that we review de novo, applying the same methodology as the circuit court. Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 5, 234 Wis. 2d 335, 340, 610 N.W.2d 129, 132.

Order of Dismissal.

[2]

¶ 5. Failure to timely file a petition for certiorari under WIS. STAT. § 893.735 may result in dismissal. State ex rel. Collins v. Cooke, 2000 WI App 101, ¶ 5, 235 Wis. 2d 63, 67, 611 N.W.2d 774, 776. Section 893.735 governs the time within which a prisoner may begin an action challenging a governmental decision or disposition. It provides in relevant part:

(2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition (emphasis added).

¶ 6. Litscher and Borgen argue that the circuit court correctly dismissed Johnson's action as untimely because Johnson did not file it until November 18, 1999, ninety-one days after they claim he had received Litscher's decision of August 20, 1999, and forty-six days after the statutory deadline had expired. However, they filed no motion to dismiss or motion for summary judgment of dismissal, nor did they file an affidavit or other proof of service⁴ from the person whom they assert gave a copy of Litscher's decision to Johnson. Instead, they merely raised the issue in their trial brief and relied completely on the date of Litscher's decision and the date Johnson's petition was accepted for filing.

¶ 7. Johnson's petition, on the other hand, was a sworn, notarized statement. It asserted that he did not receive notice of Litscher's decision until long after August 20, 1999, by relating that:

14. On August 6, 1999, by certified mail the petitioner filed a [sic] appeal with the corrections complaint examiner.

15. On August 22 and August 30, 1999, the petitioner sent two letter [sic] to the correction complaint examiner requesting that they acknowledge receipt of his complaint, no responses.

16. On October 11, 1999 the petitioner filed a motion with the secretary and the corrections complaint examiner requesting that they grant him a written decision, this motion was support [sic] by a signed affidavit. A copy of this motion and affidavit was sent via mail to, Richard A. Thieme, Clerk, Dodge County Circuit Court on October 12, 1999.

17. On October 16, 1999, the petitioner received a letter from a William D. Ridgely stating that the secretary made a final decision on my appeal August 30, 1999, [sic] and further stated that the Fox Lake Correctional Institutional Complaint Examiner, Tom Gozinski should have notified the petitioner with a copy of the secretary [sic] August 30, 1999 written decision.

18. On October 18, 1999, the petitioner sent a written notice to the secretary and William Ridgely, and Tom Gozinski stating that he have [sic] not received a written decision that he is entitle [sic] to according to the DOC-310.

¶ 8. Johnson also attached to his petition several documents supporting his statements that he did not receive notice of Litscher's decision until at least October 16, 1999, and that no written copy of the decision was provided until approximately October 19, 1999. These include: (1) Johnson's August 30, 1999, letter to Tom Gozinski, ICE at FLCI, requesting acknowledgement of his appeal of the disciplinary committee decision, complaint file # FLCI-1999-50452; (2) an Inmate Interview/Information Request form completed by Johnson and dated October 6, 1999, asking Gozinski to help him get a decision from Litscher and for advice about what to do if he does not get a decision in the time set forth in the DOC rules;⁵ (3) Johnson's affidavit, dated October 11, 1999, requesting a written decision on his appeal of the disciplinary committee decision; (4) a letter dated October 11, 1999, from Johnson to Litscher requesting a written decision; and (5) letters dated October 17, 1999, from Johnson to Litscher, Gozinski, DOC Assistant Administrator William Ridgely, and FLCI Lieutenant Maxwell, each stating that he had not received a copy of a decision by Litscher.

¶ 9. It is not clear to us on what evidentiary basis the circuit court relied for its determination that Johnson's petition was untimely. Apparently it did not consider his verified petition and attachments as proof under WIS. STAT. § 893.735(2) of the number of days that had elapsed between Litscher's decision and Johnson's actual notice of that decision. The statute does not establish how a...