State ex rel. Luedtke v. Bertrand

• Decision Date: 11 June 1998
• Docket Number: Nos. 97-3238-,98-0107-W,s. 97-3238-
• Citation: 583 N.W.2d 858,220 Wis.2d 574
• Parties: STATE of Wisconsin ex rel. James D. LUEDTKE, Petitioner, v. Daniel BERTRAND, Respondent. d STATE of Wisconsin ex rel. Jerry P. DOWDLEY, Jr., Petitioner, v. CIRCUIT COURT FOR DANE COUNTY and the Honorable Richard J. Callaway, presiding, Respondents.
• Court: Wisconsin Court of Appeals

Page 858

583 N.W.2d 858

220 Wis.2d 574

STATE of Wisconsin ex rel. James D. LUEDTKE, Petitioner, v. Daniel BERTRAND, Respondent. ^d

STATE of Wisconsin ex rel. Jerry P. DOWDLEY, Jr., Petitioner, v. CIRCUIT COURT FOR DANE COUNTY and the Honorable Richard J.

Callaway, presiding, Respondents.

Nos. 97-3238-W, 98-0107-W.

Court of Appeals of Wisconsin.

Submitted on Petitions Feb. 11, 1998.

Opinion Released June 11, 1998.

Opinion Filed June 11, 1998.

[220 Wis.2d 577] On behalf of the petitioner, State ex rel. James D. Luedtke, the cause was submitted on the petition of James D. Luedtke, pro se, of Green Bay.

On behalf of the petitioner, State ex rel. Jerry R. Dowdley, Jr., the cause was submitted on the petition of Jerry P. Dowdley, pro se, of Green Bay.

On behalf of the respondent, Daniel Bertrand, the cause was submitted on the petition of James E. Doyle, Attorney General, and Charles D. Hoornstra, Assistant Attorney General.

On behalf of the respondent, Circuit Court for Dane County and the Honorable Richard J. Callaway, the cause was submitted on the petition of James E. Doyle, Attorney General, and James H. McDermott, Assistant Attorney General.

Before DYKMAN, P.J., VERGERONT and ROGGENSACK, JJ.

DYKMAN, Presiding Judge.

James D. Luedtke and Jerry P. Dowdley, Jr. petition for supervisory writs directing circuit courts to grant their petitions to commence certiorari actions under § 814.29, STATS., without payment of fees.

With regard to Luedtke's certiorari petition, we conclude that the circuit court erred by: (1) applying a discretionary standard to the issue of whether the petition states a claim; and (2) failing to consider possible collateral consequences of prison discipline when it rejected the petition. Regarding Dowdley's certiorari petition, we conclude that the circuit court erred by: (1) applying an inappropriately strict standard in determining that the petition failed to allege error by the disciplinary committee; and (2) determining that the petition failed to allege actionable harm. Therefore, we grant both petitions.

LEGAL STANDARD

The circuit court may deny a fee waiver petition if the proposed action states "no claim upon which the court may grant relief." See § 814.29(1)(c), STATS. However, if the proposed action states a claim and the individual seeking a fee waiver is indigent, then the court must accept the action for filing without payment of fees. See State ex rel. Hansen v. Circuit Court, 181 Wis.2d 993, 997-98, 513 N.W.2d 139, 141 (Ct.App.1994).

The fee waiver statute's standard for deciding whether a proposed action states a claim is the same standard that is applied when considering a motion to dismiss in an ordinary civil case for "[f]ailure to state a claim upon which relief can be granted." See § 802.06(2)(a)6, STATS. In Wisconsin, a civil pleading need not define issues or state detailed facts; only "fair notice" is required. Hertlein v. Huchthausen, 133 Wis.2d 67, 72, 393 N.W.2d 299, 301 (Ct.App.1986). Thus, a complaint should be dismissed as legally insufficient "only if it is quite clear that under no condition can a plaintiff recover." Jensen v. Christensen & Lee Ins., Inc., 157 Wis.2d 758, 763-64, 460 N.W.2d 441, 443 (Ct.App.1990). This principle applies especially to pro se pleadings such as those here, because pro se complaints of prisoners must be construed liberally in determining whether stated facts give rise to a cause of action. See Lewis v. Sullivan, 188 Wis.2d 157, 161, 164-65, 524 N.W.2d 630, 631, 632-33 (1994). Further, if the facts pleaded reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action. See Hillcrest Golf & Country Club v. City of Altoona, 135 Wis.2d 431, 434-35, 400 N.W.2d 493, 495 (Ct.App.1986). The facts pleaded must be taken as true, but legal conclusions need not be accepted. Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660, 664 (1979). Whether a claim for relief exists is a question of law that we determine independently. Paskiet v. Quality State Oil Co., 164 Wis.2d 800, 805, 476 N.W.2d 871, 873 (1991).

No. 97-3238-W LUEDTKE

Background

Luedtke submitted a petition for certiorari to the circuit court, together with a petition to waive filing fees. See § 814.29, STATS. Luedtke sought to challenge a penalty of seven days' loss of recreational privileges that was imposed in a prison disciplinary proceeding. The circuit court denied Luedtke's petition to waive filing fees because it found that his proposed certiorari petition failed to state a claim. Specifically, the court held that granting of the writ is discretionary, that the petition must show, among other things, that the petitioner suffered substantial harm, and that Luedtke's allegation of seven days' loss of recreational privileges did not satisfy the "substantial harm" element set forth for the grant of a petition for a writ under State ex rel. Sahagian v. Young, 141 Wis.2d 495, 501, 415 N.W.2d 568, 571 (Ct.App.1987).

Luedtke filed a notice of appeal from the order denying his fee waiver petition. Because no action was commenced, the order could not be appealed as of right. See State ex rel. Staples v. DHSS, 130 Wis.2d 285, 287, 387 N.W.2d 118, 120 (Ct.App.1986). However, when a notice of appeal is filed under these circumstances, we may construe it as a petition for a writ of mandamus. Id. at 287-88, 387 N.W.2d at 120. We did so in this case and ordered a response by the respondent circuit court under RULE 809.51(2), STATS.

In our order, we required the respondent circuit court to advise us "when an inmate suffers substantial harm such that certiorari review of the disciplinary proceedings is warranted--at what point does the penalty imposed by the adjustment committee cross the threshold into 'substantial harm.' " The circuit court replied that as a matter of law, the penalty imposed here did not amount to "substantial harm."

Discussion

There is an important distinction between whether a certiorari petition states a claim for relief, and therefore must be permitted to be filed under the fee waiver statute, and whether the petitioner is ultimately entitled to relief on the merits. The petition for a writ is analogous to a complaint. The standard for deciding whether the petition is sufficient to order a return is the same standard used for deciding whether a complaint states a claim. See, e.g., State ex rel. Hansen v. Circuit Court, 181 Wis.2d 993, 997-98, 513 N.W.2d 139, 141 (Ct.App.1994).

In denying Luedtke's fee waiver petition because he failed to state a claim, the circuit court relied on State ex rel. Sahagian v. Young, 141 Wis.2d 495, 415 N.W.2d 568 (Ct.App.1987), when it concluded that the granting of a writ of certiorari is discretionary. However, Sahagian does not hold that the court should employ a discretionary standard in determining whether a certiorari petition states a claim. In Sahagian, after the certiorari petition was filed, the court ordered the return of the record. ¹ After the return was filed, the court denied the petitioner the relief sought on the merits. In reversing that denial, we stated that "a writ of certiorari is not a writ of right but rather is one which is discretionary with the court." Id. at 501, 415 N.W.2d at 571. This language, however, pertains only to the circuit court's ultimate decision on certiorari. It does not apply to the initial question of whether the petition states a claim. Rather, the "discretionary" standard in Sahagian applies to a later stage in the process, when the court must determine whether to grant the relief sought. Thus, the circuit court erred by relying on this "discretionary" language to deny Luedtke's petition for a fee waiver.

We turn now to whether Luedtke's certiorari petition states a claim. This is a question of law that we review without deference to the circuit court. Paskiet v. Quality State Oil Co., 164 Wis.2d 800, 805, 476 N.W.2d 871, 873 (1991). The court held that the loss of seven days of recreational privileges did not satisfy the "substantial harm" element of certiorari. See Sahagian, 141 Wis.2d at 501, 415 N.W.2d at 571. In order to state a claim, the certiorari petition must make sufficient factual allegations in relation to all elements of the relief sought, including the element of substantial harm. However, as discussed above, detailed facts need not be pleaded, and the standard to be applied at this stage is liberal--the petition may be dismissed only if it is quite clear that no relief can be had under any legal theory. As Sahagian states, "[t]he petition for the writ is not the full development of the petitioner's position." Id.

When prisoners seek review of disciplinary proceedings, the imposed punishment has usually commenced, and may have been entirely served. ² However, in addition to the specific penalty imposed, a prison disciplinary decision may have collateral consequences relating to security classification, program assignment, later disciplinary proceedings, and the possible extension of the inmate's mandatory release date. ³ As set forth in the accompanying footnote, the collateral consequences may rise to constitutional dimension. Among the remedies available on certiorari review is expungement of the disciplinary record, which grants relief from these collateral consequences. See, e.g., Irby v. Macht, 184 Wis.2d 831, 847, 522 N.W.2d 9, 15 (1994). Therefore, in deciding whether a certiorari petition states a claim, a circuit court must take into account that there may be collateral consequences in addition to the specific penalty imposed. We therefore conclude that it is not clear that Luedtke is entitled to no relief. In other words, Luedtke's certiorari petition meets the legal standard for stating a claim, and the court erred by denying his petition for a fee waiver. ⁴ Although it may be that under this standard many certiorari petitions for review of prison disciplinary decisions will make...