State ex rel. Nichols v. Litscher, 00-0853-W.

• Decision Date: 06 November 2001
• Docket Number: No. 00-0853-W.,00-0853-W.
• Citation: 2001 WI 119,635 N.W.2d 292,247 Wis.2d 1013
• Parties: STATE of Wisconsin EX REL. Eugene NICHOLS, Petitioner, v. Jon LITSCHER, Secretary, Wisconsin Department of Corrections and Rick Hudson, Warden, North Fork Correctional Facility, Respondents.
• Court: Wisconsin Supreme Court

247 Wis.2d 1013

2001 WI 119

635 N.W.2d 292

STATE of Wisconsin EX REL. Eugene NICHOLS, Petitioner, v. Jon LITSCHER, Secretary, Wisconsin Department of Corrections and Rick Hudson, Warden, North Fork Correctional Facility, Respondents.

No. 00-0853-W.

Supreme Court of Wisconsin.

Oral argument September 14, 2001.

Decided November 6, 2001.

For the petitioner there were briefs by Jeffrey O. Davis, Daniel J. La Fave and Quarles & Brady LLP, Milwaukee, and oral argument by Daniel J. La Fave.

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.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, Eugene Nichols, seeks reinstatement of his petition for review that was previously dismissed as untimely filed. He asserts that his petition should be deemed "filed" as of the date that he delivered it to prison authorities for mailing to this court. Although we do not adopt Nichols' definition of "filed," we nevertheless determine 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. Accordingly, we grant Nichols' requested relief and reinstate his petition for review.

I

¶ 2. The parties have agreed to the facts necessary to our decision in this case. Nichols is a prisoner convicted in Wisconsin who is incarcerated in the North Fork Correctional Facility ("North Fork") in Sayre, Oklahoma. On January 26, 2000, the court of appeals in an unpublished decision affirmed his conviction for battery by a prisoner. Nichols received a copy of the court of appeals decision on January 28. Wisconsin Stat. § 808.10 (1999-2000)¹ states that a petition for review must be "filed in the supreme court within 30 days of the date of the decision of the court of appeals," making Nichols' petition for review due on February 25, 2000.

¶ 3. Nichols gave his petition for review to the North Fork librarian for copying on February 15, 2000, ten days before the petition's due date. In an affidavit, the librarian stated that prisoner copy requests normally take "between three and seven days" to fill because the prison must first verify whether the prisoner has sufficient funds to pay for the copies.

¶ 4. The librarian returned copies of the petition for review to Nichols in the afternoon of Friday, February 18, 2000. In his habeas petition, Nichols averred that it was too late to mail the petition for review that day because "mail only leaves the institution in the morning." He was unable to mail the petition on Saturday, February 19, because the prison mailroom was not open on Saturdays. Thus, on February 21, a Monday, Nichols delivered his petition for review, properly addressed, to the North Fork mailroom. A North Fork corrections officer processed Nichols' petition for priority mailing. It appears that the petition may not have been mailed until the following day. In an affidavit, the corrections officer that processed Nichols' petition stated that "mail leaving this institution typically does not arrive at its destination before four to ten days have elapsed."

¶ 5. The clerk of this court received Nichols' petition for review on February 28, 2000, one business day late. His petition was dismissed as untimely in a February 29 order. On March 24, 2000, Nichols filed a petition for a writ of habeas corpus in this court, asking that we consider his petition for review on its merits because he had acted "diligently and swiftly" in attempting to file the petition. He noted that his petition was mailed early enough that it should have arrived with time to spare.

¶ 6. We initially denied Nichols' habeas petition. He moved for reconsideration, arguing that any delay in the filing of his petition for review was due to prison officials' inadvertence or to prison policies and practices. Under such circumstances, Nichols argued, a petition should be considered "filed" when it is turned over to prison authorities for mailing. In his motion for reconsideration, Nichols referred this court to a then recently issued court of appeals decision, State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409. In Shimkus, the court determined that when a prison inmate deposits a certiorari petition in a prison mail receptacle, the 45-day time limit to file the certiorari action must be tolled. Id. at ¶ 14. We granted Nichols' motion for reconsideration.

II

¶ 7. The question before us is whether this court may consider a pro se prisoner's petition for review when the petition was received by the clerk more than 30 days after the date of the court of appeals decision from which the prisoner sought review. In addressing this question, we initially examine both a statute enacted by the legislature and a rule promulgated under this court's rule-making authority. Ultimately, however, our determination is rooted in a review of the rationales and conclusions of prior cases.

III

[1]

¶ 8. Nichols argues that this court should adopt a "prison mailbox" rule with regard to the deadline to file a petition for review under § 808.10 and Wis. Stat. § (Rule) 809.62(1). Section 808.10 states:

Review by the supreme court. A decision of the court of appeals is reviewable by the supreme court only upon a petition for review granted by the supreme court. The petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals.

Section (Rule) 809.62(1) states in relevant part:

A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to s. 808.10 within 30 days of the date of the decision of the court of appeals.

In asking that we adopt a "prison mailbox" rule, Nichols argues that his petition for review should be considered "filed" for purposes of § 808.10 and § (Rule) 809.62(1) at the time that he delivered his petition to prison authorities for mailing.

¶ 9. As an alternative argument, Nichols asserts that this court should conclude that § 808.10 and § (Rule) 809.62(1) are unconstitutional as applied. He asserts that the State has effectively deprived him of his statutory 30-day filing period, and that this deprivation violates his constitutional rights to equal protection and due process.²

¶ 10. The State disagrees with Nichols that a prison mailbox rule is necessary to save § 808.10 and § (Rule) 809.62(1) from constitutional infirmity. It asserts that the 30-day period is long enough to mitigate any differential impact that incarceration may have on pro se prisoners. However, the State agrees with Nichols that § 808.10 and § (Rule) 809.62(1) could "reasonably be construed to encompass a `prison mailbox rule.'" Nevertheless, both the State and Nichols acknowledge that on its face, such an interpretation may be strained.

¶ 11. We decline to interpret the term "file" in § 808.10 and § (Rule) 809.62(1) to mean "deposit in a prison mailbox." We agree that such an interpretation may strain the plain language of both the statute and the rule. In addition, such a construction of the word "file" seemingly conflicts with language in our prior decisions.

[2, 3]

¶ 12. As both parties acknowledge, we have in the past concluded that "[i]f the clerk of this court does not receive the petition for review for filing within that 30 days, this court is deprived of subject matter jurisdiction to review [a court of appeals] decision." St. John's Home v. Continental Cas. Co., 150 Wis. 2d 37, 43, 441 N.W.2d 219 (1989) (emphasis added); see also First Wis. Nat'l Bank v. Nicholaou, 87 Wis. 2d 360, 362, 274 N.W.2d 704 (1979). We have explained:

The clerk of this court has been designated to receive petitions for review as well as other documents for filing. These documents can either be hand delivered to the clerk's office ... or mailed to [the clerk's address]. Whatever method of delivery is used, a petition for review must be physically received in the clerk's office within 30 days of the filing of the court of appeals' decision that is to be reviewed.

St. John's, 150 Wis. 2d at 42-43 (citations omitted). In Gunderson v. DOT, 106 Wis. 2d 611, 615, 318 N.W.2d 779 (1982), we reiterated that "the filing of a petition does not occur upon its mailing."

¶ 13. We reaffirm the general vitality of the petition for review filing requirements as outlined in Nicholaou, Gunderson, and St. John's. However, this does not mean that Nichols is without relief.

¶ 14. In a recent court of appeals decision, Shimkus,2000 WI App 238, a pro se prisoner, Mark Shimkus, sought circuit court certiorari review of a prison disciplinary committee decision pursuant to Wis. Stat. § 893.735.³ Under § 893.735, a prisoner seeking such review generally has 45 days from the date of a final administrative decision to file an action in circuit court for review. Although Shimkus placed his petition for a writ of certiorari in prison mail 12 days prior to the 45-day deadline, the clerk of court did not receive his petition until three days after the deadline. Id. at ¶ 3. The circuit court dismissed Shimkus's petition as untimely filed. Id.

¶ 15. The court of appeals reversed, concluding that when a prison inmate deposits a certiorari petition in a prison mail receptacle, the 45-day time limit to file the certiorari action must be tolled. Shimkus, 2000 WI App 238, ¶ 14. In reaching this conclusion, the court relied heavily on the rationale in the Supreme Court's decision in Houston v. Lack, 487 U.S. 266 (1988).

¶ 16. In Houston, 487 U.S. at 270-71, the Supreme Court explained the obstacles that pro se prisoner litigants face in filing documents. The Court stated:

Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the

...