State ex rel. Parker v. Fiedler

• Decision Date: 22 November 1993
• Docket Number: No. 93-0709,93-0709
• Citation: 180 Wis.2d 438,509 N.W.2d 440
• Parties: , 62 USLW 2420 STATE of Wisconsin, ex rel., Elnora PARKER, Petitioner-Appellant, Carol A. Arendt, Petitioner, v. Patrick J. FIEDLER, in his capacity as Secretary of the Department of Corrections of the State of Wisconsin and Gerald Miles Turner, Jr., Respondents-Respondents. * STATE of Wisconsin, ex rel. E. Michael McCANN, District Attorney, Milwaukee County, Wisconsin, and Frederick G. Gordon, Alderman of the City of Milwaukee, Wisconsin, Petitioners-Appellants, v. Patrick J. FIEDLER, in his capacity as Secretary of the Department of Corrections of the State of Wisconsin and Gerald Miles Turner, Jr., Respondents-Respondents. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 440

509 N.W.2d 440

180 Wis.2d 438, 62 USLW 2420

STATE of Wisconsin, ex rel., Elnora PARKER, Petitioner-Appellant, Carol A. Arendt, Petitioner, v. Patrick J. FIEDLER, in his capacity as Secretary of the

Department of Corrections of the State of

Wisconsin and Gerald Miles Turner, Jr.,

Respondents-Respondents.

^*

STATE of Wisconsin, ex rel. E. Michael McCANN, District

Attorney, Milwaukee County, Wisconsin, and

Frederick G. Gordon, Alderman of the

City of Milwaukee, Wisconsin, Petitioners-Appellants, v. Patrick J. FIEDLER, in his capacity as Secretary of the

Department of Corrections of the State of

Wisconsin and Gerald Miles Turner, Jr.,

Respondents-Respondents.

No. 93-0709.

Court of Appeals of Wisconsin.

Oral Argument Nov. 22, 1993.

Opinion Filed Nov. 30, 1993.

Opinion Released Nov. 30, 1993.

Before SULLIVAN, FINE and SCHUDSON, JJ.

FINE, Judge.

This is an appeal from the trial court's consolidated judgment dismissing proceedings commenced by the filing of petitions for writs of certiorari. Relators sought an order directing the secretary of the Department of Corrections to recalculate the mandatory release date of Gerald Miles Turner, Jr.

In 1975, Turner was convicted of violating secs. 940.02 (second-degree murder), 944.11(1) (indecent behavior with a child), 944.12 (enticing a child for immoral purposes), and 944.17(1) (sexual perversion), Stats. (1973), as the result of his sexual molestation and murder of nine-year old Lisa French. He was sentenced to serve an indeterminate term in the Wisconsin State Prisons of not more than thirty-eight and one-half years. Turner was released from prison on October 14, 1992, after serving fewer than eighteen years. The release was under the purported authority of section 53.11(7), Stats. (1973), which requires the release on parole of a prisoner who has "served the term for which he has been sentenced ... less good time earned under this chapter and not forfeited as herein provided." ¹

According to the petition filed by E. Michael McCann, district attorney of Milwaukee County, and Frederick G. Gordon, a member of the Milwaukee Common Council, Turner is an "unrepentant, apparently homicidal pedophile" whose "perverted lust perhaps unsated and certainly untreated for over a decade and a half behind bars" makes him extremely dangerous. These allegations have not been controverted. The McCann/Gordon petition further alleges, also without contradiction, that Turner has consistently been denied discretionary parole, and would not have been released from prison if the Department had not calculated Turner's good time in a way the Relators contend violates section 53.11, Stats. (1973). ²

Relators' contention that the Department unlawfully calculated Turner's good time focuses on the Department's long-standing practice of awarding a prisoner the "good time" authorized by section 53.11(1), Stats. (1973) upon the prisoner's entry into prison, rather than as it is earned. This, the Relators contend, conflicts with the statute. In an oral decision, the trial court concluded that although the Relators had standing to challenge the Department's calculation of Turner's mandatory release date, the Department's calculation was not inconsistent with the statute. Our review is de novo. See State v. Robertson, 174 Wis.2d 36, 41, 496 N.W.2d 221, 223 (Ct.App.1993). For the reasons discussed below, we reversed the trial court's judgment on November 22, 1993. ³

There are four issues on this appeal: first, whether the Relators have standing to maintain this action; second, whether certiorari is the appropriate remedy; third, whether the Department's formula conflicts with the statute; fourth, whether the Department's formula must be retained because of principles that implicate the prohibition against ex post facto laws.

1. Standing.

It is a fundamental tenet of our law that persons without a stake in a controversy lack standing to seek judicial resolution of that controversy. See Mast v. Olsen, 89 Wis.2d 12, 16, 278 N.W.2d 205, 206-207 (1979); see also Baker v. Carr, 369 U.S. 186, 187, 204-208, 82 S.Ct. 691, 694, 703-05, 7 L.Ed.2d 663 (1962) (voters have standing to challenge the apportionment of the Tennessee General Assembly and the alleged resulting " 'debasement of their votes' " (citation omitted)). Although the concept of standing has been accurately described as " 'amorphous,' " see Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968) (quoting Professor Paul A. Freund), certain principles are apparent from the cases.

The Wisconsin rule of standing envisions a two-step analysis conceptually similar to the analysis required by the federal rule [of standing]. The first step under the Wisconsin rule is to ascertain whether the decision of the agency directly causes injury to the interest of the petitioner. The second step is to determine whether the interest asserted is recognized by law. This approach is similar to the two-pronged standing analysis outlined by the United States Supreme Court in Data Processing Service v. Camp [397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ] and Barlow v. Collins [397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) ] as follows: (1) Does the challenged action cause the petitioner injury in fact? and (2) is the interest allegedly injured arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question?

Wisconsin's Environmental Decade, Inc. v. Public Serv. Comm'n, 69 Wis.2d 1, 10, 230 N.W.2d 243, 248 (1975) (footnotes omitted).

Milwaukee Brewers Baseball Club v. Department of Health and Social Services, 130 Wis.2d 56, 65-70, 387 N.W.2d 245, 248-250 (1986), reaffirmed the two-step test enunciated in Wisconsin's Environmental Decade, and held that the Milwaukee Brewers had standing to challenge an environmental impact statement that approved the construction of a prison close to the Brewers' stadium. Id., 130 Wis.2d at 70, 387 N.W.2d at 250-251. The court determined that allegations that the prison would add to traffic congestion near the stadium was sufficient to give the Brewers standing because "increased traffic congestion" was one of the harms against which the Wisconsin Environment Protection Act protected. Milwaukee Brewers, 130 Wis.2d at 69-70, 387 N.W.2d at 250. Milwaukee Brewers specifically noted that "[i]n Wisconsin, the law of standing is to be construed liberally," and that " '[w]here an actual injury is demonstrated, even a "trifling interest" may be sufficient to confer standing.' " Id., 130 Wis.2d at 64-65, 387 N.W.2d at 248 (citation omitted). Thus, as Wisconsin's Environmental Decade had explained a decade earlier:

[T]he law of standing in Wisconsin should not be construed narrowly or restrictively. This court has held that the review provisions of ch. 227, Stats., are to be liberally construed. As Professor Kenneth Culp Davis has commented:

"The only problems about standing should be what interests deserve protection against injury, and what should be enough to constitute an injury. Whether interests deserve legal protection depends upon whether they are sufficiently significant and whether good policy calls for protecting them or for denying them protection."

Wisconsin's Environmental Decade, 69 Wis.2d at 13, 230 N.W.2d at 249 (footnotes omitted).

The federal law of standing similarly applies the doctrine in a way to open, rather than close, the doors to the courthouse. Although the federal cases are not binding on us, they "are certainly persuasive as to what the rule should be." Wisconsin's Environmental Decade, 69 Wis.2d at 11, 230 N.W.2d at 248.

Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), permitted sellers of data-processing services to challenge a ruling by the Comptroller of the Currency that allowed national banks to offer data-processing as an ancillary service to their banking business. 397 U.S. at 151. As competitors of the banks' data-processing business, the sellers satisfied the "injury in fact" aspect of the test for standing. Id., 397 U.S. at 152, 90 S.Ct. at 829. In so holding, the Court departed from an earlier test that required as a condition of standing that the " 'the right invaded [be] a legal right,--one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.' " Id., 397 U.S. at 153, 90 S.Ct. at 830 (quoting Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 137-138, 59 S.Ct. 366, 369-70, 83 L.Ed. 543 (1939)). Data Processing Service explained that the "legal interest test" more properly went to the merits of the dispute, and that the question of standing appropriately turned on "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 153, 90 S.Ct. at 829. The Court explained:

That interest, at times, may reflect "aesthetic, conservational, and recreational" as well as economic values. A person or a family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. We mention these noneconomic values to emphasize that standing may stem from them as well as from economic injury on which [the sellers of data-processing services] rely here.

Id., 397 U.S. at 154, 90 S.Ct. at 830 (citations omitted).

Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), decided the same day as Data Processing Service, emphasized that judicial review of challenged agency action was the rule, not the exception, pointing out that "[t]he right of judicial review is ordinarily inferred where congressional intent to protect the interests of the class of which the plaintiff is a member can be found; in such cases, unless members...