State ex rel. Peckham v. Krenke

Decision Date04 August 1999
Docket NumberNo. 97-3359.,97-3359.
Citation601 N.W.2d 287,229 Wis.2d 778
PartiesSTATE of Wisconsin EX REL. Jane PECKHAM, Petitioner-Appellant, v. Kristine KRENKE, Warden, Respondent-Respondent.
CourtWisconsin Court of Appeals

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

On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Charles D. Hoornstra, assistant attorney general.

Before Brown, P.J., Nettesheim and English,1 JJ.


Jane Peckham, an inmate at the Taycheedah Correctional Institution (TCI), appeals from an order affirming the disciplinary action taken against her by Warden Kristine Krenke for disobeying orders and committing fraud. Peckham alleges that her legal mail was opened outside of her presence in violation of administrative rules; therefore, the evidence obtained from the unlawful mail opening cannot serve as the basis for the disciplinary action against her.

Although we agree that Peckham's legal mail was opened outside of her presence in violation of administrative rules, the violation is not of constitutional dimension and does not implicate any statute or rule that would require the exclusion of the mail from evidence during the disciplinary process. We therefore conclude that it properly was considered during Peckham's disciplinary proceedings. As for Peckham's remaining arguments, we find they are either waived or without merit. Accordingly, we affirm the circuit court's decision upholding the disciplinary action.


Peckham was issued a conduct report for allegedly violating WIS. ADM. CODE §§ DOC 303.24 (Disobeying Orders) and 303.32 (Enterprises and Fraud). The conduct report stemmed from Officer LaCroix's decision to open a letter sent by Peckham that had been returned due to an insufficient address. Although the envelope was addressed to "Attorney-K. Leslie," the letter inside the envelope was to Peckham from Harper Collins Publishers. While the envelope indicated the contents were legal in nature, they in fact were not. It is undisputed that LaCroix opened the envelope outside of Peckham's presence.

At the disciplinary hearing, Peckham contended that her communication with Kevin Leslie was a legal matter because it concerned the refund of money, that the envelope was designated as legal mail and was opened illegally by LaCroix, and finally that her conduct did not violate any rules because she was merely trying to get her money refunded. The hearing officer found Peckham guilty of violating both WIS. ADM. CODE §§ DOC 303.24 and 303.32 based on the content of the conduct report, as well as on the content of the envelope and the letter in question.2 The rationale set forth by the hearing officer in support of the findings of guilt was threefold: (1) Peckham never had possession of the book in question (it was not on her property list) and was trying to obtain reimbursement for an item that she never had, (2) Peckham had received several prior conduct reports for the same type of an offense, and (3) Peckham attempted to utilize legal mail for nonlegal purposes. The hearing officer imposed discipline of six days of segregation, 120 days of program segregation and the destruction of the contraband.

Peckham appealed the decision of the hearing officer to Krenke. At this level of the administrative process, Peckham, in addition to making the arguments made to the hearing officer, argued for the first time that: (1) WIS. ADM. CODE § DOC 303.24 was a lesser included offense of WIS. ADM. CODE § DOC 303.32 so she should not have been convicted of both; (2) § DOC 303.32 was ambiguous; (3) the hearing officer was biased; and (4) the conduct report was, in so many words, the result of a conspiracy by TCI staff to have her adjudicated guilty of rule violations on a continuous basis. Krenke affirmed.

Peckham then filed a petition for writ of certiorari with the Fond du Lac County Circuit Court seeking a review of the decisions by the hearing officer and Krenke. The circuit court affirmed the decisions of the hearing officer and Krenke.3 Peckham appeals.

I. Standard of Review

In State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 385-86, 585 N.W.2d 640, 646 (Ct. App. 1998), the principles governing judicial review on certiorari were summarized as follows:

Judicial review on certiorari is limited to whether the agency's decision was within its jurisdiction, the agency acted according to law, its decision was arbitrary or oppressive and the evidence of record substantiates the decision. The scope of our review on certiorari is identical to that of the trial court. We decide the merits of the matter independently of the trial court's decision. The evidentiary test on certiorari review is the substantial evidence test, under which we determine whether reasonable minds could arrive at the same conclusion the committee reached. "The facts found by the committee are conclusive if supported by `any reasonable view' of the evidence, and we may not substitute our view of the evidence for that of the committee." [Citations omitted; quoted sources omitted.]

In addition, the inmate has the burden of proving by a preponderance of the evidence that the actions of, in this case, the hearing officer and Krenke, were arbitrary and capricious. See State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 550, 185 N.W.2d 306, 311 (1971)

. The scope of this court's review is limited to the record of the prison disciplinary proceedings. See State ex rel. Irby v. Israel, 95 Wis. 2d 697, 703, 291 N.W.2d 643, 646 (Ct. App. 1980).

II. Violation of Wis. Adm. Code § DOC 309.05

Peckham argues that her letter to "Attorney K-Leslie," which was returned to her due to an insufficient address,4 was opened outside of her presence in violation of WIS. ADM. CODE § DOC 309.05.5 The State counters by arguing that the mail was not legal mail even though the word "Attorney" was found on the envelope because Leslie was not an attorney and an inspection of the letter disclosed an attempt on the part of Peckham to circumvent the institution's mail rules to perpetrate a fraud. The State concludes by arguing that the envelope, being nonlegal in nature, could be opened and examined pursuant to § DOC 309.05(2)(a).6 Therefore, Peckham has failed to prove by a preponderance of the evidence a violation of § DOC 309.05.7


We disagree with the State's position. Although we do not condone any attempt by inmates to subvert institution mail rules by the use of legal titles, such as "Attorney," on envelopes to avoid having the mail opened and examined, we are constrained to hold that the envelope addressed to "Attorney-K. Leslie" constituted incoming legal mail that could only be opened and examined by TCI staff in the presence of Peckham. See WIS. ADM. CODE § DOC 309.05(4)(a). Because it is undisputed that Peckham was not present when LaCroix opened the envelope and examined its contents, the opening of the envelope and examination of its contents was done in violation of § DOC 309.05(4). Any explicit or implicit finding by the hearing officer and Krenke to the contrary is not supported by the record and the administrative rule in question. This does not end our analysis, however. The issue that we must address, and the central issue in this case, is whether evidence obtained as a result of the opening and examination of Peckham's incoming legal mail outside of her presence, and in violation of WIS. ADM. CODE § DOC 309.05(4), should be excluded from consideration during the disciplinary process.

III. Application of Exclusionary Rule
A. General

Implicit in Peckham's arguments is her contention that the opening and examination of her incoming legal mail, in violation of WIS. ADM. CODE § DOC 309.05(4), should preclude consideration during the course of the disciplinary proceedings of the evidence obtained by the unlawful mail opening. The State counters that the exclusionary rule does not apply here because the evidence (i.e., the envelope and the letter), although obtained in violation of an administrative rule, was not obtained in violation of Peckham's constitutional rights, citing, among other cases, Ware v. State, 201 Wis. 425, 230 N.W. 80 (1930), and Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993). We agree with the State's argument in this regard and, for the reasons discussed below, will not apply the exclusionary rule to the evidence seized in this case.

The exclusionary rule was first adopted in Wisconsin in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). In Hoyer, our supreme court held that evidence seized by state officers in violation of an individual's constitutional rights was inadmissible against that individual in a criminal proceeding. See id. at 415, 193 N.W. at 92.

In Ware, our supreme court adopted a corollary to the exclusionary rule to the effect that evidence wrongfully or illegally obtained is not inadmissible, so long as it was not obtained in violation of an individual's constitutional rights. See Ware, 201 Wis. at 427, 230 N.W. at 81. The Ware rule was expanded to an extent in several succeeding criminal cases, with the current formulation of the rule being that wrongfully or illegally obtained evidence is to be suppressed only where the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression as a sanction. See State v. Verkuylen, 120 Wis. 2d 59, 61, 352 N.W.2d 668, 669 (Ct. App. 1984)

; State v. King, 142 Wis. 2d 207, 213-14, 418 N.W.2d 11, 13 (Ct. App. 1987); State v. Mieritz, 193 Wis. 2d 571, 574, 534 N.W.2d 632, 633 (Ct. App. 1995); State v. Thompson, 222 Wis. 2d 179, 189, 585 N.W.2d 905, 910 (Ct. App.),

review denied, 222 Wis. 2d 675, 589 N.W.2d 629 (1998). Significantly, the Ware rule has been applied not only in criminal cases, but also in civil...

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