State ex rel. Sahagian v. Young
| Decision Date | 17 September 1987 |
| Parties | STATE ex rel. Christian SAHAGIAN, Petitioner-Appellant, v. Warren YOUNG and James Murphy, Respondents. 86-2216. |
| Court | Wisconsin Court of Appeals |
Review Denied.
Christian Sahagian, pro se.
Frank D. Remington and Lee, Johnson, Kilkelly & Nichol, S.C., Madison, for respondents.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
Christian Sahagian, pro se, appeals an order sustaining the respondent Superintendent Young's affirmance of the Waupun Correctional Institution (WCI) Adjustment Committee's finding of guilt and imposition of discipline and an order denying his motion for reconsideration. James Murphy is the superintendent of the Columbia Correctional Institution (CCI) where Sahagian is currently confined. Sahagian claims that the registrar at Columbia, as respondent Murphy's agent, was required to provide him with a certified copy of the return to the writ of certiorari; that he had a right to present his case; and the return to the writ contained matters which were not part of the record. Because Sahagian was denied his due process right to be heard before the trial court, we reverse and remand for further proceedings consistent with this opinion.
On May 2, 1986 Sahagian, while an inmate in Waupun, received an Adult Conduct Report for disrespect and disruptive conduct alleged to have occurred on April 29, 1986. On May 13, 1986, the charges against him were heard in a major-conduct full due process hearing before the WCI Adjustment Committee pursuant to Wis.Adm.Code, sec. HSS 303.78. He was found guilty of both offenses and discipline was imposed. On Sahagian's appeal, the Adjustment Committee's finding of guilt and disposition was affirmed by Young.
On October 3, 1986, after his transfer to Columbia, Sahagian filed with the circuit court a petition for writ of certiorari to bring up for review the record of the disciplinary proceedings which had been transferred to Columbia. On October 17, 1986 the registrar filed a return to the writ with the circuit court. The return included Sahagian's prison identification card which contained his picture, his vital statistics, the crime for which he was imprisoned and his term, and also included his record of offenses and discipline during his imprisonment. Sahagian did not receive a copy of the return.
In its memorandum decision and order of October 23, 1986, the trial court found that the due process hearing requirements of Wis.Adm.Code, HSS 303.76 through 303.84 were met and affirmed the institution's decision, finding it was supported by substantial evidence. In an order filed November 24, 1986, the trial court denied Sahagian's motion for reconsideration of its prior order. Sahagian's motion also requested a certified copy of the record and permission to file appropriate motions and state his reasons why the superintendent's decision should be reversed. The order advised Sahagian that a copy of the return could be obtained by making a request therefor to the registrar of the CCI.
Sahagian argues that this is a civil action commenced under ch. 801, Stats., and that the rules of civil procedure, specifically secs. 801.14(1) and 801.14(4), required that We agree that certiorari is an "action" as defined in sec. 801.01(1), Stats. Certiorari is a civil action. Irby v. Young, 139 Wis.2d 279, 281, 407 N.W.2d 314, 315 (Ct.App.1987) Section 801.02(5) provides:
the custodian of the records of the disciplinary proceedings, as the agent of respondent Murphy, provide him with a certified copy of the return made to the circuit court and to certify to the court that he was served with a copy of the return.
An action seeking a remedy available by certiorari ... may be commenced under sub. (1), by service of an appropriate original writ on the defendant named in the writ if a copy of the writ is filed forthwith, or by filing a complaint demanding and specifying the remedy, if service of an authenticated copy of the complaint and of an order signed by the judge of the court in which the complaint is filed is made upon the defendant under this chapter within the time period specified in the order. ...
However, we do not agree that secs. 801.14(1) and (4), Stats., required that the respondents serve a copy of the return upon the petitioner. The return to the writ is not a pleading. Certiorari is an extraordinary remedy subject to ch. 781, Stats.
Section 781.03, Stats., provides:
In an action or proceeding seeking an extraordinary remedy for which a record must be reviewed, the defendant shall cause the record to be transmitted to the clerk of court in which the action or proceeding is pending and shall give notice of the pendency of the action to the person in possession of the record. The person in possession of the record shall transmit the record to the clerk upon receipt of the notice.
The Judicial Council Note, sec. 12, ch. 289, Laws of 1981 to this section states:
This rule will be used most often in a certiorari action in which a proceeding in an inferior tribunal or body is reviewed on the record. It puts the ultimate responsibility for transmitting the record on the person in possession of the record.
There is no requirement in the statutes that the person in possession of the record transmit a copy of the return to the petitioner. Sahagian's ability to have the determinations of Young and the Adjustment Committee reviewed has not been prejudiced by the respondents' failure to provide him with copies of the documents returned in response to the writ of certiorari. He is in possession of or has obtained copies of the documents returned by the registrar in response to the writ of certiorari.
Sahagian argues that he...
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