State ex rel. Schatz v. McCaughtry

• Decision Date: 20 June 2002
• Docket Number: No. 01-0793.,01-0793.
• Citation: 2002 WI App 167,650 N.W.2d 67,256 Wis.2d 770
• Parties: STATE of Wisconsin EX REL. Leslie J. SCHATZ, Petitioner-Appellant, v. Gary R. MCCAUGHTRY, Respondent-Respondent,
• Court: Wisconsin Court of Appeals

256 Wis.2d 770

2002 WI App 167

650 N.W.2d 67

STATE of Wisconsin EX REL. Leslie J. SCHATZ, Petitioner-Appellant, v. Gary R. MCCAUGHTRY, Respondent-Respondent,¹

No. 01-0793.

Court of Appeals of Wisconsin.

Submitted on briefs April 17, 2002.

Decided June 20, 2002.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of the pro se petitioner-appellant Leslie J. Schatz, and the supplemental briefs of T. Christopher Kelly of Kelly & Habermehl, S.C., Madison.

On behalf of the respondent-respondent, the cause was submitted on the briefs of Thomas J. Dawson, assistant attorney general, and James E. Doyle, attorney general.

Before Vergeront, P.J., Dykman and Deininger, JJ.

¶ 1. VERGERONT, P.J.

The dispositive issue on this appeal is whether a prisoner's right to procedural due process is violated when, without prior notice and the opportunity to be heard, a circuit court sua sponte dismisses the prisoner's petition for review by certiorari under WIS. STAT. § 802.05(3)(b)4 (1999-2000)² for failure to state a claim for relief. We conclude State ex rel. Sahagian v. Young, 141 Wis. 2d 495, 500, 415 N.W.2d 568 (Ct. App. 1987), is controlling on this issue. Following Sahagian, we hold that the lack of prior notice and the opportunity to be heard before the circuit court dismissed Leslie Schatz's certiorari petition violated his right to due process. We therefore reverse and remand for further proceedings.

BACKGROUND

¶ 2. Schatz, acting pro se, filed a petition for certiorari review of three disciplinary committee decisions, each finding him guilty of disobeying orders under either WIS. ADMIN. CODE § DOC 303.24(1)(a) or (1)(b) (Register, June 1994, No. 462) based on three different conduct reports. The petition alleged that the evidence did not support the findings of guilt; there were numerous due process violations; an improperly promulgated and inapplicable rule did not cure a deficiency in the notice; the second and third conduct reports were retaliation for his partial success in the outcome of the first conduct report; and the Inmate Complaint Examiner and the advocates are biased because they are employees of the Department of Corrections (DOC). Attached to the petition were various documents relating to the hearings before the disciplinary committee and Schatz's administrative appeals of those decisions.

¶ 3. Before ordering the respondent to file the record, the circuit court reviewed the petition under WIS. STAT. § 802.05(3). Section 802.05(3), part of the Prisoner Litigation Reform Act (PLRA), provides in part:³

(3)(a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02(7)(a)2.

(b) The court may dismiss the action or special proceeding under par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:

1. Is frivolous, as determined under s. 814.025(3).

2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

3. Seeks monetary damages from a defendant who is immune from such relief.

4. Fails to state a claim upon which relief may be granted.

The court concluded that the petition did not state a claim for relief and dismissed the petition under § 802.05(3)(b)4. With respect to the first conduct report, the court concluded it was filed in circuit court more than forty-five days after the last administrative decision in violation of WIS. STAT. § 893.735. With respect to each of the other two conduct reports, the court concluded that the evidence was sufficient to support the finding of guilt, there were no procedural errors that were not harmless, and the petition did not allege any specific facts showing retaliation.

¶ 4. Schatz appealed the order of dismissal, contending that his rights were violated because he did not have an opportunity to be heard by the court before it dismissed the petition. The State responded that Schatz did not have a right under WIS. STAT. § 802.05(3) to notice and the opportunity to be heard prior to dismissal of his petition.⁴ We construed Schatz's first argument as challenging the constitutionality of the procedure the court utilized in acting under § 802.05(3). We appointed counsel to further address this issue on Schatz's behalf and asked for supplemental briefing from both parties.⁵

DISCUSSION

¶ 5. Schatz contends that under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, he is entitled, as a matter of procedural due process, to notice and the opportunity to be heard before his petition for certiorari review is dismissed.⁶ He relies primarily on Sahagian to support this argument. In Schatz's view, WIS. STAT. § 802.05(3) does not itself violate due process, because it merely authorizes the court to dismiss a pleading without a responsive pleading; it neither requires nor authorizes the court to do so without giving the prisoner notice and an opportunity to be heard. However, Schatz continues, if a court is considering sua sponte dismissal of a pleading under § 802.05(3), the Due Process Clause requires that the court must first give the prisoner notice of the possible grounds for dismissal and the opportunity to be heard.

¶ 6. The State responds that Sahagian is distinguishable because of the different procedural posture of that case. According to the State, due process does not entitle Schatz to an opportunity to be heard before his petition is dismissed because there are adequate procedural safeguards against erroneous dismissals, such as a motion for reconsideration in the circuit court, either with or without moving to amend the pleadings under WIS. STAT. § 802.09(1), a motion for relief from judgment under WIS. STAT. § 806.07, and the opportunity for an appeal. The State relies on Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001), cert. denied, 122 S. Ct. 274 (2001), and urges us to follow this case, which it characterizes as the majority view in the federal courts.⁷ [1, 2]

¶ 7. We consider first the proper construction of WIS. STAT. § 802.05(3), which presents a question of law, which we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). As with all questions of statutory construction, we start with the language of the statute itself, and if it is free from ambiguity, we apply that language to the facts at hand. Id. at 406. The plain language of the statute does two things: (1) requires the court to review the initial pleading "as soon as practicable," § 802.05(3)(a); and (2) authorizes the court to dismiss the action or special proceeding without requiring the defendant to answer if it determines the action or special proceeding meets one of certain specified conditions, § 802.05(3)(b). We agree with Schatz—and the State does not argue otherwise—that the statute simply does not address whether the court must provide the prisoner with notice and the opportunity to be heard before it dismisses an action or special proceeding on one of the specified grounds. We agree with the State that the evident purpose of authorizing a court to dismiss a prisoner's initial pleading on certain specified grounds before the defendant answers is to reduce the number of actions in which defendants must answer a pleading that does not meet certain criteria. However, that purpose does not indicate the legislature's intent with respect to the procedure the court is to follow vis-à-vis the prisoner.

[3]

¶ 8. Since the statute neither requires nor authorizes a court to dismiss an initial pleading under WIS. STAT. § 802.05(3) without first giving the prisoner notice and an opportunity to be heard, we next consider whether the Due Process Clause requires this procedure. In Sahagian, we addressed this issue at a somewhat different stage of the proceeding on a petition for certiorari review of a prison disciplinary decision. In Sahagian, decided well before the enactment of § 802.05(3), the circuit court had apparently ordered the respondent to file the record of the disciplinary proceedings with the court, and the respondent filed the record. Sahagian, 141 Wis. 2d at 497. The circuit court then issued a decision affirming the disciplinary committee's decision after concluding that the procedural regulations had been followed and there was substantial evidence to support the finding of guilt. Id. In response to the prisoner's argument that he should have had the opportunity to "present his case" before the court made its decision, we stated:

We ... address the merits of Sahagian's argument because the error of the trial court is one which could easily be repeated when an inmate seeks review by certiorari of the decision of a disciplinary or program review committee. "[W]hen the rights or interests of a person are sought to be affected by judicial or quasi-judicial decree, due process requires that the individual be given notice reasonably calculated to inform the person of the pending proceeding and to afford him or her an opportunity to object and defend his or her rights." In Matter of Estate of Fessler, 100 Wis. 2d 437, 447, 302 N.W.2d 414, 419 (1981). "`The fundamental requisite of due process of law is the opportunity to be heard.' The hearing must be `at a meaningful time and in a meaningful manner.'" Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citations omitted).

Confusion may have arisen in this case because Sahagian's petition for the writ of certiorari set forth comprehensively what he viewed to be the facts and his position with respect to those facts and the action taken by the disciplinary committee and Young. However, since a writ of certiorari is not a writ of right but rather is one which is discretionary⁸ with the court, State ex

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