State ex rel. Schultz v. Berge

• Decision Date: 17 April 1997
• Docket Number: No. 96-2962,96-2962
• Citation: State ex rel. Schultz v. Berge, 568 N.W.2d 322, 210 Wis.2d 500 (Wis. App. 1997)
• Parties: NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. STATE of Wisconsin ex rel. James R. Schultz, Petitioner-Respondent, v. Gerald BERGE and Tom Gozinske, Respondents-Appellants.
• Court: Wisconsin Court of Appeals

Page 322

568 N.W.2d 322

210 Wis.2d 500

NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

STATE of Wisconsin ex rel. James R. Schultz, Petitioner-Respondent, v.Gerald BERGE and Tom Gozinske, Respondents-Appellants.

No. 96-2962.

Court of Appeals of Wisconsin.

April 17, 1997.

APPEAL from an order of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge.Reversed and cause remanded with directions.

Before EICH, C.J., VERGERONT and DEININGER, JJ.

EICH, C.J.

Gerald Berge and Tom Gozinske, the warden and the inmate complaint investigator at the Fox Lake Correctional Institution, appeal from an order requiring them to deliver a memory-bank typewriter to inmate James R. Schultz and prohibiting them from enforcing a rule of the Department of Corrections prohibiting inmates from possessing such typewriters.Because we conclude that appellants did not arbitrarily or capriciously deny Schultz access to the typewriter and, further, that the trial court erred in concluding that principles of equitable estoppel may be applied to enjoin enforcement of the rule, we reverse the order.¹

The facts are not in dispute.In 1987, while incarcerated at a different institution, Schultz acquired a typewriter with a one-page memory or text-storing capacity.He was transferred to Fox Lake in December 1994, at which time he was notified of an updated version of DOC 309, Internal Management Procedure # 1-B, which provides, "Typewriters may not have a memory bank or be capable of storing text."A little over a month later, the typewriter was damaged during a routine search of Schultz's cell, and correctional officers agreed to pay Schultz its value, depositing $70 in his inmate account.Schultz then ordered a new typewriter, with similar text-storing capabilities, from a mail-order company.When the new machine was delivered, Fox Lake staff determined that it was prohibited by IMP # 1-B and notified Schultz that it would not be delivered to him.

Schultz filed an inmate complaint, and the prison complaint officer recommended dismissal on grounds that the "institution[']s obligation to ... Schultz was satisfied and he was made whole when he agreed to and accepted [the] $70.00 for his loss....FLCI['s] ... reports adequately detail the controlling regulations and all inmates ... are required to follow them."Schultz appealed to the warden, who confirmed the complaint officer's decision.Schultz exhausted his administrative remedies and petitioned the trial court for a writ of certiorari.²Acknowledging that the rule applied to Schultz's typewriter--and recognizing that the rule was predicated upon "legitimate [prison] security interest[s]"--the trial court concluded that, because the prison authorities had failed to enforce the rule against Schultz in the past, they were estopped from enforcing it with respect to his new typewriter, which was essentially the same model as the old one.Then, balancing "the public interest in health, welfare and safety at stake against the injustice that may occur if estoppel is not applied,"³the court stated, without elaboration, that it was "not satisfied" that Schultz's possession of the memory-storage typewriter "produce[d] a substantial threat to ... prison security," and reversed the prison's dismissal of Schultz's inmate complaint.The order had the effect of directing that the typewriter be delivered to Schultz.

In certiorari proceedings, we review the decision of the agency, not the trial court, State ex rel. Whiting v. Kolb, 158 Wis.2d 226, 233, 461 N.W.2d 816, 819(Ct.App.1990), and our review is limited to the record made before the agency.State ex rel. Irby v. Israel, 95 Wis.2d 697, 703, 291 N.W.2d 643, 646(Ct.App.1980).We determine only: (1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented the agency's will and not its judgment; and (4) whether the evidence supports the determination.Id.;State ex rel. Riley v. DHSS, 151 Wis.2d 618, 623, 445 N.W.2d 693, 694(Ct.App.1989).

Acknowledging that Schultz's previous typewriter, like his new one, was prohibited by the rule, appellants Berge and Gozinske argue that their earlier failure to enforce the rule against him does not bar them from enforcing it now.They are correct.As the supreme court recognized in State v. City of Green Bay, 96 Wis.2d 195, 201-02, 291 N.W.2d 508, 510(1990), " ' "We have not allowed estoppel to be invoked against the government when application of the doctrine interferes with the police power for the protection of the public health, safety, or general welfare." ' "(Quoted sources omitted.)In WestGate Hotel, Inc. v. Krumbiegel, 39 Wis.2d 108, 114, 158 N.W.2d 362, 365(1968), the supreme court refused to apply estoppel principles to prohibit a city health department from applying a health related rule to a hotel, despite the department's having "ignored" similar deficiencies in the past, concluding: "It ... is axiomatic that a law-enforcing body, when faced with the practical difficulties of enforcing all of its regulations at once, is not thereby barred from future enforcement of the law...."

Schultz puts forth several arguments against the State's position, peppering them with constitutional references.He states, for example, that: (1)he has an "equal protection right" to possess the new typewriter based on the prison's "allow[ing him] to possess [the] original typewriter"; (2)he has a "legitimate entitlement to possess [the] typewriter" because the prison assisted him in purchasing it; (3) barring him from possessing the new typewriter violates his "due process" rights because his former typewriter had been "allowed into the institution" by prison authorities; and (4)appellants' application of the rule to his situation was "arbitrary and capricious and contrary to well established law" because prison authorities had "permitted" him to acquire and possess the old typewriter and assisted him in acquiring the new one.It is apparent that whatever constitutional (or other) gloss ⁴ Schultz attempts to add to his arguments, they all come down to a single assertion: that, because of appellants' failure to enforce the rule against him in the past, they should be estopped from doing so now.That argument, as we have indicated, fails in the face of City of Green Bay, Krumbiegel, and similar cases.

Finally, we consider the trial court's statement that it was "not satisfied that a one page text storing function...