State ex rel. Shimkus v. Sondalle

• Citation: 620 N.W.2d 409,239 Wis.2d 327,2000 WI App 238
• Decision Date: 14 September 2000
• Docket Number: No. 00-0324.,00-0324.
• Parties: STATE of Wisconsin EX REL. Mark SHIMKUS, Petitioner-Appellant, v. Kenneth SONDALLE, Warden, Fox Lake Correctional Institution, Respondent-Respondent.
• Court: Court of Appeals of Wisconsin

239 Wis.2d 327

2000 WI App 238

620 N.W.2d 409

STATE of Wisconsin EX REL. Mark SHIMKUS, Petitioner-Appellant, v. Kenneth SONDALLE, Warden, Fox Lake Correctional Institution, Respondent-Respondent.

No. 00-0324.

Court of Appeals of Wisconsin.

Submitted on briefs June 23, 2000.

Decided September 14, 2000.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Mark Shimkus, pro se of Fox Lake.

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

Before Eich, Vergeront and Roggensack, JJ.

¶ 1. EICH, J.

Mark Shimkus, an inmate of the Fox Lake Correctional Institution, appearing pro se, appeals from an order dismissing his certiorari petition challenging the decision of a prison disciplinary committee. The circuit court dismissed the petition as untimely filed. Because it is undisputed that Shimkus deposited his petition, along with an authorization to withdraw the filing fee from his prison account, in the appropriate mail receptacle at Fox Lake well within the time limit for filing such actions, we reverse, concluding that, under these circumstances, the forty-five day time limit for filing such petitions set forth in WIS. STAT. § 893.735(2) (1997-98) is tolled.¹

¶ 1a. Shimkus was found by a Fox Lake "adjustment committee" to have violated certain prison rules, and discipline was imposed. Following the serpentine procedures applicable to such cases, he then appealed the committee's decision to the institution's warden, who affirmed the adjustment committee's decision. As required by the exhaustion-of-remedies provisions of WIS. STAT. § 801.02(7), Shimkus then sought relief through the Inmate Complaint Review System at Fox Lake. His case was dismissed by a hearing officer, and he appealed that decision to the secretary of the department of corrections. The secretary, accepting the hearing officer's recommendations, dismissed Shimkus's complaint on August 6, 1999, finally setting the stage for certiorari review in circuit court.

[1]

¶ 2. WISCONSIN STAT. § 893.735(2) states that prisoner certiorari actions are barred if not commenced within forty-five days of the date of the final decision or disposition of the matter by prison authorities. The statute goes on to state that an action is "commenced" within the meaning of the law "at the time that the prisoner files a [certiorari] petition . . . with a court." Section 893.735(2). In Shimkus's case, the forty-five-day period would expire on September 20, 1999.

¶ 3. Shimkus placed his petition, properly addressed (and apparently carrying the necessary authorization for payment of the filling fee from his prison trust account),² in the prison mailbox on September 8—twelve days prior to the deadline. For reasons not explained in the record, the document was not received by the Dodge County Clerk of Circuit Court until September 23—three days past the forty-five day deadline. As indicated, the circuit court, on the department's motion, dismissed Shimkus's action as untimely filed.

¶ 4. Shimkus argues on appeal that we should reverse, applying the rationale of Houston v. Lack, 487 U.S. 266 (1988), where the United States Supreme Court held that, under a federal rule of appellate procedure which, at that time, required appeals from denials of habeas corpus petitions to be "filed with the district [court] clerk" within thirty days,³ a prisoner's notice of appeal was deemed to be "filed" within the meaning of the rule at the moment of delivery to prison authorities for forwarding to the district court. Id. at 276.

¶ 5. Houston's petition was denied by the district court on January 7, 1986. He drafted a notice of appeal and, on February 3—twenty-seven days after entry of the dismissal order—deposited it with prison authorities for mailing to the court. And while there was no evidence as to when the prison authorities actually mailed the document, or when it was received by the court—and some evidence that Houston may have inadvertently addressed the envelope to the Tennessee Supreme Court, rather than the federal district court—the notice was stamped "filed" by the court's clerk on February 7, thirty-one days after entry of the order denying his petition. See id. at 268. Houston's appeal was dismissed for want of jurisdiction due to the untimely filing of the notice, and he appealed. The Supreme Court reversed, holding that Houston's delivery of the notice of appeal to the prison authorities constituted filing it with the court within the meaning of the rule. In so holding the Court emphasized the "unique" status of incarcerated pro se litigants in this regard—that unlike other litigants, they cannot personally ensure receipt of legal papers by the required officers or agencies.

[P]ro se prisoners cannot personally travel to the court house to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mails they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court . . . knowing that if the mail goes awry they can personally deliver the notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. . . . Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public official to whom he has access—the prison authorities—and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on the notice.

Id. at 271-72. The court went on to note that:

As detailed above, the moment at which pro se prisoners necessarily lose control over and contact with their notice of appeal is at delivery to prison authorities, not receipt by the clerk. Thus, whereas the general rule [that filing cannot mean anything other than filing with the clerk] has been justified on the ground that a civil litigant who chooses to mail a notice of appeal assumes the risk of untimely delivery and filing . . ., a pro se prisoner has no choice but to hand his notice over the prison authorities for forwarding to the court clerk.

Id. at 275.

¶ 6. Finally, responding to "administrative concerns" that such a rule would "increase disputes and uncertainty over when a filing occurred and . . . would put all the evidence about the date of filing in the hands of [the prisoner]," the court stated that such concerns would actually be alleviated by the rule:

The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox—he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, [the rule] is a bright-line rule, not an uncertain one.⁴

Id. at 275.

¶ 7. The State says we should ignore Houston because (a) it announces no constitutional doctrine, but is only an interpretation of a federal rule, (b) it is not controlling authority in Wisconsin, and (c) courts in at least three other states have declined to follow Houston's rationale.

¶ 8. The State is correct in its characterization of Houston as a non-constitutional federal case which would not be binding on Wisconsin courts. See State v. Webster, 114 Wis. 2d 418, 426 n. 4, 338 N.W.2d 474 (1983)

. Still, we have on many occasions followed the reasoning of federal trial and appellate-court opinions which we have found to be "persuasive" on a particular point of law. See, e.g., State v. Boettcher, 144 Wis. 2d 86, 96-97, 423 N.W.2d 533 (1988); Streff v. Town of Delafield, 190 Wis. 2d 348, 356-57, 526 N.W.2d 822 (Ct. App. 1994).

¶ 9. We note at the outset that there is a difference in the "filing" requirements of the federal rule at issue in Houston, and the Wisconsin rules applicable to the filing of certiorari actions by prison inmates. The time-keyed provisions of the federal rule relate to the simple act of filing a notice of appeal; nothing more is required for institution of the appeal proceedings. In Wisconsin, however, civil actions are not commenced until the applicable filing fee is paid, see WIS. STAT. § 801.02(6), unless payment is waived by the court for cause shown.⁵ If an inmate wishes to commence a certiorari action without full prepayment of the fee, he or she must request leave to do so and submit to the court an affidavit of indigency and a certified copy of his or her trust fund account statement for the preceding six-month period. See WIS. STAT. § 814.29(1m)(b)(1) and (2). The court then considers these submissions in determining whether to "allow[ ] the prisoner to commence . . . the action"—either without payment of the fee, or by paying into court the balance in the account, if it is less than the fee amount. Section 814.29(1m)(c). There is, in short, much more to the "filing" process in this situation than existed in Houston; and it is for this reason that we do not...