State ex rel. Terry v. Traeger, S

• Decision Date: 15 October 1973
• Docket Number: No. S,S
• Citation: 211 N.W.2d 4,60 Wis.2d 490
• Parties: STATE ex rel. Ronald Francis TERRY, Petitioner, v. Clarence G. TRAEGER, Judge, Dodge County, Respondent. tate 20.
• Court: Wisconsin Supreme Court

Page 4

211 N.W.2d 4

60 Wis.2d 490

STATE ex rel. Ronald Francis TERRY, Petitioner, v. Clarence G. TRAEGER, Judge, Dodge County, Respondent.

No. State 20.

Supreme Court of Wisconsin.

Oct. 15, 1973.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison, for petitioner.

Robert W. Warren, Atty. Gen., James H. Petersen, Asst. Atty. Gen., Madison, for respondent.

BEILFUSS, Justice.

We deem there are three dispositive issues. They are: (1) Whether the letter to the respondent constitutes a complaint or petition sufficient to permit the county court to accept jurisdiction; (2) whether there existed some administrative remedy which petitioner was required to exhaust before bringing suit in court; and (3) whether mandamus is a proper remedy.

Preliminary to a determination of the issues, from the record before us, it is doubtful that the petitioner has a valid claim that he was denied access to the courts by the prison staff and prison regulations. The prison staff did furnish paper and pen or pencil to the petitioner; he did write to the judge of the county court and the judge did receive and acknowledge receipt of it. There is no allegation that the prison staff denied him like access to the federal courts. While the judge rejected his letter it is difficult to say, at this stage, that the prison staff denied him access to the courts. Nevertheless, question of a prisoner's access to the courts if of such importance that it should be discussed.

Whether the sufficiency of the petitioner's letter is examined as a complaint for declaratory relief or as a petition for habeas corpus, the underlying constitutional considerations are the same.

Surely an inmate of a state penal or correctional institution confined there by judicial order loses, temporarily, some of his basic rights as a citizen. His liberty is restrained, he is not free to choose his place or manner of living, he cannot freely choose employment and he looses other basic rights. Further, prison authorities can and must adopt regulations for the security of the institution, for the safety of all inmates and for the orderly maintenance and administration of the institution.

There are, however, other fundamental rights, tempered by reasonable regulations, that remain inviolate. One such right of constitutional importance is access to the courts. ¹ He must be afforded legal remedies after his conviction to not only challenge the legality of his conviction but also the term of his confinement, parole and probation revocation and some matters of in-prison control.

We recognize that the confinement of the prisoner and the necessary reasonable regulations of the prison, in addition to the fact that many prisoners are 'unlettered' and most are indigent, make it difficult for a prisoner to obtain legal assistance or to know and observe jurisdictional and procedural requirements in submitting his grievances to a court. Accordingly, we must follow a liberal policy in judging the sufficiency of pro se complaints filed by unlettered and indigent prisoners. ²

Giving the prisoner's letter to Judge Traeger the liberal construction it is entitled to, we believe it does set forth a cause of action. ³ He sufficiently set forth the court and the county by addressing the letter to Judge Traeger as County Judge of Dodge county. He identified himself as a segregated prisoner at the Wisconsin State Prison, which can be judicially noticed as being in Dodge county. He stated he was denied his typewriter and sufficient paper and he claimed to be necessary to bring a complaint against the institution and thereby denied access to the federal court. He named the officer who denied him these materials and asked for a temporary and a permanent restraining order to decree the prison does not have authority to deny him or other prisoners access to the courts. His statement, giving it liberal construction, is sufficient to constitute a concise statement of the facts giving rise to his claim of denial of access to the courts. His request for restraining orders is adequate to constitute a demand for relief. This we believe to be sufficient to state a cause of action for declaratory relief to challenge the validity of a prison regulation.

Although Judge Traeger did not specifically set forth the following reasons, the state contends (1) that the letter could not be accepted as a complaint because it was not verified as required by sec. 263.24, Stats., (2) that no jurisdiction can obtain without the service of a summons, and (3) that the statutory suit tax and filing fee were not paid.

The attorney general, on behalf of the respondent, claims that petitioner's complaint did not meet the formal requirements of pleading in that there was no verification of the pleading and that there was no suit tax filed. Although sec. 263.23, Stats., requires a verification of pleadings, we believe that the failure to verify such would be only a defect in verification. Sec. 263.24 states that, '. . . Where service is made either subsequent to ch. 262 or otherwise, no defect or irregularity in a verification shall defeat the jurisdiction of the court but shall be ground for a timely motion to strike the pleading unless amended. . . .' Therefore it appears that the court need not deny jurisdiction on the basis of lack of verification, but rather the opposing party can timely make a motion to strike the complaint once it is served. The petitioner would then have an opportunity to amend. Sec. 263.45 allows that: 'Any pleading may be once amended by the party of course, . . .' Only the petitioner's failure or refusal to amend his pleading by verification, if demanded by respondent, would prove fatal to his cause of action.

As to the suit tax, it is probable that Mr. Terry would qualify under sec. 271.29, Stats., as an indigent and therefore be entitled to have the suit tax and other fees waived. Given the conditions under which petitioner had to bring the suit and the denial to him of legal materials, it would indeed seem unjust to deny jurisdiction on the grounds of his failure to execute all of the formalities. If necessary the court could easily cure his matter by advising the petitioner that he must establish his indigency before the suit tax or filing fee can be waived.

The attorney general also asserts that under Wisconsin civil procedure the service of a summons is mandatory to confer jurisdiction; that it is the service of the summons that is necessary to meet the 'due process' requirements of notice and identification of parties. We believe that if a pro se complaint of an indigent prisoner in a letter is otherwise arguably sufficient to confer jurisdiction, the court can appoint counsel for the indigent to advise and assist in the preparation of necessary documents to satisfy procedural requirements, including a summons.

We have determined above that the pro per letter of the petitioner at least arguably sets forth a cause of action for declaratory relief within the jurisdiction of the court. In addition to an action for declaratory relief, this court, and many federal courts, have expanded a writ of habeas corpus so as to afford the type of relief the petitioner seeks. He claims he is confined in a correctional institution by the state and is being denied rights that are constitutionally protected. If this is a proper claim by an indigent prisoner that he is being denied rights that are constitutionally protected, the court can treat the pro per letter as a petition or application for a writ of habeas corpus, order the state to respond and appoint counsel for the indigent.

Simply because we have determined that a letter by an indigent prisoner can be construed as a complaint or petition for habeas corpus, it does not follow that every communication to a judge from an indigent prisoner reaches this status. The prisoner's claim must be such that it can be reasonably interpreted to allege such facts, if true, would arguably result in a denial of due process or other constitutionally protected rights retained by a prisoner. Complaints that set forth no facts, those that are frivolous, vindictive, repetitious, obviously made to harass the court or prison officials, or make de minimis complaints concerning the application of obvious reasonable regulations may be summarily denied by the judge.

The respondent also asserts that the petitioner should be required to exhaust his administrative remedies before resorting to the courts.

The primary jurisdiction rule provides that where an administrative remedy is provided by statute, relief should first be sought from the administrative agency and procedures there exhausted before bringing the matter to the court. This court has recognized the rule ⁴ not as a question of power or jurisdiction but as a matter of comity between the agency and the courts. In Wisconsin Collectors Asso., supra, pp. 44, 45, 145 N.W.2d p. 37, we have stated:

'. . . The court must consider which course would best serve the ends of justice. If the issue presented to the court involves exclusively factual issues within the peculiar expertise of the commission, the obviously better course would be to decline jurisdiction and to refer the matter to the agency. On the other hand, if statutory interpretation or issues of law are significant, the court may properly choose in its discretion to entertain the proceedings. The trial court should exercise its discretion with an understanding that the legislature has created the agency in order to afford a systematic method of fact-finding and policy-making and that the agency's jurisdiction should be given priority in the absence of a valid reason for judicial intervention.'

We are urged to take the position that the petitioner should be required to exhaust his remedies under the newly adopted Inmate Complaint Review System promulgated under the rule-making power of the Department of...