State ex rel. Thomas v. State

• Decision Date: 07 July 1972
• Docket Number: No. 330,330
• Parties: STATE ex rel. Jerry THOMAS I, Appellant, v. STATE of Wisconsin et al., Respondents.
• Court: Wisconsin Supreme Court

Page 675

198 N.W.2d 675

55 Wis.2d 343

STATE ex rel. Jerry THOMAS I, Appellant, v. STATE of Wisconsin et al., Respondents.

No. 330.

Supreme Court of Wisconsin.

July 7, 1972.

Jerry Thomas I, the appellant, is confined in Wisconsin State Prison at Waupun and on September 24, 1970, filed a petition for a writ of mandamus in the circuit court for Dodge county, which was denied the same day by Circuit Judge Henry G. Gergen, Jr. The prayer for relief asked for an order requiring the warden to provide Thomas with adequate medical care and for an injunction restraining interference with his attempt to communicate with governmental agencies. On November 6, 1970, Thomas filed a similar petition in the circuit court for Dane county, and on December 23 Circuit Judge Norris E. Maloney denied the petition for a writ of mandamus on the same grounds Judge Gergen had, namely, that an exercise of administrative discretion was involved and the court was without jurisdiction to grant Thomas' request to require the warden of the prison to furnish more adequate medical treatment to Thomas. This denial made no mention of Thomas' prayer for injunctional relief. The writ of error is to review the dismissal of the petition.

Jerry Thomas I. pro se.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for respondents.

HALLOWS, Chief Justice.

In his petition, ¹ Thomas alleges he has suffered an ailment for months involving a bowel problem and lower abdominal pain and during the past 10 months has seen the prison doctor many times, but the doctor has done nothing to correct the problem. He alleges he has availed himself of sick call on many occasions but has obtained no relief and since his arrival in the prison in October, 1969, he has not received a physical examination, despite his complaints.

When the petition was dismissed, Judge Gergen sent copies thereof to the department of health and social services. Thomas alleges he has heard of no determination by that department. Thomas is a veteran and alleges he wrote to the Veterans Administration asking it to do what it could to see he received treatment, but this letter was returned to him unmailed by prison authorities on the ground it violated prison rules.

The court believes a writ should issue requiring the warden and the department to make a determination of the adequacy of medical treatment of Thomas, if it has not already done so and to justify the prison rule forbidding an inmate to communicate by mail with the Veterans Administration.

In denying the petition, Judge Gergen was of the opinion Thomas had not exhausted his administrative remedies; and if a prisoner required hospitalization or medical treatment not available at the prison, the department of health and social services should transfer the prisoner to the university hospital for the care needed. Judge Gergen was under the impression that upon the department's failure to effect such transfer, the prisoner had a right to a judicial review of the determination of the department.

It is settled that mandamus does not supersede other legal remedies and is not available when a result sought can be adequately accomplished by other and as yet unexhausted means. State ex rel. Henshall v. Ludington (1873), 33 Wis. 107; State ex rel. Racine County v. Schmidt (1959), 7 Wis.2d 528, 97 N.W.2d 493; Beres v. New Berlin (1967), 34 Wis.2d 229, 148 N.W.2d 653; 53 Am.Jur.2d, Mandamus, pp. 370, 371, sec. 46. The state in its brief claims Thomas has not exhausted his available administrative remedies, but it does not enlighten this court by stating what those remedies are and how adequate they may be. ² We do not think the possible administrative remedies are adequate. Provisions for a review of an administrative decision under sec. 227.15, Stats., ³ would not seem to be applicable because if Mr. Thomas is to be transferred to the university hospital for treatment, the application to the regents must be made by the department on its own motion under sec. 46.115, Stats. ⁴ There is no provision for a hearing or a formal disposition by the department of any petition by the inmate for such a transfer. The term 'decision' as used in sec. 227.15, Stats., which is subject to judicial review, means a decision which is made after a statutorily prescribed hearing and fact finding. In Frankenthal v. Wis. Real Estate Brokers' Board (1958), 3 Wis.2d 249, 253, 88 N.W.2d 352, 354, 89 N.W.2d 825, we stated:

'The Wisconsin Telephone Co. v. Wisconsin Employment Relations Board Case, ((1948), 253 Wis. 584, 34 N.W.2d 844) held that it was the legislative intent that administrative agency decisions which are reviewable under sec. 227.15, Stats., be final orders entered at the end of contested proceedings which are based on findings of fact required under sec. 227.13. In the instant case there was no contested proceeding in which the plaintiffs were accorded a hearing, and no findings of fact whatever were attempted to be entered.'

See also Universal Org. of M.F., S. & A.P. v. WERC (1969), 42 Wis.2d 315, 320, 166 N.W.2d 239; Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis.2d 78, 92, 100 N.W.2d 571; Hoyt, Wisconsin Administrative Procedure Act, 1944 Wis.L.Rev. 214, 220. A determination by the department not to make an application would not seem to qualify as a decision under sec. 227.15 as there is no statutorily prescribed hearing.

Another possible remedy is suggested by sec. 227.06, Stats., ⁵ which allows an interested person to petition an agency for a declaratory ruling with respect to the applicability of a statute. Under this section, Thomas could conceivably ask for a ruling from the department as to whether it should transfer him to the university hospital for medical treatment, and such a ruling is reviewable in the same manner as 'decisions' are under sec. 227.15, Stats. However, the issuance of such a ruling is discretionary and does not afford the petitioner as a matter of right with an appealable ruling. Wisconsin Fertilizer Asso. v. Karns (1968), 39 Wis.2d 95, 107, 158 N.W.2d 294. Consequently, this method cannot be called an alternative remedy which is plain, adequate, and complete, as required by the cases. State ex rel. Racine County v. Schmidt, supra; Burke v. Madison (1962), 17 Wis.2d 623, 631, 117 N.W.2d 580, 118 N.W.2d 898; Beres v. New Berlin, supra, 34 Wis.2d at p. 234, 148 N.W.2d 653; 55 C.J.S. Mandamus § 17, p. 47. We conclude therefore the possible remedies under ch. 227 should not preclude a resort to mandamus.

The trial court refused the writ also on the ground it would be an attempt to control the exercise of the department's discretion. It is true mandamus will not lie to control the manner in which a governmental body or officer exercises his statutorily-conferred discretion. State ex rel. Comstock v. Joint School Dist. (1886), 65 Wis. 631, 27 N.W. 829; Cartwright v. Sharpe (1968), 40 Wis.2d 494, 162 N.W.2d 5; State ex rel. Kurkierewicz v. Cannon (1969), 42 Wis.2d 368, 166 N.W.2d 255. Here, the gist of Thomas' petition is that he is not receiving effective or proper medical care at the prison and could be helped by a transfer to the Wisconsin general hospital. These allegations are as yet undisputed in the record and, if true, the department must apply under sec. 46.115 to the board of regents of the University of Wisconsin for admission to the Wisconsin general hospital for the inmate Thomas. On the basis of this record, we cannot determine whether the department in the good-faith exercise of its discretion reviewed and analyzed the medical needs of Mr. Thomas and determined his condition was such he needed no medical care other than what was given in the state prison or whether it has failed to refused to make a determination of his case beyond a refusal by the warden of the state prison to reverse the prison doctor's opinion, which presumably is that Thomas is getting adequate treatment.

Since the department is statutorily required to exercise its discretion concerning the adequacy of the health treatment and care of an inmate and this record does not show that it has done so, mandamus will lie to compel the exercise of that discretion. 52 Am.Jur.2d, Mandamus, p. 398, sec. 77; 55 C.J.S. Mandamus § 135, pp. 225, 226. While mandamus will not lie to compel a specific result, the writ will lie to determine whether the discretion was abused or whether the discretion was exercised arbitrarily and capriciously. State ex rel. Knudsen v. Board of Education (1969), 43 Wis.2d 58, 67, 168 N.W.2d 295; State ex rel. Hurley v. Schmidley (1970), 48 Wis.2d 659, 663, 664, 180 N.W.2d 605; 52 Am.Jur.2d, Mandamus, pp. 401, 402, sec. 70. The issue presented by the petition was not whether Thomas' medical condition could be better treated in a hospital than in the prison, because that evaluation is left to the discretion of the department. The question presented was whether the department and its prison employees have made any meaningful determination of Thomas' condition and in doing so have properly exercised their discretion. The petition claims Thomas' attempts to get departmental action have been fruitless. The record does not disclose any action on the part of the department even after Judge Gergen sent the complaining petition to the department. This case seems to be one of continual roadblocks to get to the merits of the controversy. Much time of this court could be saved if similar petitions were decided on their merits rather than having technical and procedural defenses interposed which only delay the ultimate decision and create additional judicial work in the meantime.

We think an order should be granted requiring the department to answer the petition on its merits. The return should be in sufficient detail so that the trial court can determine whether there has been any abuse of discretion ⁶ if a determination has already been made that Thomas does not need the additional medical...