State Of Wis. Ex Rel. Hung Nam Tran v. Speech

• Decision Date: 31 March 2010
• Docket Number: No. 2009AP884.,2009AP884.
• Citation: 324 Wis.2d 567,2010 WI App 58,782 N.W.2d 106
• Parties: STATE of Wisconsin ex rel. HUNG NAM TRAN and Eric L. Fankhauser, Petitioners-Appellants,v.Thomas SPEECH, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

324 Wis.2d 567

782 N.W.2d 106

2010 WI App 58

STATE of Wisconsin ex rel. HUNG NAM TRAN and Eric L. Fankhauser, Petitioners-Appellants,^†v.Thomas SPEECH, Respondent-Respondent.

No. 2009AP884.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 13, 2009.

Opinion Filed March 31, 2010.

COPYRIGHT MATERIAL OMITTED

On behalf of the petitioners-appellants, the cause was submitted on the briefs of Hung Nam Tran and Eric L. Fankhauser, pro se.

On behalf of the respondent-respondent, the cause was submitted on the brief of Richard Briles Moriarty, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., NEUBAUER, P.J., and ANDERSON, J.

¶ 1 ANDERSON, J.

Wisconsin Stat. ch. 980 (2007-08) ¹ patients Hung Nam Tran and Eric L. Fankhauser, acting pro se, appeal a final order of the circuit court quashing their writ of certiorari ² and dismissing their petition for a writ of certiorari. They claim that the circuit court erred when it ruled that Warden Thomas Speech ³ of the Wisconsin Resource Center did not violate policy, procedure or law by reducing patient wage rates to below minimum wage. We do not agree and therefore affirm the order of the circuit court.

¶ 2 Procedural history and relevant facts: In a memorandum dated January 31, 2007, Warden Speech directed the reduction in wage rates to below the minimum wage for Wisconsin Resource Center patients civilly committed pursuant to Wis. Stat. ch. 980. This reduction was reflected in the “Patient Work Program Handbook.”

¶ 3 Thereafter, on October 26, 2007, Tran and Fankhauser sought a writ of certiorari, petitioning the circuit court “for review of the procedure and substance regarding the compensated wages for therapeutic labor performed by patients.” In addition, they requested that the court “reverse the order [reducing their wages to below minimum wage] instituted by [Warden] Thomas Speech.”

¶ 4 Tran and Fankhauser pointed to a Wisconsin Resource Center Policies and Procedures document from 2005, which they claim proves that Warden Speech violated Wisconsin Resource Center policy to compensate patients with a wage consistent with current federal minimum wage. This document stated in pertinent part:

It is the policy of the Wisconsin Resource Center that patients are afforded an opportunity to work while residing at the institution and be compensated consistent

with current Federal Minimum Wage. This program and components are administered under the guidelines set forth in the WRC Patient Work Program Handbook.

¶ 5 Subsequently, in a November 9, 2007 writ of certiorari, Warden Speech was ordered by the circuit court to file a return ⁴ within sixty days. On December 3, 2007, the return was filed.⁵

¶ 6 The return confirmed that Tran and Fankhauser were committed as sexually violent persons under Wis. Stat. ch. 980.⁶ It contained the January 31, 2007 memorandum from Warden Speech to “Chapter 980 patients” informing them of “important changes that are being made in the WRC Work Program” effective “March 4, 2007.”

¶ 7 The return also contained:

A Patient Work Program Handbook dated March 4, 2007, that provided details regarding the changes referenced in the January 31, 2007 memorandum.

Certain department policies and procedures relevant to Patient Management Procedures and Employment-Patient at the Wisconsin Resource Center.

Patient Handbook and Unit Rules for the Wisconsin Resource Center.

Awareness reports for petitioners (Tran and Fankhauser).

¶ 8 On March 23, 2009, after briefing was completed, a hearing was held on the merits. However, a copy of the March 23 hearing transcript is not in the appellate record.⁷ On April 21, 2009, the circuit court's final order was filed, quashing Tran and Fankhauser's writ of certiorari and dismissing their petition for a writ of certiorari.

¶ 9 Tran and Fankhauser filed a notice of appeal on April 1, 2009. ⁸ On appeal, they argue that they “are patients under the Mental Health Act and the minimum wage provision under sec. 51.61(1)(b) Wis. Stats. is applicable to them.” They also assert that the “trial court erred when [it] ruled that Speech did not violate[ ] WRC policies and procedures, the Wisconsin Administrative Code, the Wisconsin Statute § 51.61.(1)(b) and substantive due process of law when Speech failed to compensate appellants the required minimum wages for their therapeutic labor.”

¶ 10 Law and discussion: Whether Tran and Fankhauser-Wisconsin Resource Center patients civilly committed pursuant to Wis. Stat. ch. 980-are employees under federal or Wisconsin minimum wage law is a question of law we decide de novo. See State v. Johnson, 2007 WI 107, ¶ 27, 304 Wis.2d 318, 735 N.W.2d 505.

¶ 11 In Sanders v. Hayden, 544 F.3d 812 (7th Cir.2008), the Seventh Circuit reviewed this very issue. Sanders, like Tran and Fankhauser, was “civilly committed to a secure treatment facility-the Wisconsin Resource Center-as a sexually violent person” under Wis. Stat. ch. 980. Sanders, 544 F.3d at 813-14. Sanders sued “state officials, claiming that they violated his federal rights by reducing his pay for the work he performs at the Center.” Id. In construing Sander's pro se complaint as one made under the Fair Labor Standards Act (FLSA), the Seventh Circuit confirmed, through numerous case law citations,⁹ that it was well established that “[p]rison and jail inmates are not covered by the FLSA.” Sanders, 544 F.3d at 814.

¶ 12 Among the cases it relied on was Bennett v. Frank, 395 F.3d 409 (7th Cir.2005). In Bennett, the Seventh Circuit noted that the FLSA defines “employee” as “any individual employed by an employer” and defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency.” Bennett, 395 F.3d at 409; see also 29 U.S.C. §§ 203(e)(1), (d) (2006). The court in Bennett further noted that “there are some excepted classes of employees, § 203(e)(2), (3), (4), but prisoners are not among them.” Bennett, 395 F.3d at 409.

¶ 13 Nevertheless, the Seventh Circuit's examination of the FLSA and relevant case law led to its conclusion that the statute does not apply to prisoners or civilly committed patients. Its cogent discussion is worth repeating. First, it quoted the following passage from its holding in Bennett:

[P]eople are not imprisoned for the purpose of enabling them to earn a living. The prison pays for their keep. If it puts them to work, it is to offset some of the cost of keeping them, or to keep them out of mischief, or to ease their transition to the world outside, or to equip them with skills and habits that will make them less likely to return to crime outside. None of these goals is compatible with federal regulation of their wages and hours. The reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress. [ Bennett v. Frank,] 395 F.3d [409,] 410 [ (7th Cir.2005) ].

Sanders, 544 F.3d at 814 (emphasis added).

¶ 14 Then, referring to its Bennett analysis regarding prisoners, the Seventh Circuit explained why its conclusion translates to civilly committed patients:

If the words “confined civilly as a sexually violent person” are substituted for “imprisoned” in the first sentence and “secure treatment facility” for “prison” in the second sentence, the quoted passage applies equally to the present case, as held in Hendrickson v. Nelson, No. 05-C-1305, 2006 WL 2334838 (E.D.Wis. Aug.10, 2006). And years earlier the First Circuit had held that persons civilly committed because they were sexually violent were not covered by the FLSA, noting that “the minimum wage is not needed to protect the appellants' well-being and standard of living.... SDPs [sexually dangerous persons], like the more common run of prisoners, are cared for (and their standard of living is determined, within constitutional limits) by the state.... [And] the payment of sub-minimum wages to SDPs presents no threat of unfair competition to other employers, who must pay the minimum wage to their employees, because the Treatment Center does not operate in the marketplace and has no business competitors.” Miller v. Dukakis, 961 F.2d 7, 9 (1st Cir.1992) (per curiam).

Sanders, 544 F.3d at 814.

¶ 15 We agree with the Seventh Circuit: persons civilly committed because they were sexually violent are not covered by the FLSA. Tran and Fankhauser do not need the minimum wage to protect their well being and standard of living. See Sanders, 544 F.3d at 814. They are cared for (and their standard of living is determined, within constitutional limits) by the state. See id.

¶ 16 This interpretation of the federal law matches our understanding of Wisconsin law. Just as persons civilly committed because they were sexually violent are not intended to be and are not employees under the federal law, they are not intended to be and are not employees under Wis. Stat. ch. 104, Wisconsin's minimum wage law.

¶ 17 Wisconsin's legislative history provides further support that Wis. Stat. ch. 980 patients are not employees under our current Wisconsin minimum wage law. Examination of Wis. Stat. § 51.61, the patients rights provision of the Wis. Stat. ch. 51 Mental Health Act, reveals an ongoing legislative intent and understanding that patients covered by this provision-which has included ch. 980 patients since 1994 ¹⁰-have never been employees under Wis. Stat. ch. 104. Previously, when the legislature intended to grant ch. 980 patients minimum wage privileges, it chose language to reflect this intent; more recently, when it decided to no longer grant this privilege, it changed the language of the statute to reflect this changed intention. When § 51.61 was created in 1975,¹¹ it granted a patient covered by its provisions the benefits of minimum wage compensation for labor. See § 51.61(1)(b) (1975). Except as otherwise provided, a patient was to “[r]eceive wages or an...