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STATE
OF WISCONSIN CIRCUIT
COURT DANE COUNTY
_____________________________________________________________________
STATE
EX REL SUSAN WILLIAMS
DOC #4861
Taycheedah Correctional Institution
DOC #4861
Taycheedah Correctional Institution
Petitioner,
v.
11CV0304
JOHN HESSE, DIRECTOR
Bureau of Offender Classification
Department of Corrections
3099 East Washington Avenue
Madison, WI 53707-7925
Bureau of Offender Classification
Department of Corrections
3099 East Washington Avenue
Madison, WI 53707-7925
Respondent.
_____________________________________________________________________
PETITIONER’S BRIEF IN SUPPORT OF
AMENDED PETITION FOR WRIT OF CERTIORARI
_____________________________________________________________________
PROCEDURAL
POSTURE
On May 31, 2006, in Sauk County
criminal case 2005 CF 3189, Susan Williams was sentenced to 40 years in prison,
and subsequently, her incarceration has been at Taycheedah Correctional
Institution, a prison in Wisconsin which has both maximum and medium security
confinement. Williams has been housed in
maximum security since her incarceration began at Taycheedah. The Petitioner was convicted for violation of
Wis. Stat. 940.02(1), 1st Degree Reckless Homicide.
Nearly five years later, Williams
applied for a transfer to medium security confinement. On May 30, 2011, the Respondent conducted a
Review of Initial Classification and Re-Classification. Both Petitioner and Respondent agree that
Susan Williams has been a model prisoner throughout her incarceration. The
Inmate Classification Report in the Staff Appraisal and Recommendations section
indicates that, "Inmate's overall adjustment has been positive"
(Exhibit A, Inmate Classification Report, p. 2).
However, in the same Inmate
Classification Report, the Department of Corrections' Bureau of Classification
and Movement determined that the Petitioner should continue to stay in maximum
security confinement. This report asserted,
"She voiced no responsibility/concern
for the death of her victim, only concern was appeal…. Any reduction in her risk factors are unknown as committee
has no idea what led her (to) commit convicted offense based on her silence."
(Exhibit A, p. 3-4, emphasis added).
Susan Williams requested an administrative review in
her letter dated June 7, 2011 which outlined seven reasons why she should be
transferred to medium security (Exhibit B, Letter of June 7, 2011). In addressing the Respondent’s position that
her silence is justification to deny the transfer from maximum to medium
confinement, Ms. Williams stated that discussing the alleged[1]
homicide would complicate her pending appeal.
On August 6, 2011, the Respondent, Mark Heise, upheld the Bureau of
Classification and Movement's decision to keep Ms. Williams in the same maximum
security facility despite admitting that the Ms. Williams conduct was good and overall adjustment has
been positive (Exhibit C, Inmate Correspondence Report, p. 2). Furthermore, the Respondent cited the
Petitioner’s silence as a reason why the Petitioner should be denied her
requested transfer. Once the Respondent
had upheld the decision to keep the Petitioner in maximum security prison, Ms.
Williams had exhausted her options in seeking remedies from the administrative
agency. At this point, the Petitioner
had no remedy but to file a Petition For Writ of Certiorari with this Court.
ARGUMENT
I. THE RESPONDENT HAS VIOLATED
WISCONSIN ADMINISTRATIVE CODE 309.155(2)
On August 6, 2011, the Respondent,
Mark Heise, upheld the Bureau of Classification and Movement's decision to keep
Susan Williams in maximum security confinement at Taycheedah Correctional
Institute. This Respondent admitted that
Ms. Williams's conduct was "good" and "overall adjustment has
been positive" at the prison as did the Bureau of Classification and Movement
in its earlier decision (see Exhibits A and C).
The
Petitioner told the Respondent that, based on her behavior noted in the
preceding paragraph, she should be transferred out of maximum security
confinement and be placed in medium security confinement. The Petitioner pointed out that she is a
mentor and tutor to other inmates, one of only eleven inmates at Taycheedah so
designated and the only mentor confined in maximum security. If she were in medium security confinement,
she would enable her to mentor and tutor five or six days per week instead of
one. Furthermore, Petitioner is engaged
in on-line study for her Bachelor’s degree.
Maximum security reduces by 80%-90% the amount of on-line academic time
compared to medium (See Exhibit B, pp. 1-3).
The Respondent, Mark Heise, rejected
Petitioner's argument stating that, "Comm has no idea what led her to
commit the offense based on her silence." (See Exhibit C, p. 2). The Petitioner’s silence regarding her
conviction is a primary reason she is not transferred from maximum security to
medium security and to change her inmate classification. Therefore, the Respondent has violated
Wisconsin Administrative Code 309.155(2) which states:
(2) Access to courts.
Inmates shall have access to courts and administrative agencies. Inmates'
decisions to seek judicial or administrative relief shall not adversely affect
their program, security classification or assignment to an institution.
The
Petitioner is seeking relief by appealing her criminal conviction. Her appeal is the reason she chooses to be
silent. In turn, her silence has
adversely affected her security classification and assignment at Taycheedah
Correctional Institute.
In the Wisconsin Supreme Court case
of State ex rel. Tate v. Schwartz 2002 WI 27, 257 Wis.2d 40, 654 N.W.2d 438
(2002), the Supreme Court stated that,
"It has been established generally that
the Fifth Amendment privilege extends to those already convicted of a crime,
and even to those who are in prison or *50
on probation when the incriminating statements are made. Id. at ----, ----, 122 S.Ct. 2017, 2026, 153 L.Ed.2d 47 (“[t]he privilege against
self-incrimination does not terminate at the jailhouse door”); Minnesota v. Murphy, 465 U.S. 420, 438, 104 S.Ct. 1136, 79 L.Ed.2d 409
(1984)….
Accordingly, the admissions demanded of him by his treatment program were both self-incriminating and compulsory. Revocation of Tate’s probation for refusing to admit his crime of conviction under these circumstances violated his Fifth Amendment right against self-incrimination." State ex rel. Tate 654 N.W.2d 438 ¶ 18, 22
Accordingly, the admissions demanded of him by his treatment program were both self-incriminating and compulsory. Revocation of Tate’s probation for refusing to admit his crime of conviction under these circumstances violated his Fifth Amendment right against self-incrimination." State ex rel. Tate 654 N.W.2d 438 ¶ 18, 22
Therefore,
the Respondent cannot base their denial of Susan Williams's request to be
transferred to a medium security prison based upon her refusal to admit that
she was guilty of reckless homicide.
Their actions not only violate Wisconsin Administrative Code 309.155(2)
and the caselaw cited in the preceding paragraph, but also the Fifth Amendment
of the U.S. Constitution.
In the same case cited above, the
Supreme Court asserted that:
"Certiorari review … ‘is limited to
four inquiries: (1) whether the Department acted within the bounds of its
jurisdiction; (2) whether it acted
according to law; (3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will, not its judgment; and (4) whether the
evidence was sufficient that the Department might reasonably make the
determination that it did.’ See also Van Ermen v. Dep’t of Health & Soc.
Servs., 84 Wis.2d 57, 63, 267 N.W.2d 17 (1978).
¶
16 This case requires an application of the second inquiry-whether the
Department acted according to law" State ex
rel. Tate 654
N.W.2d 438 ¶ 15, 16 (emphasis added).
Wisconsin
appellate and Supreme Courts have overturned the decision of administrative
agencies in a number of instances and a wide variety of contexts where the
administrative agencies have improperly applied law when making a decision
against a petitioner. Examples in
Wisconsin caselaw where this has occurred are Bratcher v. Housing Authority
of City of Milwaukee[2] 2007 WI App 159, 327 Wis.2d
183, 787 N.W.2d 418 at ¶ 10, 11 (Wis. Ct. Appeal 2010), Solie v. Employee Trust Funds Bd.[3] 2005 WI 42, 279 Wis.2d 615, 695 N.W.2d 463 at ¶23 (2005) and State ex rel. Whiting v. Kolb[4] 158
Wis.2d 226, 461 N.W.2d 816 at 819 (Wis. Ct. Appeal 1990). Consequently, in all three of these cited
cases, the respective courts have ruled in favor of the Petitioners and against
the administrative agencies.
Based on
District IV Appellate Court's holding in State
ex rel. Whiting v. Kolb 158 Wis.2d 226, 461 N.W.2d 816 at 819 (Wis. Ct.
Appeal 1990), the Respondent cannot argue that writ of certiorari review is
only limited to Wisconsin statutes. This appellate case clearly shows that both
circuit court and appellate courts are able to review administrative rules, codes and regulations as well. For this case, the legal issue was whether
the prison’s administrative code was improperly applied by the superintendent
of a Wisconsin prison facility.
II. THE PETITIONER HAS MET THE STANDARDS FOR SUCCESSFULLY HAVING THE RESPONDENT'S ADMINISTRATIVE DECISION REVIEWED
In the aforementioned State ex rel. Tate v. Schwartz,
a four-part review of an administrative decision must be done after a writ of
certiorari. In the instant case, there
are enough facts that warrant the circuit court reviewing, not only the
Respondent's application of DOC 309.155(2), but also determine whether or not
the Respondent's decision was arbitrary, oppressive or unreasonable (which is
the third part of the administrative review for writ of certiorari cases).
Like the circumstances in State ex rel. Tate v. Schwartz Id 654
N.W.2d 438 at ¶22, Susan Williams is still
reserving her right to appeal the trial court's holding that she is
guilty. Therefore, any admission on her
part is obviously detrimental as to whether Petitioner can appeal the jury
verdict. Such an admission was sought by
Respondent in both the Inmate Classification Report and the Inmate
Correspondence Report (Exhibits A and C). If the Respondent is seeking a detrimental
admission from the Petitioner, then the Respondent is making an arbitrary,
unreasonable decision against Susan Williams.
Wisconsin caselaw has indicated that
an administrative agency must not make an unreasonable decision against a
Petitioner as noted in District IV Appellate Court's decision in Richards v. Graham 2011 WI App 100, 336 Wis.2d
175, 801 N.W.2d 821 (Wis. Ct. Appeal 2011).
In Richards, the Petitioner
was a prisoner who contested the decision of Mark Heise and the Prisoner Review
Committee (PRC). The PRC, in their
fourteen-point prison review rating raised Richards' risk rating from low to
"moderate". The Appellate
Court noted that this was done merely because the Parole Commission had given
the Petitioner an adverse review and moved review from a ten-month review to a
twelve-month review.
In Richards,
District IV Appellate Court held,
“As noted, an inmate’s risk rating is but one consideration relevant to
establishing custody classification. In this case, however, the record shows
that the PRC’s arbitrary risk-rating determination was the lynchpin of its
decision to elevate Richards’ custody classification from maximum-community to
medium. We therefore conclude that the PRC’s decision to elevate Richards’
custody classification was also arbitrary.” Richards
801 N.W.2d 821 at ¶ 33
The fact that the
Respondent in the instant case has used Susan Williams's unwillingness to admit
her guilt or innocence cannot be overemphasized. This unwillingness is a decisive factor in
the view of the Respondent in keeping the Petitioner in a maximum security
facility. The Respondent stated,
“Any reduction in her risk factors are
unknown as committee has no idea what led her (to) commit convicted offense
based on her silence." (Exhibit A, p. 3-4).
Therefore, the Petitioner’s silence
does not affect merely one aspect of her overall evaluation by the Respondent;
her silence has a pervasive effect on assessing Petitioner’s other risk factors!
In
District IV Appellate Court's
holding in State ex rel.
Sahagian v. Young 141 Wis.2d 495, 415 N.W.2d 568 (Wis. Ct.
Appeal 1987), this
appellate court outlines the requirements of a writ of certiorari and also
holds that a writ of certiorari does not have to be the full development of a
Petitioner’s position. The Appellate
Court stated:
“However, since a writ of certiorari is not
a writ of right but rather is one which is discretionary with the court, State ex rel. Damerow v. Behrens,11
Wis.2d 426, 429, 105 N.W.2d 866, 868 (1960), a petitioner must make it appear
to the court that (1) there has been some
error committed, (2) the error has caused substantial harm, and (3) the
petitioner has not been guilty of laches in seeking a remedy. The petition for
the writ is not, however, the full development of the petitioner's
position. Sahagian 415 Wis.2d 495 at 501 (emphasis added).
The
Petitioner has, indeed, been harmed by an error caused by the Respondent as
indicated herein. Therefore, the
Petitioner has an additional argument for having the Respondent’s decision
overturned.
Dated in Madison, Wisconsin this 10th day of June, 2014.
Respectfully
submitted
Susan
R. Williams, Petitioner
by:
______________________________________
Peter
D. Bear
Attorney
for Petitioner
[1] In the Petitioner’s view, she
states “alleged homicide”, because she continues to maintain her innocence
despite her conviction.
[2] In Bratcher, the Petitioner filed a Writ of Certiorari after the
Respondent denied her Section 8 Application due to her criminal record. The Appellate Court ruled in favor of the
Petitioner because the Housing Authority of City of Milwaukee did not act
according to the law and did not give Ms. Bratcher adequate notice in ruling
against her Section 8 application.
[3] In Solie, the Respondent, Employee Trust Funds Board, ruled that
Plaintiffs, Joan Solie and Anne Baxter, were not entitled to receive service
credit for years of teaching because of waivers signed. The service credit was used to determine
their teacher pension. The Supreme Court
determined that the Respondent did not properly apply the state statute {Wis.
Stat. § 42.20(6r)(a)} when determining whether the Plaintiffs should obtain
service credit for in terms of their retirement benefit or not.
[4] Whiting,
the Appellate
Court held that the Respondent had misapplied the administrative code {HSS 303.20(3)}. The Petitioner was reprimanded for violating
administrative policy when he was accused of showing gang affiliation after
greeting his brother-in-law with a hug and kiss. The Appellate Court ruled that there was
insufficient evidence to show that this was a display of gang affiliation
rather than simply a greeting.
