STATE EX REL. Kathleen BRAUN, Petitioner-Appellant v. Kristine KRENKE, Mary Sheridan, Nona Switala and Walter Dickey, Respondents
No. 87-1089
Court of Appeals of Wisconsin
July 28, 1988
429 N.W.2d 114 | 146 Wis. 2d 31
For the respondents the cause was submitted on the brief of Paul W. Schwarzenbart and Lee, Johnson, Kilkelly & Nichol, S.C., of Madison.
Before Dykman, Eich and Sundby, JJ.
DYKMAN, J. Kathleen A. Braun, an inmate at the Taycheedah Correctional Institute (TCI), petitioned for a writ of certiorari to review a Program Review Committee (PRC) decision and TCI’s Superintendent’s decisions on her inmate complaint and on her challenge regarding information in her inmate record. The circuit court ordered the writ quashed after concluding that respondents either followed proper procedures, or in the instances where they may have failed to do so, no harm resulted to Braun. The issues are: (1) whether Braun may seek judicial review through a writ of certiorari of the issues raised in her inmate complaint when she did not exhaust administrative remedies; (2) whether the Inmate Complaint Review System (ICRS) can be used to contest either a PRC decision or a decision on a challenge to an inmate record; and (3) whether there is substantial evidence to support the PRC’s and the superintendent’s determinations.
FACTS
On October 8, 1985, Braun gave a guard a letter in which she complained about another guard’s behavior, i.e., that the guard gave preferential treatment to a lesbian inmate. Among other things, Braun recounted in her letter a disturbance caused by an inmate while in or near the social services office, where Braun was on duty as an aide.
A staff member turned Braun’s letter over to the security director, who investigated the letter’s allegations. The security director placed Braun in temporary lockup pending the investigation, but released her the next day. During her investigation, the security director interviewed only those individuals involved in Braun’s allegations, and interviewed none of Braun’s witnesses. Based on her investigation, the security directory charged Braun with “lying about staff,” a violation of
On October 19, 1985, Krenke, Braun’s supervisor at social services, administratively removed Braun from her job. In her memo to Braun, Krenke alleged that Braun had broken the unwritten work rule: “what happens in Social Services stays in Social Services.” Krenke accused Braun of providing a written summary of the inmate incident in social services to an officer and of openly discussing the social services’ inmate incident. On October 23, 1985, the PRC changed Braun’s job, noting the following in its written summary: “[Braun] was recently administratively removed from her job as social service aide because she violated the conditions of [that] position by not keeping information that she became aware of on the job confidential.”
Braun appealed to the superintendent, requesting that the information about her job removal be deleted from her record as erroneous. She also requested not to be placed again in the social services aide position. Braun admitted she had spoken to an officer about the incident in social services, but claimed that the officer already knew about it. The superintendent concluded the information was accurate and refused to delete it.
Braun wrote to Walter Dickey, Administrator of Wisconsin Division of Corrections, complaining about her treatment. Dickey suggested that she file an inmate complaint. On December 21, 1985, she filed a complaint alleging the following: (1) that for no reason she was put in temporary lockup pending investigation; (2) that the security director did not conduct an impartial investigation because she only questioned the persons involved in Braun’s complaint, and ques-
Braun alleged that because she was found not guilty at the conduct report hearing, Krenke had retaliated against her by removing her from her job and by attempting to remove her from honor housing. She requested that the remark on her October 23, 1985 PRC summary relating to her previous job removal be removed from her record as erroneous. She did not request removal of the information about the attempted housing change.
The inmate complaint investigator investigated Braun‘s complaint, and on January 29, 1986, recommended that the superintendent remove the job removal remark from Braun‘s record. On January 31, 1986, the superintendent refused, stating that the remark was accurate.
On February 8, 1986, Braun appealed the superintendent‘s decision to the Corrections Complaint Examiner. On February 24, 1986, the examiner acknowledged receipt of Braun‘s appeal, stating that if Braun did not hear from him within thirty-two working days, Braun should write to the secretary of the Department of Health and Social Services (DHSS). On April 18, 1986, Braun wrote to the investigator telling her that Braun had not yet heard from the examiner. Braun also asked whether she should wait longer. The investigator wrote back on April 21, 1986, telling
Braun later applied for a paralegal position. The Program Review Committee (PRC) interviewed her on October 22, 1986 but did not recommend Braun for the position because she had violated a work-related confidentiality rule while a social services aide. The PRC deferred considering Braun for the paralegal job “for a period of time to further evaluate her progress and ability to follow all rules, including those dealing with information (confidential).”1
On October 29, 1986, Braun appealed this PRC decision to the superintendent. On November 14, 1986, the superintendent denied Braun’s appeal, citing her previous PRC summary, Krenke’s October 19, 1985 memo and the superintendent’s earlier decision on Braun’s challenge regarding information in her previous PRC summary. On November 20, 1986, Braun petitioned for a writ of certiorari, requesting a review of all of the administrative actions complained of, and that they be declared void. Braun sought the removal of certain allegedly erroneous remarks from her record. Braun also sought an order prohibiting the use of administrative removals from housing units and PRC-approved programs in lieu of issuing conduct reports. The trial court ordered her writ quashed.
STANDARD OF REVIEW
“The well-settled rule in Wisconsin is that on review by certiorari the reviewing court is limited to determining: (1) Whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.” State v. Goulette, 65 Wis. 2d 207, 215, 222 N.W.2d 622, 626 (1974), quoted in State ex rel. Palleon v. Musolf, 120 Wis. 2d 545, 549, 356 N.W.2d 487, 489
Braun appealed the superintendent‘s decision on her inmate complaint to the Corrections Complaint Examiner. The examiner failed to make a recommendation to the division administrator within 37 calendar days, as required by
Wisconsin Adm. Code, sec. HSS 310.09(10) provides that if the Corrections Complaint Examiner fails to act within the prescribed time, the superintendent‘s decision shall be affirmed.
Certiorari lies only to review a final agency determination. State ex rel. Czapiewski v. Milw. C. S. Comm., 54 Wis. 2d 535, 539, 196 N.W.2d 742, 744 (1972). Judicial relief will generally be denied until parties have exhausted their administrative remedies. League of Women Voters v. Outagamie County, 113 Wis. 2d 313, 320, 334 N.W.2d 887, 890 (1983). The exhaustion doctrine “provides state agencies with the opportunity to correct their own errors and prevents premature judicial incursions into agency activities,” “promotes judicial efficiency” and often allows conflicts to be “resolved without resort to litigation.” Kramer v. Horton, 128 Wis. 2d 404, 418, 383 N.W.2d 54, 59, cert. denied, 479 U.S. 918 (1986). To escape the exhaustion requirement, Braun must prove that DHSS “either cannot or will not afford [her] adequate relief.” Id. at 420, 383 N.W.2d at 60.
Braun has not alleged that DHSS is inherently biased, that it is unwilling or unable to hear her claim, or that an appeal to DHSS would have been futile. Braun has not explained her failure to appeal the inmate complaint decision to the DHSS secretary. Braun’s failure to pursue her administrative remedies by means of a
Braun claims that she was unconstitutionally deprived of her liberty interest in a program assign-
In denying Braun’s appeal of the second PRC decision, the superintendent wrote:
I have reviewed the PRC comments of 10/22/86. I note the main concern in not recommending your name to the LAIP staff was based on the fact that you had been removed from your Gower aide position by the Program Review Committee on 10/23/85, as a result of violating work rules for that job. Their decision seems to be consistent with the reasons for your administrative removal from your job as social service aide noted in Ms. Krenke’s memo to you dated 10/19/85. I further note my reply to your letter of 10/24/85, appealing the PRC decision of 10/23/85. My reply dated 10/31/85, is supportive of the reasons as to your removal from your job.
Having reviewed the above information and current PRC comments of 10/22/86, I again concur with their decision.
The superintendent based her decision to deny Braun’s appeal in part on her prior denial of Braun’s earlier appeal in which she challenged certain information in the October 23, 1985 PRC summary.
Central to the disposition of this case is the validity of the information found in the October 23, 1985 PRC summary. If “the evidence [is] such that [the superintendent] might reasonably make the ... determination” that the information was accurate, Goulette, 65 Wis. 2d at 215, 222 N.W.2d at 626, then the
The October 23, 1985 PRC decision contained the following language: “[Braun] was recently administratively removed from her job as social service aide because she violated the conditions of [that] position by not keeping information that she became aware of on the job confidential.” This information was based on Krenke’s October 19, 1985 memo to Braun:
The reason for this [administrative] removal is that you disseminated information, which you became aware of while conducting your duties as Social Service Aide. This information concerned another inmate. Specifically you provided a written summary of an incident regarding Inmate Beattie to Officer Longdin, and you openly discussed the Beattie situation. I feel this is a violation of a condition of the Social Service Aide position (what happens in Social Service stays in Social Service), and more important, an indication of your inability to deal with work-related information in a confidential nature.
Braun challenged the accuracy of the information in the PRC summary in an appeal to the superintendent.6 The superintendent refused to strike the language complained of from the PRC summary, basing her decision on Krenke’s memo and her conversations with Krenke.7
There is no statement in the October 23, 1985 PRC decision that Braun knew the rule.8 However, in her October 19, 1985 memo to Braun, Krenke states that following this rule was a job condition. Krenke’s memo provides substantial evidence that compliance with the unwritten rule was a job condition, and that
In her appeal of the October 23, 1985 PRC decision to the superintendent, Braun admits that the event happened in the social service area.
With regard to whether Braun disseminated the information, Braun admits that the following conversation took place: “I simply asked Ms. Wendell, ‘How’s Jackie?’ She took the conversation from there, the main thrust of it being ‘if Jackie had done what I suggested, none of this would have happened.’” This evidence is such that the superintendent could reasonable determine that Braun discussed the social services incident with someone outside of social services, i.e., Ms. Wendell.
As to whether the information was work-related, Braun claims the information was not work-related because it was related to a public outburst in a public waiting area. The superintendent told Braun that social services director Krenke stated that aides were specifically forbidden to discuss what they see or learn at the worksite, and that it did not matter how many other people saw the incident. This evidence is such that the superintendent could reasonably determine that the information was work-related.
We conclude that “taking into account all the evidence in the record, ‘reasonable minds could arrive at the same conclusion as the [superintendent].’” Madison Gas & Elec. Co. v. Public Serv. Comm., 109 Wis. 2d 127, 133, 325 N.W.2d 339, 342-43 (1982)
Because the information in the first PRC summary is valid,9 it provides a reasonable basis for the second PRC decision to defer consideration of Braun for the paralegal position. We therefore affirm that decision.
By the Court —Order affirmed.
SUNDBY, J. (dissenting). Because I do not believe that the superintendent’s decision is supported by substantial evidence, I dissent. “Evidence that is relevant, probative, and credible, and which is in a quantum that would permit a reasonable factfinder to base a conclusion upon it, is ‘substantial’ evidence.” Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330 N.W.2d 169, 173 (1983). The superintendent’s decision was based upon Krenke’s self-serving statements and uncorroborated hearsay. An administrative body may not base an administrative finding on uncorroborated
The superintendent should have accepted the recommendation of the inmate complaint investigator that Braun’s request be honored to have the program review committee’s negative comments removed from her file. It is regrettable that so much institutional and judicial effort has been expended on a problem which could have been easily resolved.