IN MATTER OF APPLICATION OF PRISON LITIGATION REFORM ACT IN STATE EX REL. JASON J. CRAMER v. DAVID H. SCHWARZ: STATE OF WISCONSIN EX REL. JASON J. CRAMER, Petitioner v. WISCONSIN COURT OF APPEALS, Respondent.
No. 99-1089-OA
Supreme Court of Wisconsin
July 7, 2000
Motion for reconsideration denied September 14, 2000
2000 WI 86 | 613 N.W.2d 591
For the respondent the cause was argued by Corey F. Finkelmeyer, assistant attorney general, with whom on the brief was James E. Doyle, attorney general, and David C. Rice, assistant attorney general.
An amicus curiae brief was filed and there was oral argument by Eric J. Callisto, assistant attorney general, for the State of Wisconsin.
¶ 1. DAVID T. PROSSER, J. This is an original action to determine whether the Wisconsin Prisoner Litigation Reform Act (PLRA), created by
¶ 2. The applicability of the PLRA depends upon whether the prospective litigant is a prisoner. Cramer
¶ 3. The issue is whether a person challenging the revocation of probation on a withheld sentence is a “prisoner” who must satisfy PLRA filing requirements. We hold that a petitioner who pursues relief from a probation revocation by a writ of certiorari is a prisoner subject to the PLRA. Writs of certiorari that seek to overturn a revocation of probation are civil actions and are not analogous to criminal appeals that challenge a judgment of conviction or sentence. We conclude that Crаmer‘s writ of certiorari therefore should have been filed within the 45-day deadline established by
¶ 4. The State of Wisconsin has filed a nonparty brief in this case asking the court to determine whether the PLRA applies to prisoners confined outside the state. We decline to address that issue here for two reasons. First, Cramer was not housed in an out-of-state facility. We conclude that a decision of this far-reaching impact is better postponed for a different case, in which the factual circumstances are more compelling and all parties have briefed the matter.3 Second, the court of appeals recently examined the issue in two cases.4 We hesitate to disturb those decisions absent a direct appeal to this court.
¶ 5. The record before the court is sparse because this case comes to us as an original action. Consequently, we derive the operative facts from the stipulation entered by the parties and from the decisions and orders issued below.5
¶ 6. On April 8, 1998, Cramer was convicted in Dane County Circuit Court of Physical Abuse of a Child, Battery, Bail Jumping, and Disorderly Conduct. The court withheld the sentences on these convictions and placed Cramer on probation for concurrent three-year terms.
¶ 7. On April 20, 12 days after these convictions, Cramer was arrested on new charges. Probation revocation proceedings were initiated, and the final revocation hearing was held before an Administrative Law Judge (ALJ) on August 31. The ALJ issued a decision on September 9, revoking Cramer‘s probation on all counts. Cramer qualified for, and was represented by, counsel from the Office of the State Public Defender at the revocation hearing and at subsequent proceedings.
¶ 8. Cramer pursued an administrative appeal before the Division оf Hearings and Appeals. On September 28 the division sustained the order of revocation.
¶ 9. On November 10 Cramer filed a petition for writ of certiorari with the Dane County Clerk of Circuit Court, seeking review of the order of revocation. The office of the clerk refused to accept the petition because
¶ 10. The circuit court entered an order dismissing the action because Cramer had violated the statutory 45-day PLRA filing deadline. Cramer did not argue, and the circuit court did not address, whether he was a prisoner within the meaning of the PLRA. Rather, the court found that under
¶ 11. On February 18, 1999, Cramer filed a motion for reconsideration, arguing in part that a litigant seeking review of probation revocation is not a prisoner under the PLRA, and therefore the 45-day time filing limit does not apply to him. The statutory definition of “prisoner” as it applies to the PLRA appears in
¶ 12. Cramer maintained that he satisfied the exception to the definition of “prisoner” because the revocation of his probation had the effect of returning him to the court for sentencing. The court disagreed, finding that Cramer was not excluded from the definition because he was not seeking relief from a judgment of conviction or a sentence. The court relied on State ex rel. Flowers v. H&SS, 81 Wis. 2d 376, 384, 260 N.W.2d 727 (1978), to conclude that revocation proceedings cannot be analogized to a judgment of conviction or a sentence imposed by a court. The court therefore held that Cramer was subject to PLRA filing requirements and on March 1, 1999, denied his motion to reconsider.
¶ 13. Cramer filed a notice of appeal, seeking review of the dismissals of both his petition and the motion to reconsider. The court of appeals did not receive the filing fee that
¶ 14. The court of appeals previously had held that a revoked probationer seeking review by writ of habeas corpus must comply with the PLRA and pay filing fees. State ex rel. Marth v. Smith, 224 Wis. 2d 578, 592 N.W.2d 307 (Ct. App. 1999) (per curiam). The court suggested that under that precedent, Cramer might be a prisoner required to satisfy PLRA filing procedures. If Cramer were not a prisoner, however, a request for waiver of the filing fee would be handled like other fee waiver requests by non-prisoners, subject to the procedure established by
¶ 15. On May 13, 1999, while Cramer awaited this court‘s decision about his petition for original action, he was sentenced in Dane County Circuit Court. He received eight months for the Bail Jumping charge and 90 days concurrent for the Disorderly Conduct charge. Because Cramer had 199 days sentence credit and statutory good time, both of these sentences were deemed served. He also was sentenced to 10 months, to run consecutive with the other sentences, for the Child Abuse charge, and another nine months, concurrent, for the Battery charge. These latter two sentences, however, were stayed for acceptance and participation in a Treatment Altеrnative Program. Cramer was accepted into the program on June 10 with an anticipated completion date of December 10, 1999.
¶ 16. This court granted the petition for the original action on September 28, 1999, and assumed jurisdiction over the matter. On October 5 the court of
STANDARD OF REVIEW
¶ 17. This case presents an issue of statutory interpretation. Statutory interpretation is a question of law that this court reviews independently. State v. Bodoh, 226 Wis. 2d 718, 724, 595 N.W.2d 330 (1999). This court engages in statutory construction to discern the intent of the legislature. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992). Our duty to fulfill legislative intent ensures that we uphold the separation of powers by not substituting judicial policy views for the views of the legislature. See State v. Sample, 215 Wis. 2d 487, 495, 573 N.W.2d 187 (1998).
¶ 18. The process of statutory interpretation begins with the language of the statute. Kelley Co., 172 Wis. 2d at 247. When a statute unambiguously expresses the intent of the legislature, we apply that meaning without rеsorting to extrinsic sources. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). If a statute is ambiguous, the reviewing court turns to the scope, history, context, and purpose of the statute. Id. at 366-67. A statute is ambiguous if reasonably well informed persons can understand it in more than one way. Kryshak v. Strigel, 208 Wis. 2d 1, 8, 559 N.W.2d 256 (1997). This court attempts to resolve any ambiguities in a manner that advances the legislature‘s purpose in enacting the statute. State v. Corey J.G., 215 Wis. 2d 395, 412, 572 N.W.2d 845 (1998).
¶ 19. We begin by noting that the issue, whether Cramer is a prisoner subject to the PLRA, in all probability is moot because Cramer was scheduled to be discharged from his sentences on December 10, 1999. Nonetheless, both Cramer and the Respondent, the Wisconsin Court of Appeals, ask the court to address the merits of the case. We agree to do so here because the situation in question is likely to occur with such frequency that a decision from this court will guide the circuit courts and alleviate uncertainty. State v. Gray, 225 Wis. 2d 39, 66, 590 N.W.2d 918 (1999).
¶ 20. The PLRA establishes the procedural requirements that рrisoners must satisfy when filing certain types of actions. The legislature has dispersed these requirements throughout a number of statutory sections that comprise the PLRA.
¶ 21. Among these statutory provisions is
¶ 22. The PLRA applies only to those litigants who are prisoners under the definition set forth in
“Prisoner” means any person who is incarcerated, imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise detained by a law enforcement officer. “Prisoner” does not include any of the following:
A person committed under ch. 980. - A person bringing an action seeking relief from a judgment terminating parental rights.
- A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under s. 809.30, 809.40, 973.19, or 974.06.
- A person bringing an action under s. 809.50 seeking relief from an order or judgment not appealable as of right that was entered in a proceeding under ch. 980 or in a case specified under s. 809.30 or 809.40.
- A person who is not serving a sentence for the conviction of a crime but who is detained, admitted or committed under ch. 51 or 55 or s. 971.14(2) or (5).
Cramer contends that he satisfies the exception articulated in
¶ 23. We must determine whether Cramer, a litigant seeking certiorari review of the revocation of probation on a withheld sentence, is a “prisoner” subject to the PLRA. Cramer argues that he is bringing an action for extraordinary relief from a judgment of conviction or sentence. Whether Cramer is a prisoner therefore hinges on whether a writ of certiorari challenging a probation revocation is the same as “relief from a judgment of conviction or a sentence of a court.”
¶ 24. We conclude that the words “relief from a judgment of conviction or a sentence of a court,” as used in
¶ 25. The first step in statutory interpretation is to begin with the language of the statute itself. Juneau County v. Courthouse Employees, 221 Wis. 2d 630, 641, 585 N.W.2d 587 (1998). If the statutory language clearly reveals the legislative intent, it is our duty to apply that intent and not look beyond the plain meaning of the statute. Kelley Co., 172 Wis. 2d at 247. Usually, if a statute is unambiguous, this court does not turn to extrinsic evidence to ascertain legislative intent. Reyes, 227 Wis. 2d at 365.
¶ 26. In this case, Cramer and the Wisconsin Court of Appeals both find the plain meaning of
¶ 27. It is a well established principle that probation revocation is a civil determination distinct from the underlying criminal proceeding that ends in a judgment of conviction and sentence. State ex rel. Flowers, 81 Wis. 2d at 384; State ex rel. Marth, 224 Wis. 2d at
¶ 28. A petitioner challenging a probation revocation, by contrast, seeks relief from a proceeding distinct from the criminal process. A probation revocation is the product of an administrative, civil proceeding that occurs after the adversarial criminal prosecution has ceased. Id. at 650. The mechanism for challenging a probаtion revocation is a writ of certiorari that asks a circuit court to review the administrative decision. Id. at 652; State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (1997). The challenge does not intersect with the continuation of the criminal proceedings, and it does not undermine the decision of the circuit court that convicted or sentenced the defendant. A revocation decision implicates wide-ranging, intangible factors that are irrelevant to the criminal prosecution. State ex rel. Flowers, 81 Wis. 2d at 385. A writ of certiorari seeking relief from the revocation of probation strikes at the correctness of the civil decision8 and does not constitute a collateral attack on the criminal conviction
¶ 29. Moreover, the consequences of a successful challenge of a judgment of conviction or sentence and the successful challenge of a probation revocation are patently different. An appeal or writ seeking relief from a judgment of conviction or sentence implicates the core liberty interest of the defendant. A successful challenge to a probation revocation, however, does not disturb the conviction or sentence; it only reinstates the probation initially imposed. Id. at 385-86; see also State ex rel. Johnson, 50 Wis. 2d at 547-48 (recognizing that probationers legally are in custody although not confined in a penal institution). Litigants seeking to overturn a probation revocation do not seek relief from the sentence. Instead, they pursue a return to probation.
¶ 30. The distinction that we draw between the original criminal prosecution and the subsequent civil action was recognized by the court of appeals in two per curiam decisions. In State ex rel. Marth, 224 Wis. 2d 578, the court interpreted a pro se habeas petition as a petition for certiorari review of Marth‘s probation revocation. Id. at 583. Turning to a decision from the Court of Appeals for the Seventh Circuit, the court explained that “[c]omplaints about denial of parole, revocation of parole, and the like, do not affect the validity of the criminal sentence, and this litigation therefore cannot be called a functional continuation of the criminal prosecution.” Id. at 582-83 (quoting Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997), rev‘d, Lee v. Clinton, 209 F.2d 1025 (7th Cir. 2000)). The court concluded that probation revocations are distinct from underlying criminal proceedings and therefore constitute an independent civil action. Id. at 583.
¶ 32. Equipped with an understanding of these distinctions, a reasonably well informed person would conclude that the revocation of probation is not synonymous with a judgment of conviction or sentence. Were this court to read relief from “probation revocation” into the plain meaning of “relief from a judgment of conviction or a sentence,” we would blur irrevocably the historical lines drawn between the two types of proceedings. More significant, we would insert a broad exception into the statute that the legislature did not explicitly enact. The decision to write an exception into a statute is best reserved for the legislature. Motola v. LIRC, 219 Wis. 2d 588, 614, 580 N.W.2d 297 (1998) (Abrahamson, C.J., dissenting).
¶ 33. We find that
¶ 34. In his brief to this court, Cramer argues that the two forms of relief are not distinguishable because by attempting to overturn the revocation, he sought to vacate the sentence and reinstate probation. We disagree. The purpose of Cramer‘s writ of certiorari was to challenge the revocation of his probation, the prerequisite to his sentence by the court. Failure to challenge the revocation by writ of certiorari in a timely manner is similar to failure to file an appeal in a timely manner. Relabeling the challenge as an attack on the sentence cannot resurrect what Cramer waived by his failure to meet statutory deadlines. Before the passage of the PLRA, the right to challenge the revocation of probation by a writ of certiorari would have been extinguished at six months. The legislature simply determined that the right to challenge by this writ should be exercised within 45 days.
¶ 35. We hold that a person seeking relief from a probation revocation by a writ of certiorari does not qualify for the exception to the definition of “prisoner” created by
¶ 37. The well established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face. Kelley Co., 172 Wis. 2d at 247. No canon, however, prevents this court from examining legislative history “to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous.” State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991); see also Sample, 215 Wis. 2d at 508-09 (Abrahamson, C.J., concurring). We better fulfill our duty to effectuate legislative intent by verifying that our understanding of a statute conforms with its history.
¶ 38. The inspiration for passage of the PLRA came from the federal PLRA, which seeks to curtail malicious and frivolous inmate lawsuits about prison conditions. Draft #7, Aug. 9, 1996, to 1997 AB 688. The principal sponsor of
¶ 39. Although litigation about prison conditions served as the original impetus for passage of
¶ 40. The history of the legislation also reveals that the PLRA was not designed exclusively to restrict frivolous lawsuits but rather to limit broadly prisoner litigation at taxpayers’ expense. In a letter addressing an early draft of 1997 AB 688, Joseph Ehmann, First Assistant State Public Defender, recognized that the Wisconsin lеgislation is more far-reaching than the federal PLRA: “The federal statute is, I believe, limited to court actions arising from grievances relating to conditions of confinement. Assembly Bill 688 contains no such limitation or any limiting language at all. The bill applies to ‘an action’ (i.e. any action) brought by ‘a
¶ 41. Revisions to the proposed bill indicate that the legislature intended to exclude certain types of actions from the reach of the PLRA to preserve a distinction between civil and criminal proceedings. An early draft of 1997 AB 688 provided:
Review by common law writ of certiorari is a prisoner‘s exclusive remedy for doing any of the following:
- Challenging the validity of a decision relating to prisoner discipline, the revocation of probation or the denial or revocation of parole.
- Challenging the disposition of a complaint concerning prison or jail conditions, including a complaint concerning a program assignment, institution assignment or security classification, for which there is an adequate administrative remedy.
Dec. 30, 1997 Draft of 1997 AB 688, § 13. Public Defender Ehmann suggested that making certiorari review the exclusive remedy for challenging revocation conflicted with this court‘s precedent in State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 523, 563 N.W.2d 883 (1997), which held “that habeas corpus was a proper method for [a defendant] to use in challenging. .probation revocation.” Assistant Attorney General Charles D. Hoornstra similarly recommended striking the language to “[a]void creating other difficulties with the criminal law, particularly in the area of habeas corpus.” Letter of Charles D. Hoornstra to Hon. Robert Goetsch, Jan. 21, 1998, p. 2. The final version of the PLRA did not include this provision, indicating that the legislature was cautious about intruding into
an area in which criminal defеndants have the option of pursuing constitutional avenues.
42. Most significant, the definition of “prisoner” itself underwent critical revisions during the genesis of the PLRA. An early draft created no exceptions to the meaning of prisoner set forth in
43. Hoornstra explained that the purpose of this addition was to “[a]ssure exclusion of the criminal appeals process” from the reach of thе PLRA. Id. Hoornstra‘s motive for inserting the language about writs seeking relief from a “judgment of conviction or a sentence of a court” thus distinguishes between the original criminal proceeding, which is protected from the PLRA by the appellate process, and other civil actions, such as certiorari review of probation revocations, that fall under the PLRA.
44. A January 28, 1998, draft of the legislation modified the definition of prisoner and excluded a “person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ.” Jan. 28, 1998, Draft of 1997 AB 688, § 13. The word “writ” in this version was not modified by “judgment of conviction or a sentence of a court.” But Assembly
45. Taken together, the legislative history does not support Cramer‘s theory that a civil action for certiorari review of probation revocation is exempt from the requirements of the PLRA. The extrinsic evidence reinforces our conclusion that
46. Having examined the legislative history of the Wisconsin PLRA, we turn to Cramer‘s reliance on decisions from federal courts. We do not find these decisions interpreting federal law controlling with respect to the Wisconsin PLRA.
47. The federal decisions are distinguishable from the present case for two reasons. First, in the federal system, a writ of habeas corpus is the usual mechanism for contesting revocations. Federal courts generally agree that habeas corpus is a hybrid proceeding that uniquely blends both criminal and civil components. Davis v. Fechtel, 150 F.3d 486, 488 (5th Cir. 1998); McIntosh v. United States Parole Comm‘n, 115 F.3d 809, 811 (10th Cir. 1997); Blair-Bey v. Quick, 151 F.3d 1036, 1039 (D.C. Cir. 1998). The decisions upon which Cramer relies all turn on the fact that a habeas petition is not a “civil action.” Unlike civil actions, habeas proceedings attack the constitutionality of the underlying criminal prosecution. They represent “an attack by a person in custody upon the
48. In Wisconsin, by contrast, a writ of certiorari is the common route for reviewing probation revocations, not a habeas writ.10 See State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 183-84, 572 N.W.2d 505 (Ct. App. 1997). Writs of certiorari are civil actions that challenge the decision of an administrative body, not the circuit court. See Horn, 226 Wis. 2d at 652. The fedеral cases arising as habeas proceedings are not persuasive for this case. Cramer‘s action is purely a civil one. He did not appeal the original criminal proceeding, and he did not attack the legality of custody. Rather, Cramer sought reinstatement of probation.
49. Second, the federal courts recognize that “[t]here is no evidence that Congress might have relied on a preexisting distinction between ‘criminal’ and ‘civil’ habeas corpus petitions when it enacted the PLRA.” Davis, 150 F.3d at 490 (quoting Blair-Bey, 151 F.3d at 1040). The legislative history of the Wisconsin PLRA, on the other hand, suggests that our legislature sculpted a distinction between writs seeking criminal and civil relief. The decision to exclude from the definition of “prisoner” persons pursuing relief from judgments of conviction or sentences was meant to preserve the traditional means to attack convictions and sentences but not to afford unlimited oppоrtunity to
50. Having concluded that Cramer is a prisoner subject to the filing requirements of the PLRA, we find that his petition for certiorari review was not timely filed under the 45-day deadline imposed by
CONCLUSION
51. We hold that a petitioner who seeks to overturn the revocation of probation by a writ of certiorari is a “prisoner” within the meaning set forth in
By the Court.—Rights declared and relief denied.
52. ANN WALSH BRADLEY, J. (dissenting).
The majority declares that litigants seeking to overturn a probation revocation are not really requesting relief from a sentence but rather are merely seeking a return to probation. This is a distinction without a substantive difference. Why do litigants want to return to
53. Yet, the majority elevates form over substance to deny the petitioner his right of access to the courts of this state. Its rigid construction of probation revocations as civil proceedings subject to PLRA ignores the essence of such actions in the present context and also finds little support in the text or purpose of the statute. Rather, these sources reveal that a petitioner challenging probation revocation via a writ of certiorari does not fall under the definition of “prisoner” set forth in
54.
55. The majority unconvincingly endeavors to distinguish certiorari challenges to probation revocation by asserting that a petitioner instituting such a challenge does not seek relief from a sentence but rather seeks a reinstatement of probation. Majority op. at ¶ 29. This is a formalistic distinction without a substantive difference.
56. As a practical matter, the sole reason to challenge a probation revocation is to seek relief from the sentence resulting from that revocation. A success-
57. Admittedly, by its nature a probation revocation is a civil proceeding. State v. Horn, 226 Wis. 2d 637, 651, 594 N.W.2d 772 (1999). As a constitutional matter, it is not a stage of a criminal prosecution. See State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 513, 563 N.W.2d 883 (1997) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)). However, the label attached to a revocation of probation is a matter of semantics in the present context and obscures the essence of the interests at stake.
58. Probation revocations implicate a loss of liberty, and thus a probationer is entitled to due process of the law before probation may be revoked. Vanderbeke, 210 Wis. 2d at 513-14. See also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). A probationer‘s personal liberty “includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the [probationer] and often on others.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
59. The United States Supreme Court has recognized that notwithstanding the general line drawn between civil and criminal cases, when a “fundamental interest [is] at stake” the State must provide civil litigants access to its judicial processes without regard to a litigant‘s ability to comply with filing requirements. See M.L.B. v. S.L.J., 519 U.S. 102, 113 (1996) (court
60. Denying a revoked probationer‘s access to the courts for failing to meet a narrow 45-day filing limit would be antithetical to the guarantees of due process. It is doubtful that the legislature intended to foreclose the probationer‘s participation in the judicial process simply because a revocation is by nature a civil proceeding.
61. Indeed, the civil/criminal distinction forged by the majority to support its application of PLRA to probation revocations becomes particularly tenuous when the other exceptions under
62. Both the institutional commitment of persons and the termination of parental rights are by definition civil actions. Yet, the legislature sheltered these civil proceedings from the requirements of PLRA in likely recognition that the requirements may infringe upon the fundamental rights implicated by such proceedings.
63. The majority‘s attempt to support the extension of PLRA to probation revocation challenges, which involve fundamental liberty interests, is therefore not compelling in light of the exemption of similar civil proceedings from the scope of PLRA. To the extent that the majority fears excluding certiorari challenges to probation revocations “would blur irrevocably the
64. PLRA‘s underlying purpose supports the interpretation that its provisions do not govern probation revocаtion challenges. As the majority concedes, the primary intent driving the passage of PLRA centered on deterring frivolous prisoner lawsuits relating to conditions of confinement because these civil lawsuits were considered a waste of time and money. See Majority op. at ¶ 38. Additionally, the legislature intended to conform the Wisconsin PLRA to the federal PLRA provisions. See Background Commentary to 1997 SB 388, Draft #7, p. 2-3, August 9, 1996 (original bill).
65. However, the majority claims that the Wisconsin PLRA expanded beyond the scope of the federal statute and was “not designed exclusively to restrict frivolous lawsuits, but rather to limit broadly prisoner litigation at taxpayers’ expense.” Majority op. at ¶ 40. It is perplexing that the majority apparently considers challenges to restriction of liberty tantamount to frivolous lawsuits that impose a heavy tax burden on the constituents of the state. Without justification, the majority raises fiscal аnd administrative convenience above the core liberty interests at issue in probation revocations.
66. Several federal courts have determined that the federal PLRA does not encompass habeas revocation challenges. See Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998); Blair-Bey v. Quick, 151 F.3d 1036, 1039-40 (D.C. Cir. 1998); McIntosh v. United States Parole Comm‘n, 115 F.3d 809, 811 (10th Cir. 1997).1 Although the state PLRA closely tracks the federal statute, the majority undertakes to distinguish these federal cases by emphasizing the label of the revocation challenge rather than examining the essence of the challenge.
67. The majority dismisses the persuasive authority of the federal cases by maintaining that habeas corpus represents the “usual mechanism for contesting” revocations in federal court, while a writ of certiorari represents the “common route” in Wisconsin. Majority op. at ¶¶ 47-48. The majority offers no cogent explanation as to how these two extraordinary writs differ to any substantive degree when both аre issued to challenge revocations. This effort to create a stark disparity between the two writs is inconsistent with Wisconsin precedent recognizing that revocations may be reviewed via habeas corpus as well as through certiorari. Vanderbeke, 210 Wis. 2d at 522-23.
68. Moreover, the majority‘s reliance earlier in its analysis on the per curiam decision in State ex rel. Marth v. Smith, 224 Wis. 2d 578, 592 N.W.2d 307 (Ct.
69. In reaching the conclusion that PLRA requirements applied to the probationer‘s habeas petition because he was a prisoner within the meaning of the statute, the court of appeals relied primarily upon a federal habeas case that apрlied PLRA‘s provisions to a habeas parole revocation review. See Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997), overruled on other grounds, Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). Newlin represented the minority view that habeas corpus is strictly a civil proceeding, and the case was subject to oft-cited criticism. See Davis, 150 F.3d at 489–90; Blair-Bey, 151 F.3d at 1039. By affirming the validity of Marth, majority op. at ¶ 30, the majority in turn implicitly validates Newlin.
70. It is ironic that the majority dismisses federal habeas case law that contradicts its interpretation of PLRA by asserting the distinction between writs of habeas corpus and writs of certiorari. Yet when, as in Newlin, such federal habeas law supports its statutory interpretation, the majority shelves the distinction between the two writs. To validate a case that relies upon federal habeas law while simultaneously asserting that the federal habeas cases provide no persuasive authority is inconsistent and undercuts the majority‘s legal analysis.2
71. Although certiorari challenges to probation revocations are civil proceedings by definition, they implicate fundamental liberty interests. A prisoner instituting a certiorari action is thus exempted from PLRA‘s filing requirements under the words of the statute and in accordance with its underlying purposes. Because the majority emphasizes formalism over substance to hold otherwise, I dissent.
72. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, joins this dissenting opinion.