STATE Of Wisconsin EX REL. Brook GRZELAK, Petitioner-Appellant-Petitioner, v. Daniel BERTRAND, Warden, Respondent-Respondent.
No. 02-0678
Supreme Court of Wisconsin
July 9, 2003
2003 WI 102 | 665 N.W.2d 244
Oral argument May 28, 2003.
For the respondent-respondent the cause was argued by John J. Glinski, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1. JON P. WILCOX, J. This case is before the court on a petition for review filed by petitioner-appellant Brook Grzelak. Grzelak seeks review of an unpublished opinion of the court of appeals, State ex rel. Grzelak v. Bertrand, No. 02-0678, unpublished order (Wis. Ct. App. Aug. 27, 2002), summarily affirming a judgment by the Brown County Circuit Court, Mark A. Warpinski, Judge, which denied certiorari relief from
I. BACKGROUND
¶ 2. The facts of this dispute are relatively straightforward and undisputed. While Grzelak was an inmate at Green Bay Correctional Institute, he was disciplined pursuant to five conduct reports filed between January 28, 2000 and March 6, 2000. On June 30, 2000, Grzelak, acting pro se, filed a petition with the Brown County Circuit Court, seeking a writ of certiorari to obtain relief from the prison discipline.
¶ 3. On November 2, 2000, the circuit court refused to issue a writ of certiorari for two of the five reports. The circuit court found that Grzelak had failed to exhaust his administrative remedies with respect to one of the reports and had thus abandoned any challenge to it. The court also found that Grzelak‘s substantive challenge to another report had no merit. The circuit court then issued a writ of certiorari for the remaining three reports. The subject of this appeal is Grzelak‘s petition pertaining to these three remaining reports. With respect to these three reports, Grzelak alleged procedural errors, including lack of notice, inability to compel attendance of witnesses, and untimely or inadequate service of complaints. There is no
¶ 4. On February 28, 2002, the circuit court dismissed the writ of certiorari, concluding that it did not have proper jurisdiction because Grzelak named Warden Daniel Bertrand (the warden) as the respondent, rather than the Secretary of the Department of Corrections (the secretary). The circuit court reasoned that because each of the reports culminated in the secretary determining that the discipline should stand and because on certiorari a petitioner is entitled to a review of a final agency determination, what Grzelak was seeking was a review of the secretary‘s decision. Relying on State ex rel. Kulike v. Town Clerk, 132 Wis. 103, 105, 111 N.W. 1129 (1907), the court concluded that it lacked jurisdiction because Grzelak‘s writ was misdirected, as the secretary should have been named as the respondent instead of the warden.
¶ 5. Grzelak then appealed the denial of certiorari relief to the court of appeals. The court of appeals summarily affirmed the circuit court‘s judgment relating to all five reports. Grzelak has not further appealed the court of appeals’ determinations that the substantive challenge to one report lacked merit and that he had failed to exhaust his administrative remedies with respect to the other. The court of appeals agreed with the circuit court that Grzelak‘s failure to name the secretary as the respondent in his petition deprived the court of jurisdiction, as it pertained to the three reports
II. ISSUE
¶ 6. The issue presented to this court is whether a court has jurisdiction to hear a petition for a writ of certiorari seeking review of procedural issues relating to prison discipline when the petitioner mistakenly names the warden of the correctional institution as the respondent in the petition instead of the Secretary of the Department of Corrections. We reverse the decision of the court of appeals for the following reasons. First, we find the statutes and case law regarding the proper party to serve at the time Grzelak filed his petition to be ambiguous. Second, we find that Grzelak‘s naming of the warden was reasonable under the facts and circumstances of this case, such that the circuit court had jurisdiction to hear the merits of his petition.
III. STANDARD OF REVIEW
¶ 7. We are asked to review the court of appeals’ determination that Grzelak‘s naming of the warden in his petition was insufficient to confer jurisdiction upon
IV. ANALYSIS
¶ 8. In order to determine the proper party to be named as respondent in this petition for writ of certiorari, it will be helpful to review the administrative code provisions, statutes, and case law that Grzelak was required to follow to appeal the disciplinary action taken pursuant to the conduct reports. Prisoner conduct reports are created pursuant to
¶ 9. At the time petitioner Grzelak filed his petition, in June of 2000,
¶ 10.
¶ 11. Notably, unlike every other step in the review process, there are no code provisions that outline the procedures an inmate must follow to seek certiorari review of the secretary‘s decision (for procedural issues) or the warden‘s decision (for substantive issues). Only two statutory provisions provide any guidance to an inmate as to how the certiorari process operates. Wisconsin‘s Prisoner Litigation Reform Act,
¶ 12. Because there is no administrative or statutory direction as to whom to name in a certiorari petition, an inmate must refer to Wisconsin common law. Wisconsin case law provides that certiorari is available only for the purpose of reviewing a final determination. State ex rel. Czapiewski v. Milwaukee City Serv. Comm‘n, 54 Wis. 2d 535, 539, 196 N.W.2d 742 (1972) (citing State ex rel. McKenzie v. Brown, 174 Wis. 498, 182 N.W. 602 (1921); State ex rel. Meissner v. O‘Brien, 208 Wis. 502, 243 N.W. 314 (1932); State ex rel. St. Mary‘s Hosp. v. Indus. Comm‘n, 250 Wis. 516, 27 N.W.2d 478 (1947)). Thus, to perfect jurisdiction, “the
¶ 13. As noted earlier,
¶ 14. To find an answer, we must refer back to the relevant administrative code provisions. Under the ICRS procedures listed in
¶ 15. Having determined that the secretary was the proper party to be named as respondent in Grzelak‘s certiorari petition as it related to procedural issues, we must now determine whether his failure to name the secretary defeats jurisdiction. In Kulike, 132 Wis. 103, the petitioner, seeking review of an action of the town supervisors of Lebanon, directed a writ of certiorari to the town clerk instead of the supervisors because the clerk had legal custody and control of the records. The court ruled:
Except where specially provided by statute or in particular cases of necessity, as where the board or body whose acts are sought to be reviewed is not continuing or has ceased to exist, the writ of certiorari cannot properly run to a mere ministerial officer simply because he is the custodian of the records, but must go to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or of the persons composing such board or body.
Id. at 105. The court concluded that the writ must be “directed to the person who, in legal contemplation, has the custody of the record... [,]” not a mere subordinate officer, who, although having actual possession of the record, is merely the agent of the decision-making body. Id. at 105-106.
¶ 16. The warden urges us to apply Kulike, noting that none of the exceptions to the rule in Kulike apply,
¶ 17. Grzelak first argues that Kulike is not applicable to this case. Noting that a prisoner must often follow a “serpentine... labyrinth of administrative rules, statutes and case law to appeal a finding of guilt for violating a prison rule[,]” (Pet‘r Br. at 6), Grzelak refers us to our policy of liberally judging the sufficiency of pleadings by pro se inmates to reach the merits of their case, citing State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 279, 392 N.W.2d 453 (Ct. App. 1986). Grzelak avers that because the liberal pleading standards did not apply in Kulike, that case should not apply here. (Pet‘r Br. at 8.) He further suggested at oral argument that we adopt a specific rule whereby Kulike would not apply to petitions from pro se inmates—who do not have the resources of private litigants—such that service on either the warden or secretary would be deemed sufficient to perfect jurisdiction in a petition for certiorari. While we are sympathetic to the plight of pro se litigants and note that there is some merit to the characterization of Grzelak‘s appellate process as a “serpentine labyrinth” in this case, we decline to carve out a special exception to the rule in Kulike for pro se inmates.
¶ 18. Next, Grzelak argues that Kulike is distinguishable because the warden is not a mere ministerial subordinate to the proper respondent because, unlike the town clerk in Kulike, the warden played an integral role in reviewing the conduct reports and is the final authority with respect to non-procedural matters. (Pet‘r
¶ 19. Grzelak‘s third argument with respect to Kulike is that it does not apply to this case because a further applicable exception to its rule exists in our case law. Grzelak directs us to a series of cases holding that when a combination of statutes, administrative rules, and case law are ambiguous as to proper certiorari procedure, the petitioner should have his complaint heard on the merits if the law can reasonably be construed to support the petitioner‘s interpretation (Pet‘r Br. at 9-12, 14) (citing Weber v. Dodge County Planning and Dev. Dep‘t, 231 Wis. 2d 222, 604 N.W.2d 297 (Ct. App. 1999); DOT v. Peterson, 218 Wis. 2d 473, 581 N.W.2d 539 (Ct. App. 1998), aff‘d by DOT v. Peterson, 226 Wis. 2d 623, 594 N.W.2d 765 (1999) (hereinafter Peterson II); McDonough v. DWD, 227 Wis. 2d 271, 595 N.W.2d 686 (1999)).
¶ 20. The exception Grzelak refers to emanates from our decision in Kyncl v. Kenosha County, 37 Wis. 2d 547, 155 N.W.2d 583 (1968), where, in the context of an appeal from a condemnation award pursuant to
In the absence of a specific direction in the statute as to who is to be designated the condemnor [sic] for service of notice to contest the award, an ambiguity exists. Procedural statutes are to be liberally construed so as to permit a determination upon the merits of the controversy if such construction is possible.
¶ 21. The issue in Kyncl was whether the circuit court had jurisdiction to hear respondent‘s appeal from a condemnation award when the Kenosha County Highway Committee condemned plaintiff‘s land and Kenosha County took title to the land. Id. at 549-50. Pursuant to
Serving the notice of appeal upon the subdivision of the state... that was designated as the new owner when the statute does not specify which municipality, commission or committee should be served as condemnor [sic] does not seem illogical. Nor does it seem at all probable that notice to the county would not be notice to the county highway committee or the state highway commission.
¶ 22. In Peterson, 218 Wis. 2d 473, another condemnation appeal, the court of appeals found that service on the Attorney General rather than the Department of Transportation (the actual condemner) was sufficient under
¶ 23. In Peterson II, this court affirmed the court of appeals’ decision, stating: “We have long adhered to the rule that ‘strict compliance with procedural statutes is necessary to obtain jurisdiction to review administrative agency decisions.’ However ‘the statutes must clearly set forth the procedural requirements’ necessary to pursue such review.” Peterson II, 226 Wis. 2d at 633 (quoting Trojan v. Bd. of Regents, 104 Wis. 2d 277, 283-84, 311 N.W.2d 586 (1981)). Further, we noted that “where a procedural statute lacks ‘specific direction’ clearly indicating who is to be served with notice, ‘an ambiguity exists[, such that the statute must be] liberally construed so as to permit a determination upon the merits of the controversy if such construction is possible.‘” Id. (quoting Kyncl, 37 Wis. 2d at 555-56).
¶ 24. We went on to instruct agencies that “[i]t is a better practice to have the notification of an agency‘s decision accompanied by an explanation of the procedures that must be followed in order to appeal that decision.” Id. at 634. Further, we stated:
We acknowledge... that it is important that citizens not be defeated in their redress of grievances by the maze of governmental entities. A person aggrieved by an administrative decision should not have to guess
which governmental entity to name and serve as the respondent in proceedings for judicial review.
Id. at 635 (quoting Sunnyview Village, Inc. v. DOA, 104 Wis. 2d 396, 412, 311 N.W.2d 632 (1981)).
¶ 25. This “statutory ambiguity” rule was expanded in Weber, 231 Wis. 2d 222. In Weber, the plaintiffs petitioned for a writ of certiorari to review an action of the Dodge County Planning and Development Committee, but named the county‘s Planning and Development Department, rather than the Committee, in their petition. Id. at 223. As in the case before us, the circuit court found that it lacked subject matter jurisdiction because the writ was misdirected. Id. The issue before the court of appeals was “whether service on the Department may be considered compliance with Kulike under the applicable law and the facts of [the] case.” Id. at 225. The court of appeals, relying on the language in Kyncl, Peterson, and Peterson II, held:
We think the same rule should apply where an ambiguity in service requirements is created through the interaction of the applicable statutes, case law and the specific circumstances of the case—as here, with the pervasive use of the Department‘s personnel and stationery in the conduct of the Committee‘s business vis-à-vis Weber‘s petition, and the absence of any ascertainable independent identity on the part of the Committee.... In these circumstances, we think Weber could reasonably believe that his appeal of the decision was properly prosecuted against the Department, whether on its own behalf or as the Committee‘s agent.
Id. at 227-28 (emphasis added). Properly understood, this line of cases stands for the proposition that when the applicable law relating to proper certiorari proce-
¶ 26. The warden contended at oral argument that these cases are inapposite because they all dealt with statutory certiorari, not common law certiorari as is at issue here. First, we note that Weber specifically involved the application of the Kulike rule. Second, we find the language in Weber referring to the “interaction of the applicable statutes, case law and the specific circumstances of the case” particularly germane to our decision in the case at hand. Weber, 231 Wis. 2d at 227-28.
¶ 27. After exhausting administrative remedies, either by appealing substantive issues to the warden or procedural issues to the secretary, the inmate simply receives a decision. This decision lacks any notice to the inmate of how to proceed if he then wishes to appeal this decision to a court. In order to determine whom to name as respondent in his certiorari petition, Grzelak had to first look to case law to determine that “the writ of certiorari... must go to the board or body whose acts are sought to be reviewed[,]” Kulike, 132 Wis. at 105, and that certiorari is available only to appeal a final determination by an agency. Czapiewski, 54 Wis. 2d at 539. Next, Grzelak had to refer to
¶ 28. Contrary to the warden‘s assertions, Smith itself does not provide a clear answer to the question of whom to serve in this circumstance. Smith merely explained that “[t]he superintendent‘s decision is not final if the inmate can seek further review through the ICRS. [P]rocedural errors are within the scope of the ICRS, and as to those type of errors the warden‘s decision is no longer final.” Id. at 74. The implication here is that the secretary‘s decision is final with regard to procedural matters, as the secretary is the last step in the ICRS process. However, Smith does not specifically provide that the secretary‘s decision is final, nor does
¶ 29. We find the procedural rules governing proper service in this case to be ambiguous for the following reasons: (1) the lack of a clear statement in any previous decision, statute, or administrative regulation providing that when raising procedural issues, in order to properly file a petition for writ of certiorari an inmate must name the Secretary of the Department of Corrections as the respondent; (2) the labyrinth of administrative regulations and case law regarding who is the proper party to serve; and (3) the fact that Grzelak was initially pursuing both procedural and
¶ 30. As previously noted, Grzelak was initially appealing both procedural and substantive issues relating to the conduct reports. With respect to the alleged non-procedural or substantive errors, the warden‘s decision is final, and ICRS review is not required to exhaust administrative remedies. Thus, regarding his substantive claims, naming the warden was necessary. However, even with respect to the procedural issues, the ICRS process is merely a review of the record of the institutional hearing procedures under
¶ 31. Given these circumstances and the aforementioned legal complexities of determining whom to serve, we find that it was reasonable for Grzelak to serve the warden in relation to his procedural claims. Thus, we hold that under the facts and circumstances of this case and applicable law, as it existed at the time Grzelak filed his petition, Grzelak‘s naming of the warden was sufficient, with respect to the procedural issues in the three conduct reports, for the circuit court to acquire jurisdiction to hear his petition for certiorari on the merits. We note that this holding is limited to the facts of this case. We do not determine whether we would reach a similar conclusion if an inmate filed his petition after
¶ 32. Finally, as we stated in Peterson II, 226 Wis. 2d at 634, we believe “[i]t is a better practice to have the notification of an agency‘s decision accompanied by an explanation of the procedures that must be followed in order to appeal that decision.” Once an inmate has exhausted his administrative remedies, having followed the extensive and detailed administrative review proce-
By the Court.—The decision of the court of appeals is reversed.
¶ 33. N. PATRICK CROOKS, J. (dissenting). For the reasons set forth below, I respectfully dissent.
¶ 34. The majority opinion fails to follow the clear dictates of State ex rel. Kulike v. Town Clerk, 132 Wis. 103, 111 N.W. 1129 (1907), in this case. Given Kulike‘s specific instructions, I find that Kulike provides sufficient guidance regarding the appropriate party to be served in a common law writ of certiorari action, such as is the case here. The Kulike court held:
Except where specifically provided by statute or in particular cases of necessity, as where the board or body whose acts are sought to be reviewed is not continuing or has ceased to exist, the writ of certiorari cannot properly run to a mere ministerial officer simply because he is the custodian of the records, but must go to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or of the persons composing such board or body.
Id. at 105. According to Kulike, the person served with the writ of certiorari must be the person “whose acts are
¶ 35. Further, State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 586 N.W.2d 63 (Ct. App. 1998) (abrogated in part as to futility exception to exhaustion requirement by State ex rel. Hensley v. Endicott, 2001 WI 105, ¶ 13, 245 Wis. 2d 607, 621, 629 N.W.2d 686), clarifies the law as to the party to whom service is appropriately directed in disciplinary cases involving claims of procedural error. Smith states that the warden‘s or superintendent‘s “decision is not final if the inmate can seek further review through the ICRS.” Id. at 74. Smith further explains that:
[T]he number and specificity of the changes in the current version of WIS. ADM. CODE ch. DOC 310 leave no ambiguity about the Department‘s intent. The intent is that procedural errors are within the scope of the ICRS, and as to those types of errors the warden‘s decision is no longer final.
Id. The majority indicates that Smith does not provide sufficient guidance regarding whom to serve, and, therefore, ambiguity exists. See majority op., ¶¶ 28 and 29. I disagree that Smith, Kulike, and the administrative code sections are ambiguous. Based on the holding in Smith, Grzelak was required to serve the secretary of the Department of Corrections. It is not unreasonable to expect Grzelak to comply with these procedural rules. Because Grzelak incorrectly served the warden, Daniel Bertrand, instead of serving the secretary of the Department of Corrections, the circuit court lacked personal jurisdiction over the secretary and, therefore, the circuit court could not review the issues presented.
¶ 37. Earlier this term this court had the occasion to resolve another personal jurisdiction issue. In Hagen, 2003 WI 56, 262 Wis. 2d 113, 663 N.W.2d 268, this court refused to find personal jurisdiction when the plaintiff served the summons and complaint on a nonparty located in the same building as the defendant, but not on the defendant. This occurred allegedly at the direction of a person in the defendant‘s office. Id., ¶ 25. In Hagen, the plaintiff‘s process server went to the Milwaukee Employes’ Retirement System/Annuity and Pension Board (MERS) office, but was told that process should be served at the city clerk‘s office. Id., ¶ 8. As a result, the process server went to the clerk‘s office, and a clerk‘s office employee accepted service. Id. MERS asserted that the court lacked personal jurisdiction over it as a result of the process server‘s failure to achieve service on it. Id., ¶ 6. This court agreed and we affirmed the court of appeals, and held that the circuit court lacked personal jurisdiction over MERS due to the improper service of process. Id., ¶ 26.
¶ 38. In Hagen, this court correctly decided that mistake was not an excuse, warranting the extension of
¶ 39. I agree with the court of appeals’ analysis of this case. The court of appeals stated:
Grzelak‘s procedural challenges include lack of notice, inability to compel the attendance of witnesses and untimely or inadequate service of complaints on him. He named the prison warden, Daniel Bertrand, the respondent in this certiorari action. The secretary of the Department of Corrections, not the warden, is the final administrative authority on procedural matters. See State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 74, 586 N.W.2d 63 (Ct. App. 1998). Because Grzelak seeks review of the secretary‘s decision, his failure to direct the writ to the secretary deprives the court of subject matter and personal jurisdiction to review those issues. See State ex rel. Kulike v. Town Clerk, 132 Wis. 103, 105, 111 N.W. 1129 (1907).
State ex rel. Grzelak v. Bertrand, No. 02-0678, unpublished order (Wis. Ct. App. Aug. 27, 2002). Because I find that Kulike, Smith, and Hagen are applicable to this case, we should not find personal jurisdiction where none exists.
¶ 40. For the reasons discussed, I respectfully dissent.