No.
95-0079
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
LYDIA SANTIAGO, AS PERSONAL REPRESENTATIVE
OF
THE ESTATE OF JAIME SANTIAGO,
Plaintiff-Respondent,
v. ERRATA
SHEET
KATHLEEN WARE, WAYNE MIXDORF, TODD ZANGL
AND DENNIS DANNER,
Defendants-Appellants.
|
Marilyn L. Graves Clerk of Court of
Appeals 231 East, State
Capitol Madison, WI 53702 |
Peg Carlson Chief Staff
Attorney 119 Martin Luther
King Blvd. Madison, WI 53703 |
|
Court of Appeals
District I 633 W. Wisconsin
Ave., #1400 Milwaukee, WI 53203-1918 |
Court of Appeals
District II 2727 N. Grandview
Blvd. Waukesha, WI 53188-1672 |
|
Court of Appeals
District III 740 Third Street Wausau, WI 54403-5784 |
Court of Appeals
District IV 119 Martin Luther
King Blvd. Madison, WI 53703 |
|
Jennifer Krapf Administrative
Assistant 119 Martin Luther
King Blvd. Madison, WI 53703 |
Hon. Moria Krueger Dane County
Courthouse 210 Martin Luther
King, Jr. Blvd. Madison, WI 53709 |
|
Judith Coleman
Nispel Trial Court Clerk Dane County
Courthouse 210 Martin Luther
King,Jr.Blvd. Madison, WI 53709 |
Lawrence Bensky Melanie Cohen La Follette Sinykin P.O. Box 2719 Madison, WI
53701-2719 |
|
Stephen J. Nicks Assistant Attorney
General P.O. Box 7857 Madison, WI 53707 |
|
PLEASE
TAKE NOTICE that the attached pages 37 through 41 are to be substituted for
pages 37 through 41 in the above-captioned opinion which was released on
September 30, 1996.
Dated this 13th day of December, 2006.
Santiago received a ten-day extension of his mandatory release date and
a referral to the program review committee which resulted in termination of CRC
status. Santiago failed to seek
judicial relief by way of certiorari.
Instead, he proceeded directly to the § 1983 and negligence action
before us.
The Irby
court held that certiorari review provided an adequate remedy for Irby's loss
of earned good time because the circuit court can order restoration of any lost
good time and can expunge the prisoner's disciplinary record. Id. at 847, 522 N.W.2d at
15. We see no reason why certiorari
would not be equally available to remedy the wrongful ten-day extension of
Santiago's mandatory release date. As
in Irby, expungement could be ordered by a certiorari court.[1]
IV.
STATE
CLAIMS
Public
employees are immune from personal liability for injuries resulting from the
negligent performance of a discretionary act within the scope of the
individual's public office. C.L.
v. Olson, 143 Wis.2d 701, 710, 422 N.W.2d 614, 617 (1988). A discretionary act is one that involves
choice or judgment. Kimps v. Hill,
200 Wis.2d 1, 23-24, 546 N.W.2d 151, 161 (1996) (quoting United States v.
Gaubert, 499 U.S. 315, 325 (1991)).
An
exception to immunity exists for ministerial acts. Kimps v. Hill, 187 Wis.2d 508, 513, 523 N.W.2d 281,
284 (Ct. App. 1994), aff'd, 200 Wis.2d 1, 546 N.W.2d 151 (1996). A public employee's duty is ministerial
"only when it is absolute, certain and imperative, involving merely the
performance of a specific task when the law imposes, prescribes and defines the
time, mode and occasion for its performance with such certainty that nothing
remains for judgment or discretion."
Lister v. Board of Regents, 72 Wis.2d 282, 301, 240 N.W.2d
610, 622 (1976). Whether a duty is
ministerial is a question of law which we review without deference to the trial
court. Larsen v. Wisconsin Power
& Light Co., 120 Wis.2d 508, 516, 355 N.W.2d 557, 562 (Ct. App.
1984). The state does not challenge the
court's findings that the defendants negligently performed their duties.
We turn
first to Ware's claimed immunity.[2] Santiago acknowledges that a decision to classify
an offense as major or minor involves choice "in some cases," and is
therefore discretionary. He argues,
however, that Ware had a ministerial duty to look first at the list of offenses
automatically classified as major under Wis.
Adm. Code § DOC 303.68(3) to see if it included the offenses
charged against him. Citing Lister
v. Board of Regents, Santiago contends the automatic major provision
limits choice and imposes a duty with such certainty that nothing remains for
judgment or discretion.
In Lister,
University of Wisconsin law students sued a university official, alleging he
had negligently performed a ministerial duty of determining their residency
status. Lister, 72 Wis.2d
at 288-89, 240 N.W.2d at 616. The court
reviewed the official's duties under the relevant statutes.
Section
36.16(1)(a) provided that "a bona fide resident of the state for one year
next preceding the beginning of any semester for which such student registers
at the university ... shall while he continues a resident of the state be
entitled to exemption from nonresident tuition." Under sec. 36.16(3), in determining bona fide residence, several
activities of the student "shall be considered." However, a student from another state who
was in this state "principally to obtain an education" was not to be
considered to have established a residence in Wisconsin by virtue of attendance
at educational institutions.
Id. at 301, 240 N.W.2d at 622. The
court held, "The statute did not prescribe the classification process
with such certainty that nothing remained for the administrative officer's
judgment and discretion." Id.
(emphasis added).
Like the
official in Lister, Ware engaged in a classification
process. Ware exercised judgment in
selecting and applying the relevant provisions of the administrative code to
the facts presented. We reject
Santiago's portrayal of the automatic classification as a threshold ministerial
decision required for the later exercise of choice or judgment to determine if
a non-automatic offense is major or minor.
The classification determination is itself the result of choice
and judgment, not a prerequisite.
The
administrative code establishes a process for the classifying prison offenses
as major or minor. Ware first had to
review the appropriateness of the charges.
Wis. Adm. Code § DOC
303.67(3). For a minor offense, she
could have dismissed the conduct report if the inmate was either unfamiliar
with the rule, had not violated recently the same or a closely related rule,
was unlikely to repeat the offense if warned or counseled, or the purposes of
the prison disciplinary code would not be furthered by writing a conduct
report. Wis. Adm. Code §§ 303.67(3)(a) and 303.65. Ware had to strike offenses not supported by
the facts alleged, or could add offenses supported by the facts. Wis.
Adm. Code §§ 303.67(3)(b)-(c).
She could refer the conduct report for further investigation. Wis.
Adm. Code § DOC 303.67(3)(e).
After completing this review, involving judgment and choice, Ware then
was required to "divide all remaining conduct reports into major and minor
offenses." Wis. Adm. Code § DOC 303.67(4).
That Ware
may have been required to exercise her judgment, or that she may have done so
wrongly, does not transform her exercise of judgment into a ministerial
act. See Lister,
72 Wis.2d at 302, 240 N.W.2d at 622.
Ware's exercise of judgment was an act of discretion.
Santiago
argues that both Zangl and Danner had a non-discretionary duty to look at the
waiver form to see if there had been a proper waiver.[3] An evaluation of Santiago's waiver form
required analysis and judgment. The box
indicating Santiago waived his right to a formal due process hearing had been
checked, then crossed out. Interpreting
the resulting composite mark required judgment. Moreover, as Santiago states in his recitation of facts,
"[Zangl] did not ask Santiago about the incomplete waiver form, or whether
he intended to waive his right to a formal due process hearing. There is no rule or regulation requiring
hearing officers to verify that an inmate has waived his due process rights
before holding a waiver hearing."
Thus, it can hardly be said that the law imposed a duty upon Zangl that
was "absolute, certain and imperative."
As to
Danner, we again reject Santiago's attempt to isolate the evaluation of his
waiver form from Danner's responsibilities as appeal officer. Wisconsin
Adm. Code § DOC 303.76(7)(b) requires appeal officers to
"review all records and forms pertaining to the appeal and make his or her
decision within 10 days following receipt of the request." A review of the entire record on appeal
involves judgment. As with Ware, that
Danner may have been required to exercise judgment or that he did so wrongly
does not transform his duties from discretionary to ministerial.
[1] Having disposed of the issues on other grounds, we do not decide whether the rehearing held in February 1993 before Danner was a complete cure for any constitutional deprivation that occurred during the first hearing.
[2] Prior to trial, the court granted Ware summary judgment on Santiago's negligence claim on the ground that she had discretionary immunity. In its statement of the case, the State says this decision was reconsidered. We have been unable to locate such a reconsideration. Nonetheless, we deem Ware to have waived the summary judgment decision in her favor.