COURT OF APPEALS DECISION DATED AND FILED February 7, 2008 David R. Schanker Clerk of Court of Appeals	NOTICE
	This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.

Appeal No.	2007AP1965	Cir. Ct. No. 2007CV37
STATE OF WISCONSIN			IN COURT OF APPEALS
			DISTRICT IV
State of Wisconsin ex rel. James D. Lammers, Petitioner-Appellant, v. Matthew J. Frank and Jeffrey Endicott, Respondents-Respondents.

APPEAL from an order of the circuit court for Waushara County: guy d. dutcher, Judge. Affirmed.

Before Dykman, Lundsten and Bridge, JJ.

¶1 PER CURIAM.   James Lammers appeals a circuit court order that dismissed his petition for habeas corpus review of his competence to defend against prison disciplinary proceedings and of the effect of his mental illness on the conduct underlying the disciplinary actions. Lammers claims the circuit court erroneously concluded that habeas corpus did not lie because certiorari review was an adequate alternate remedy. We need not decide whether habeas corpus is the appropriate mechanism to evaluate an incompetency or mental illness claim in the prison discipline context because, regardless of the answer, the allegations in Lammers’ writ petition were insufficient to warrant the relief sought. We therefore affirm the dismissal of the writ petition on different grounds than those relied on by the circuit court.

BACKGROUND

¶2 According to the petition, Lammers is serving consecutive prison sentences on a 1990 arson conviction and 1996 battery by a prisoner conviction, which would have had a mandatory release date of February 12, 2004. Since 1990, however, he has received a series of 60 conduct reports, largely for behavior such as disobeying orders, disrespect, and disruptive behavior, which have collectively extended his mandatory release date by 1,839 days, to March 1, 2009.

¶3 In 1998, after Lammers had filed more than 175 civil lawsuits against various public officials, the Attorney General moved for the appointment of a guardian ad litem in one of Lammers’ ongoing suits and asked that the guardian ad litem also serve as a gatekeeper for future litigation. The basis for the request was that Lammers suffered from a delusional disorder, persecutory type, which led Lammers to believe that government officials were involved in a conspiracy against him and which rendered him incompetent to represent himself regarding claims encompassed within his delusions. After taking evidence, the court entered an order finding that Lammers was “mentally incompetent to have charge of his affairs, at least to the extent of commencing and prosecuting litigation.” The court appointed a guardian ad litem, but refused to extend its order beyond the case that was then before it. In 2000, however, another court did ban Lammers from initiating any pro se suits until such time that a court certifies that Lammers has regained the mental capacity to evaluate whether his allegations have a well-grounded basis in fact and law. In subsequent proceedings, up to January 2007, various courts have refused to lift the ban, finding no change in Lammers’ competency with regard to the ability to pursue litigation.

¶4 Lammers now alleges that his mental illness and court-found incompetence prevented him from being able to understand any of the disciplinary proceedings against him between 1990 and 2004, or to develop a factual basis for challenging those proceedings. He also claims that the ban on his pro se litigation, in conjunction with his indigency, prevented him from challenging by certiorari any of the disciplinary actions from 2000 onward.

¶5 In addition, Dr. R. Bronson Levin examined Lammers in 2005 and concluded that Lammers’ delusional disorder had directly contributed to the vast majority of the conduct underlying his prison disciplinary decisions. Dr. Levin noted that the conduct reports revolved around Lammers

not understanding the rules, his not accepting the rules, believing that those rules are set up to infringe on his basic constitutional rights, believing that the people that are enforcing those rules are acting illegally, reacting with verbal tirades towards those people, and then not comprehending the system by which he was being punished for that, thinking that that was more evidence that the system was stacked against him. In cases where I actually asked him about those — there are too many conduct reports to have gone through each one, but I asked him about some of those. It is just clear that these fixed delusional beliefs are the basis for not only his actions but for his interpretations of those systems. So it is my conclusion that the majority of the conduct reports are basically just examples of his mental illness and the way he interacts with the system.

Dr. Levin also concluded that the segregation imposed as a result of the conduct reports had made Lammers’ mental illness far worse, pushing him from a paranoid personality disorder into psychosis.

¶6 Lammers petitioned for a writ of habeas corpus, but the circuit court quashed the writ on the grounds that certiorari was an available alternate remedy.

STANDARD OF REVIEW

¶7 Whether a writ of habeas corpus is available to the party seeking relief is a question of law that this court reviews de novo. State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999).

DISCUSSION

¶8 A person whose liberty is being restrained in the absence of a valid judgment or order may apply for a writ of habeas corpus to obtain review of an alleged constitutional or jurisdictional error. See U.S. Const. art. 1, § 9, cl. 2; Wis. Const. art. 1, § 8, cl. 4; Wis. Stat. §§ 782.01(1) and (3) and 782.02; State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, ¶47, 236 Wis. 2d 473, 613 N.W.2d 591. Habeas is an extraordinary remedy, however, which is not available if the petitioner has failed to exhaust an alternate remedy, unless it appears that such action would be insufficient to test the legality of the detention. See Wis. Stat. § 974.06(8); State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 451, 593 N.W.2d 48 (1999).

¶9 Here, Lammers’ liberty is currently being restrained due to the extension of his mandatory release date by a series of prison disciplinary proceedings. He contends those proceedings violated his constitutional due process rights in two ways: first, prison officials “punished [him] for his mental illness” because the conduct on which the reports were based actually stemmed from Lammers’ mental illness and, second, his mental illness “rendered him incapable of rationally defending against the prison conduct reports.” Lammers further contends that certiorari review would be an inadequate mechanism for reviewing his present due process claims because facts outside of the record of the disciplinary proceeding are necessary to establish the alleged constitutional violations.

Adequacy Of Certiorari Review

¶10 The respondents maintain that habeas is unavailable here because certiorari review is the standard procedure for reviewing prison disciplinary decisions, and should have been used here. However, they have not provided any persuasive explanation for how a court would actually be able to evaluate an incompetency claim requiring a hearing on facts outside of the disciplinary proceedings themselves. The respondents’ reliance on State ex rel. L’Minggio v. Gamble, 2003 WI 82, 263 Wis. 2d 55, 667 N.W.2d 1, is misplaced. The administrative mechanism for accepting late affidavits in that case, which allowed some limited review outside the original certiorari record, would not encompass a hearing of the nature Lammers is seeking here.

¶11 Because the respondents have not convinced this court that certiorari would be an adequate mechanism to review a competency issue arising out of a disciplinary proceeding, we will assume for the sake of argument that habeas is an appropriate mechanism. We therefore proceed to consider whether the allegations in Lammers’ petition were sufficient to state a constitutional due process claim warranting habeas relief.

Punishment For Mental Illness

¶12 Lammers makes broad assertions in his writ petition that due process is violated when a person is held responsible for conduct that was the result of mental illness. However, the two Wisconsin cases he cites for that proposition involved an affirmative defense of not guilty by reason of mental disease or defect in a criminal trial. See State v. Seifert, 155 Wis. 2d 53, 69, 454 N.W.2d 346 (1990), and State v. Esser, 16 Wis. 2d 567, 585, 115 N.W.2d 505 (1962). Even assuming some similar type of affirmative defense would be available in the prison disciplinary context, Lammers does not assert anywhere in his writ petition that he ever attempted to defend against the disciplinary charges on the grounds that his failure to obey prison rules was the result of his mental illness. If Lammers did not raise such a defense to any of the conduct reports, prison officials would have had no reason to dismiss the charges on that basis. Lammers does not cite any authority which would allow an inmate to retroactively challenge the imposition of discipline based on a defense theory of mental illness that was not raised at the time of the discipline.

¶13 Lammers also cites federal authority for the proposition that the conditions of punitive incarceration for disciplinary infractions may fall more harshly on mentally ill inmates. See, e.g., Jones’El v. Berge, 164 F. Supp. 2d 1096, 1116-18 (W.D. Wis. 2001). However, Lammers does not assert that he is currently being held in solitary confinement or any other conditions different from those of the general population. He also specifically states in his petition that he is not alleging that he is mentally ill at this time. Therefore, the conditions-of-confinement cases involving mentally ill inmates—which generally request injunctive relief against existing conditions—are not relevant to his current situation based on the allegations in the petition.

¶14 We conclude that Lammers’ petition fails to allege any facts that would warrant relief on the theory that prison officials improperly punished him for behavior that was the product of mental illness.

Competence To Defend Against Disciplinary Proceedings

¶15 Lammers’ allegation that he was not competent to defend against the disciplinary actions appears to raise a procedural due process claim that may be raised retroactively in some circumstances. Lammers points to State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 507, 563 N.W.2d 883 (1997), as an analogous situation in which retroactive habeas corpus proceedings were utilized to evaluate a claim of incompetency that arose during an administrative probation revocation proceeding.

¶16 In Vanderbeke, the Wisconsin Supreme Court held that a probationer has a due process right to a competency determination when reason to doubt the probationer’s competency arises during a probation revocation proceeding. Id. at 506-07, 516-18. The court then went on to fashion a competency procedure to be used in probation revocation proceedings. Id. at 507, 518-22.

¶17 Lammers contends that, if a probationer has a due process right to a competency determination during revocation proceedings, an inmate ought to have a right to some similar sort of competency procedure during disciplinary proceedings. We will assume this is true for the sake of argument. Compare Robinson v. McCaughtry, 177 Wis. 2d 293, 304, 501 N.W.2d 896 (Ct. App. 1993) (noting general rule that inmates are not constitutionally entitled to any procedural due process beyond the requirements set forth in Wolff v. McDonnell, 418 U.S. 539 (1974)), with Vanderbeke, 210 Wis. 2d at 515 (explaining that the right to a hearing is meaningless without the competence to understand or participate in it). What Lammers’ arguments fail to address, however, is: (1) what level of competence is actually required to defend against a prison disciplinary charge; and (2) what information was before the disciplinary committees in each of the challenged administrative proceedings at issue here that should have given the committees reason to doubt that Lammers met that threshold.

¶18 It is a well-established principle that the level of competence required to satisfy due process varies with the purpose for which the competency determination is made. Id. at 516 n.8. For example, different skills may be required to develop written legal arguments for a brief on appeal than are required to represent oneself in a criminal proceeding, which may in turn require a higher degree of competence than assisting an attorney in presenting a defense.

¶19 A prison disciplinary proceeding is far more informal than a criminal trial. There are relaxed evidentiary rules and procedures for presenting evidence. In order to defend against a conduct report, then, an inmate might need only understand what conduct he is alleged to have committed and what prison rule that conduct violated, and the ability to provide and request statements or other evidence relevant to whether he did in fact engage in the alleged conduct. In addition, Wis. Admin. Code § DOC 303.78 requires each correctional institution to make staff members available to serve as advocates in disciplinary hearings.

[T]he advocate’s purpose is to help the accused inmate to understand the charges against the inmate and to help in the preparation and presentation of any defense the inmate has, including gathering evidence and testimony, and preparing the inmate’s own statement. The advocate may speak on behalf of the accused inmate at a disciplinary hearing or may help the inmate prepare to speak.

Wis. Admin. Code § DOC 303.78(2).

¶20 Here, Lammers’ writ petition has essentially rolled all of his prison disciplinary proceedings into one global complaint. However, in order to obtain relief from the multiple extensions of his mandatory release dates, he would need to show that his due process rights were violated in each disciplinary proceeding. His allegations are insufficient to do so.

¶21 First, Lammers does not allege when or how prison officials were made aware of all of his competency evaluations in relation to when each of his disciplinary hearings were held. He is challenging conduct reports that were issued between 1990 and 2004, based on judicial competency determinations that were made beginning in 1998, as well as several prior diagnoses of mental illness. The only psychological evaluation linking Lammers’ mental illness to his disciplinary actions was not issued until 2005. Thus, Lammers’ petition fails to explain what reason prison officials would have had to raise the competency issue during any particular disciplinary action.

¶22 Second, even making an inference that prison officials were aware before some of the disciplinary actions that Lammers had been found incompetent to initiate and conduct pro se litigation, the basis for those judicial determinations was that Lammers’ persecution delusions interfered with his ability to rationally evaluate whether he had valid legal claims. However, the psychological reports underlying those determinations also stated that Lammers was competent with regard to matters outside of his particular delusions. Thus, even if Lammers lacked the ability to rationally evaluate the motivations of prison officials in certain respects, it does not necessarily follow that he could not accurately explain his own conduct. Since Lammers has not specified the actual misconduct underlying any of his disciplinary actions, his allegations are insufficient to show that his particular delusions would have impeded his ability to defend against any particular conduct report.

¶23 Third, although Lammers was found incompetent for the purpose of conducting pro se civil litigation, he was not precluded from proceeding in such actions with the assistance of a guardian ad litem. Lammers has not explained why, if he had sufficient competence to assist counsel in civil litigation, he would not also have had sufficient competence to defend himself in more informal administrative proceedings with the assistance of an inmate advocate.

¶24 We conclude that the writ petition was properly quashed because the allegations were insufficient to state a claim for relief.

By the Court.—Order affirmed.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).