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COURT OF APPEALS DECISION DATED AND RELEASED November 16, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0700
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN EX
REL. CHARLES L. TYLER,
Petitioner-Appellant,
v.
GARY MCCAUGHTRY,
JANE DIER-ZIMMEL,
LAURIE BONIS,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Dodge County:
JOHN R. STORCK, Judge. Affirmed.
Before Eich, C.J.,
Sundby and Vergeront, JJ.
VERGERONT, J. Charles L. Tyler is an inmate confined to
the custody of the Wisconsin Department of Corrections. He appeals from an order affirming a
decision by the Waupun Correctional Institution Program Review Committee (PRC)
to deny him eligibility for the intensive sanctions program (DIS) and
dismissing his writ of certiorari. We
affirm.
Tyler is serving a
twenty-one year sentence for a robbery conviction. At all times relevant to this action, he was classified as
maximum security. On July 29,
1993, Tyler appeared before the PRC for review of his security classification
and program assignment. In his social
worker's summary and appraisal of Tyler's program review request, the social
worker stated:
Regular
recall. Mr. Tyler will appear. He wishes to discuss DIS with the
committee. He was advised that he is
not eligible due to the assaultiveness of his offense. Social worker recommends retain max WCI
based on sentence structure.
In its decision, the PRC
stated:
DIS rescreened 7/13/93: Not eligible, assaultive crime.
Mr. Tyler is being seen at his scheduled
recall and the recommendation is for retention in maximum custody at WCI. Mr. Tyler advised the committee that he is
interested in assignment to DIS. He was
advised that he does not appear eligible based upon the nature of his
offense. Mr. Tyler stated to the
committee that he had contacted DIS and received the response and he felt that
his offense was not an issue. The
committee advised Mr. Tyler that if he disagrees with the committee's
assessment of his eligibility for DIS that he can appeal directly to the
Division of Intensive Sanctions.
The committee notes that Mr. Tyler has
involved himself in recommended programming and that he is low in all areas of
the Risk Rating instrument except for sentence structure. It is further noted that he does not reduce
in sentence structure until 3/98.
Based
upon the social worker's comments, A&E recommendations, nature and severity
of offense and sentence structure, the committee is unanimous in recommending
retention in MAX/WCI.
Tyler sought review of
the PRC's decision by filing a petition for a writ of certiorari. In his petition, Tyler made two
arguments. First, Tyler alleged that
the PRC's decision was arbitrary and capricious because it was based on the
assaultive nature of his offense, a factor which Tyler contends is no longer to
be considered by the PRC in determining eligibility for DIS. He alleged that he informed the PRC at the
hearing that he believed the PRC was relying on outdated department of corrections
rules and that the current rules no longer contain a provision that inmates
with assaultive offenses are not eligible for DIS. According to the petition, the PRC responded that it was not
aware that the rule denying eligibility for DIS to inmates with assaultive
offenses was no longer in effect and that he should contact his social worker
for a referral.[1]
Second, Tyler alleged
that his social worker, relying on a memorandum from Mickey Richards, deputy
administrator of the division of intensive sanctions, improperly refused to
give him a referral required for eligibility for DIS under Wis. Adm. Code § DOC 333.04(1)(d).[2] According to Tyler, the memorandum provides
that inmates with assaultive offenses are not eligible for DIS and that social
workers should not prepare case plans for inmates with assaultive offenses.
The trial court issued
the writ and the respondents filed a return of the record concerning Tyler's
denial of eligibility for DIS.[3] The trial court then affirmed the PRC's
decision and dismissed the writ of certiorari.
On certiorari, we are
limited to determining: (1) whether the
agency kept within its jurisdiction; (2) whether it acted according to law; (3)
whether its action was arbitrary, oppressive or unreasonable; and (4) whether
the evidence presented was such that the agency might reasonably make the
determination it did. Van Ermen
v. DHSS, 84 Wis.2d 57, 63, 267 N.W.2d 17, 20 (1978). The test on certiorari is whether reasonable
minds could arrive at the same conclusion reached by the agency. State ex rel. Palleon v. Musolf,
120 Wis.2d 545, 549, 356 N.W.2d 487, 489 (1984).
DISCUSSION
Tyler
contends on appeal that the PRC's decision denying him eligibility for DIS was
arbitrary and capricious because it was based on the assaultive nature of his
offense. In Tyler's view, the
assaultive nature of an offense is no longer a factor to be considered in
determining eligibility for DIS. We
disagree.
Section 301.048, Stats., governs eligibility for
DIS. It provides in pertinent part that
an inmate is eligible for the program if he or she is serving a felony sentence
and the department of corrections directs him or her to participate.
In accordance with
§ 301.048(10), Stats.,[4]
the department has promulgated rules regarding eligibility for the
program. Wisconsin Administrative Code § DOC 333.04(1)(d)
provides that a person is eligible for a minimum security DIS classification if
transferred to DIS by the division of adult institutions in accordance with
§ 301.048(2)(b), Stats., and
Wis. Adm. Code § DOC 302.20,
provided the inmate has a case plan.
The case plan must include an intended residence, either a school or job
placement or an acceptable alternative, and a proposal for meeting treatment
goals in the community. Id.
Wisconsin
Administrative Code § DOC 302.20, to which Wis. Adm. Code § DOC 333.04(1)(d) refers, states that a
transfer of an inmate from one institution to another[5]
requires the approval of the classification chief, upon recommendation of the
PRC at which the inmate is residing. In
evaluating a transfer, the criteria listed in Wis.
Adm. Code §§ DOC 302.14, 302.145 and 302.16 may be considered.
The criteria set out in Wis. Adm. Code § DOC 302.14
include an evaluation of the nature of the offense and its seriousness,
including the physical danger posed to another by the offense, the harm done in
the commission of the offense, and whether the inmate exhibited physical
aggressiveness that exposed another to harm.
See Wis. Adm. Code
§ DOC 302.14(1)(a)-(d).[6]
A plain reading of Wis. Adm. Code § DOC 302.14
indicates that the assaultive nature of the inmate's offense is a factor the
PRC can rely on in denying eligibility for DIS. In light of the fact that a DIS placement is a minimum security
placement and that an inmate eligible for DIS will be released into the
community early, the emphasis placed by the PRC on the assaultive nature of the
offense was not unreasonable.
Tyler also contends that
his social worker, relying on a memorandum from the deputy administrator of the
division of intensive sanctions, erroneously refused to prepare a case plan
which is required for eligibility for DIS.
According to Tyler, this memorandum states that inmates with assaultive
offenses are not eligible for DIS and instructs social workers not to make case
plans for inmates with assaultive offenses, thereby depriving the PRC the
opportunity to transfer the inmate to DIS.
Tyler also contends that because this memorandum established factors to
be considered in making DIS eligibility determinations, it should have been
adopted pursuant to formal rulemaking procedures under ch. 227, Stats.
We reject this argument
for two reasons. First, as already
indicated, the memorandum Tyler refers to is not in the return. A reviewing court may not consider matters
outside the return to the writ of certiorari.
State ex rel. Conn v. Board of Trustees, 44 Wis.2d 479,
482, 171 N.W.2d 418, 420 (1969).[7] Second, and more significantly, the alleged
failure of his social worker to prepare a case plan occurred after the
PRC's decision. Certiorari lies only to
review a final agency determination. State
ex rel. Czapiewski v. Milwaukee City Serv. Comm'n, 54 Wis.2d 535, 539,
196 N.W.2d 742, 744 (1972). The only
final agency decision Tyler seeks to challenge is the PRC's decision on July
29, 1993, to deny him eligibility for DIS.
Events which occurred following the PRC's decision are beyond the scope
of our review.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.
No. 95-0700(D)
SUNDBY,
J. (dissenting). Inmate Charles L.
Tyler appeals from an order entered January 31, 1995, dismissing his writ of certiorari. He sought review of a decision of the Waupun
Program Review Committee (PRC) concluding that he is ineligible for assignment
to the Division of Intensive Sanctions (DIS) because of the "assaultive
nature of his offense." The
respondents, Warden Gary McCaughtry and two members of the PRC, present the
following issue for review:
Did [respondents] act in accordance with law
when they denied [Tyler] eligibility to participate in the DIS program based
on the assaultive nature of his offense?
(Emphasis
added.) Respondents could have
presented the usual certiorari issues:
Whether the PRC acted contrary to law or arbitrarily and capriciously
when it refused to transfer Tyler to MS/DIS (Minimum Security/Division of
Intensive Sanctions) based on the statutory and administrative criteria. Apparently, however, respondents wish to
have resolved the question whether an inmate incarcerated for an assaultive
offense is automatically ineligible for the intensive sanctions
program. This makes sense because
overbedding has forced the Department of Corrections to seek alternatives to
prison incarceration. One of those
alternatives is to admit inmates incarcerated for assaultive offenses to
MS/DIS, if they are otherwise eligible.
It is undisputed that
the PRC and the social worker responsible for preparing a case plan for Tyler
found that he was ineligible for MS/DIS because he was incarcerated for an
assaultive offense.
The PRC's return to the
writ of certiorari consists of the Inmate Classification Summary for
Tyler dated July 13, 1993, and his risk assessment of the same date. The Summary states: "[Tyler] was advised he is not eligible
due to the assaultiveness of his offense." I emphasize that there is a vast difference between being
"eligible" for MS/DIS and being found "suitable" by PRC for
the program. The question before us
is: "On July 13, 1993, was Tyler
ineligible for MS/DIS because of the assaultive nature of his
offense?" The answer to this
question requires that we examine the statutes and administrative rules which
establish the conditions of eligibility for MS/DIS. I emphasize, however, that the sole issue presented is whether
the statutes or the administrative rules make Tyler ineligible solely
because of the assaultive nature of his offense.
Section 301.048, Stats., creates the Intensive Sanctions
Program. The conditions of eligibility
which apply to Tyler are contained in sub. (2)(b) which reads:
A
person enters the intensive sanctions program only if he or she has been
convicted of a felony and only under one of the following circumstances:
....
(b) He or she is a prisoner serving
a felony sentence not punishable by life imprisonment and the department
directs him or her to participate in the program.
Tyler is a prisoner
serving a felony sentence not punishable by life imprisonment. However, the department has not directed him
to participate in MS/DIS. Respondents
do not claim that the department has unreviewable discretion whether to deny
otherwise eligible prisoners participation in MS/DIS. The department has adopted rules pursuant to § 301.048(10), Stats., to determine whether it would
direct an otherwise eligible prisoner to participate in MS/DIS.
Wisconsin
Adm. Code § DOC 333.04 provides:
A person is eligible for an MS/DIS
confinement classification if ...:
(1) The person is any of the
following:
....
(d) Transferred
to DIS by DAI in accordance with s. 301.048(2)(b), Stats., and s. DOC 302.20, provided that the inmate has a
case plan that includes an intended residence, either a school or job
placement or an alternative acceptable to the PRC and a proposal for meeting
treatment goals in the community.
(Emphasis
added.)
The PRC did not reach
the factors presented in Wis. Adm. Code
§ DOC 302.14 in assigning a security classification because they
considered Tyler automatically ineligible. The PRC simply rejected Tyler's application because he was
incarcerated for an assaultive offense.
That disqualification is not prescribed by § 301.048, Stats., or an adopted rule. This disqualification is found in the
so-called "Richards memo" which instructed all wardens as of May 3,
1993, to not consider prisoners incarcerated for assaultive offenses for MS/DIS
to save the paperwork of preparing a case plan by a social worker and
consideration by the PRC of the criteria.
The
eligibility requirements for MS/DIS cannot be added to by memorandum or policy;
a rule is necessary. Section 227.10(1),
Stats. The respondents do not mention the so-called "Richards
memo" in their brief. They attempt
to "restate" Tyler's claim:
They state that he "is challenging the ability of the department to
refuse to transfer him to the intensive sanctions program through the program
review process." That is not
Tyler's challenge. He argues that the
PRC cannot declare him ineligible for MS/DIS simply because he is incarcerated
for an assaultive offense. He also
argues that the social worker could not refuse to prepare a case plan for him
because of the nature of his offense. Wisconsin Adm. Code § DOC 333.04(1)(d)
makes it a precondition for MS/DIS that the social worker prepare a case plan to
present to the PRC for an inmate who seeks MS/DIS classification.
Because I agree with
Tyler's arguments in both respects, I respectfully dissent.
[2] Wisconsin Administrative Code § DOC 333.04(1)(d) provides that an inmate is eligible for a minimum security DIS classification if transferred to DIS by the division of adult institutions provided the inmate has a case plan.
[3] In his brief, Tyler maintains that he was classified as medium security by the PRC in February 1994. He contends the respondents erred in submitting "old PRC reports" and that the trial court erred in not considering his most recent PRC classification summary. We reject this argument. Tyler's petition sought review of the PRC's July 29, 1993 denial of DIS eligibility, and the respondents submitted a return of the record of this proceeding on April 19, 1994, approximately ten months before the PRC classification summary of February, 1995. The trial court is confined to the return on certiorari review, see State ex rel. Conn v. Board of Trustees, 44 Wis.2d 479, 482, 171 N.W.2d 418, 420 (1969), and the trial court appropriately disregarded Tyler's arguments regarding the PRC's classification summaries after July 29, 1993.
[4] Section 301.048(10), Stats., provides: "The department shall promulgate rules to implement this section."
[6] Other factors the PRC may consider under Wis. Adm. Code § DOC 302.14 include: the inmate's criminal record, the length of the sentence being served, the motivation for the crime, the inmate's attitude toward the crime and sentence, the inmate's vulnerability to assault by other inmates, the inmate's prior record of adjustment, the length of time the inmate has been in a particular security classification and institution, the inmate's medical needs, time already served for the offense, the reaction to the inmate in the inmate's community or in the community where the institution is located, the inmate's conduct and adjustment in the institution, the inmate's performance in programs, the existence of a detainer, and the inmate's risk rating under the department's risk rating system.