WRITS
Updated 1/27/10
Certiorari – Administrative Decision-Making Based Wholly on Uncorroborated Hearsay Insufficient
Michelle Williams v. Housing Authority of the City of Milwaukee, 2010 WI App 14
Issue/Holding:
¶13      The circuit court reversed the Housing Authority’s denial of rent assistance because it concluded that, under Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572, the Housing Authority could not base its decision solely on uncorroborated hearsay evidence (the officer’s written notes recalling the witness’s statement of what Williams said), and therefore, the Housing Authority lacked sufficient evidence on which to base its denial. We agree.

¶14      Uncorroborated hearsay evidence, even if admissible, does not by itself constitute substantial evidence.  Id., 278 Wis.  2d 111, ¶8 (citing Folding Furniture Works, Inc. v. Wisconsin LRB, 232 Wis. 170, 189, 285 N.W. 851 (1939)).  Adherence to this rule is premised on hearsay’s innate lack of reliability.  See id., ¶58.  “Substantial evidence has been defined … as ‘that quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion.’”  Id., ¶48.  Substantial evidence must include something “more than ‘a mere scintilla’ of evidence and more than ‘conjecture and speculation.’”  Id. (citations omitted).

Hearsay, to be sure, is admissible at an administrative proceeding, the point being that ultimately more is required, ¶¶15-24.
Certiorari – Inmate Complaint - “Misdirected” Writ, Lack of Jurisdiction
State ex rel. David C. Myers v. Smith, 2009 WI App 49
Pro se
Issue/Holding: Writ of certiorari “misdirected” to wrong respondent (in this instance, review of inmate complaint, improperly naming as respondent institution warden rather than DOC Secretary or designee) must be dismissed:
¶10      We begin by observing that certiorari “is available only for the purpose of reviewing a final determination.” Id., ¶12. The writ must be directed “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.” State ex rel. Kulike v. Town Clerk of Town of Lebanon, Dodge County, 132 Wis. 103, 105, 111 N.W. 1129 (1907). The final decision-making authority for an inmate complaint is identified by reference to the administrative code provisions.

¶11      … [T]he DOC secretary is the final decision maker on an inmate complaint initiated under the ICRS.

¶12      We understand that, particularly for a pro se appellant, some sections of the administrative code may be difficult to navigate. Myers, however, appears to have followed the procedures and obtained a final determination by the secretary’s designee as envisioned by the code. He initiated a complaint using the ICRS, he was dissatisfied with the ICE’s determination, he sought review, a CCE reviewed the determination and recommended that the secretary approve the decision, and the secretary [3] adopted the CCE’s recommendation. Myers has not made, nor could he reasonably support, an argument that he did not know the final decision maker was the secretary. Accordingly, we affirm the order of the circuit court, which dismissed the petition for lack of jurisdiction because the writ was misdirected. See Kulicki, 132 Wis. at 105; Grzelak, 263 Wis. 2d 678, ¶12.

Certiorari – Inmate Complaint - Limitation on Discovery
State ex rel. David C. Myers v. Smith, 2009 WI App 49
Pro se
Issue/Holding: Inmate may not utilize discovery to bypass security-based restrictions on access to banned material such as pornography:
¶16      Inmates must not be allowed to evade security restrictions by simply filing suit or petitioning for writ of certiorari and obtaining prohibited materials through discovery. Due process does not mean that a prisoner has an absolute right to everything relevant to his or her case. See Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) (lawful incarceration necessitates the withdrawal or limitation of many rights). “There must be a ‘mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.’” Id. at 546 (citation omitted). Materials banned to further legitimate penological interests are properly withheld. See Aiello v. Litscher, 104 F. Supp. 2d 1068, 1075 (W.D. Wis. 2000). Myers’ right to due process was satisfied when an independent entity, here the circuit court, reviewed whether the DOC decision to deny him access to the book was arbitrary and capricious. Cf. George v. Smith, 467 F. Supp. 2d 906, 921 (W.D. Wis. 2006) (where in camera inspection by court confirmed DOC decision was neither arbitrary nor irrational when it banned material as prohibited gang-related publication).
Certiorari -- Availability
State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse
Issue/Holding:
¶8. Myers appears to argue that the Wisconsin courts retain the ability to conduct certiorari review of a Wisconsin inmate's due process or equal protection challenge to a disciplinary action, even if the challenge involves conduct and a disciplinary proceeding that took place while the inmate was housed out of state. However, certiorari review of administrative proceedings is available only "when no legislative provision establishes how review may be had." State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶12, 256 Wis. 2d 787, 650 N.W.2d 43. Thus, if our legislature has provided a means of judicial review, Myers may not bypass that means and seek relief through certiorari review.
Certiorari – Judicial Act – Review Limited to Determining Tribunal’s Jurisdiction
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶8. … The State contends, however, that reconfinement orders may only be reviewed via common-law certiorari and not under Wis. Stat. Rule 809.30. It relies on State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam).

¶10. In ruling that Bridges could seek review via common-law certiorari, Bridges noted that certiorari "may be used to review judicial decisions." Id., 195 Wis. 2d at 258, 536 N.W.2d at 154. Bridges cited State ex rel. Department of Health and Social Services v. Circuit Court, 84 Wis. 2d 707, 711-712, 267 N.W.2d 373, 375 (1978) (per curiam), in support. Bridges, 195 Wis. 2d at 258, 536 N.W.2d at 154. Department of Health and Social Services recognized, however, in haec verba and by a decision upon which it relied, that certiorari review of a judicial act determines only whether the judicial tribunal was acting within its jurisdiction. Id., 84 Wis. 2d at 711-712, 267 N.W.2d at 375; see Krueger v. Cone, 106 Wis. 522, 523-524, 81 N.W. 984, 985 (1900) (cited by Department of Health & Soc. Servs., 84 Wis. 2d at 712, 267 N.W.2d at 375); Barnes v. Schmitz, 44 Wis. 482, 482 (1878) (cited by Krueger, 106 Wis. at 524, 81 N.W. at 985); see also State v. Gibbons, 71 Wis. 2d 94, 99-100, 237 N.W.2d 33, 35-36 (1976) (certiorari proper mechanism to review whether trial court had jurisdiction to impose conditions on a sentence to a state prison).

General
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding:
¶17 A "writ of supervision is not a substitute for an appeal." State ex rel. Dressler v. Circuit Court for Racine County, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991). The decision whether to issue a supervisory writ "is controlled by equitable principles and, in our discretion, we can consider the rights of the public and third parties." Id. A supervisory writ "is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency." Id. A petitioner seeking a supervisory writ must establish the following:
A petition for a supervisory writ will not be granted unless: (1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will result; (3) the duty of the trial court is plain and it must have acted or intends to act in violation of that duty; and (4) the request for relief is made promptly and speedily.
Burnett v. Alt, 224 Wis. 2d 72, 96-97, 589 N.W.2d 21 (1999)….
Mandamus -- Review of Denial of Judicial Substitution
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding:
¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496, 498, 546 N.W.2d 460 (1996). The circuit court violated a plain duty in refusing to honor Mateo's request. See State ex rel. Ondrasek v. Circuit Court for Calumet County, 133 Wis. 2d 177, 185, 394 N.W.2d 912 (Ct. App. 1986). We therefore grant the petition for a supervisory writ of mandamus and direct the chief judge and circuit court to honor the request for judicial substitution.
Mandamus -- General
State ex rel Darrell W. Griffin v. Litscher, 2003 WI App 60
Issue/Holding:
¶5. Mandamus is an extraordinary writ which may be used to compel a public officer to perform a duty which he or she is legally bound to perform. Karow v. Milwaukee County Civil Serv. Comm., 82 Wis. 2d 565, 568 n.2, 263 N.W.2d 214 (1978). There are four prerequisites for issuance of a writ of mandamus: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law. Pasko v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d 72 (citation omitted).

¶6. A motion to quash a writ of mandamus is treated the same as a motion to dismiss a complaint in a civil action. Wis. Stat. § 783.01. The facts pleaded and all reasonable inferences from the pleading must be taken as true. State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 195 n.5, 257 N.W.2d 877 (1977). The petition will be dismissed only when it is quite clear that under no conditions can the plaintiff recover. See State v. American TV & Appliance of Madison, Inc., 146 Wis. 2d 292, 300, 430 N.W.2d 709 (1988). Whether a complaint states a claim for which relief may be granted is a question of law which we review de novo. Bartley v. Thompson, 198 Wis. 2d 323, 331, 542 N.W.2d 227 (Ct. App. 1995).

Prohibition -- John Doe Proceeding
State ex rel. Individual v. Davis, 2005 WI 70, on certification
For Subpoenaed Individual: Stephen P. Hurley, Marcus J. Berghahn, Hal Harlowe
Issue/Holding:
¶15      A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. [6] As a remedy, writs of prohibition are often used in connection with John Doe proceedings. [7] Neither party challenges whether a writ of prohibition is the proper procedure to test the John Doe judge's authority in the present case. Rather, the parties dispute whether, based on the facts of this case, the court should issue the writ here.

¶16      A writ of prohibition is the appropriate remedy "to restrain the exercise of judicial functions outside or beyond the jurisdiction of a court, or an official acting in a judicial capacity, where great hardship would otherwise result." [8] Accordingly, if the court or a John Doe judge is properly exercising powers and jurisdiction, a writ will not issue. [9]

Supervisory Writ -- John Doe Proceeding, Review of
State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding:
¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including "other person or body," is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. Interpreting the constitution to allow for the court of appeals to exercise jurisdiction over the actions of a John Doe judge represents sound practice and is in keeping with the court of appeals' traditional role as an error-correcting court. See State ex rel. James L.J. v. Cir. Ct. for Walworth County, 200 Wis. 2d 496, 546 N.W.2d 460 (1996).

¶49. We emphasize, however, that writs stemming from John Doe proceedings should not become a vehicle for delaying a John Doe proceeding. Pursuant to Wis. Stat. (Rule) § 809.51(2), the court of appeals enjoys the discretion to deny a petition for supervisory writ ex parte, when warranted.

¶71. The party seeking review of a John Doe judge's decision shall file the petition for supervisory writ in the court of appeals, together with a motion seeking leave to file under seal any portions of the petition or record that fall within the scope of an existing secrecy order, but which the petitioner deems necessary to prosecute his or her petition. The State may respond to that motion. The court of appeals can then entertain the motion, and conduct an in camera review of the documents proposed to be filed under seal. If the documents appear to fall legitimately within the scope of a permissible secrecy order, the court may grant the motion and the documents will be filed under seal.

(State ex rel. Swan v. Elections Board, 133 Wis. 2d 87, 394 N.W.2d 732 (1986) (COA not empowered to compel Elections Board to place name on ballot) limited to its facts and distinguished, principally on the ground that that case involved an administrative agency. ¶¶42-44. The Chief Justice plausibly suggests that the effect is to overrule Swan. ¶76. James, referenced above, has to do with review of a chief judge’s substitution ruling; for any other examples of judges sitting as a “tribunal” and not a “court” (thereby preventing review by ordinary appeal), Unnamed Persons would seem to apply. In any event, there may be less here than meets the eye. The fundamental question is whether the court of appeals had original jurisdiction to review an order by a judge as opposed to a court. But there’s nothing to say that you can’t first get review, by one manner or another, in a circuit court, as the dissent points out.)