PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
March 30,
2000
Cornelia G. Clark
Acting Clerk, Court of Appeals
of
Wisconsin
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
§ 808.10 and Rule 809.62, Stats.
No. 99-0568
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
IV
State of Wisconsin ex
rel. William Speener,
Petitioner-Appellant,
v.
Donald Gudmanson,
Respondent-Respondent.
APPEAL from an order of the circuit court for Dane County: RICHARD J.
CALLAWAY, Judge. Affirmed.
Before Dykman, P.J., Eich and Vergeront, JJ.
¶1. DYKMAN, P.J.William Speener appeals from a circuit court order denying
his motion for reconsideration of an order dismissing his petition for a writ of certiorari. On
certiorari, Speener seeks reversal of the decision of the warden of Oshkosh Correctional
Institution at the time, Donald Gudmanson, affirming the prison adjustment committee's
finding that Speener was guilty of using marijuana. Speener argues that the circuit court
erred by basing its decision on incorrect information. He also contends that the adjustment
committee should not have held a second disciplinary hearing after we remanded the case
because the second hearing exceeded the time limits of Wis. Admin. Code § DOC
303.76 and was beyond the scope of our directions on remand. The circuit court's reasoning
is not relevant to our review on certiorari and we disagree with Speener's other contentions.
Based upon our independent review of the record before the adjustment committee, we
affirm.
¶2. On appeal, Speener submitted an affidavit of indigency and requested that
his filing fees be waived. At the time, he had been transferred to an out-of-state county jail.
We conclude that an inmate in an out-of-state county jail is not a "prisoner" for
purposes of Wis. Stat. §814.29 (1997-98).1 Therefore, we review Speener's request under
§814.29(1) and grant his petition for a fee waiver.
I. Background
¶3. In July 1996, the adjustment committee at Oshkosh Correctional Institution
found Speener guilty of using marijuana, in violation of Wis. Admin. Code §DOC
303.59. Speener appealed to the warden, arguing, among other things, that the adjustment
committee had denied him the opportunity to present his case by refusing to allow his
statement of facts and a set of documents he had compiled in his defense into the record.
The warden affirmed the adjustment committee's decision and the circuit court denied
Speener's petition for a writ of certiorari.
¶4. Speener appealed the circuit court's decision, arguing that the adjustment
committee had improperly prohibited him from introducing the documents in his defense at
his hearing. See State ex rel. Speener v. Gudmanson, No.
97-1762, unpublished slip op. at 2-3 (Wis. Ct. App. Oct. 1, 1998). We reversed because we
concluded that the record returned by the adjustment committee was insufficient to determine
whether the proceedings before it were procedurally proper. See
id. at 4. The record did not establish whether Speener had offered the
documents, and if he had, why the committee had not considered them. See
id. at 3. We remanded with the following directions:
[W]e reverse and remand only for a limited purpose:
supplementation of the record concerning compliance with procedural rules. We remand the
case to the circuit court with instructions to remand to the adjustment committee. On
remand, the committee shall supplement the record with an indication of whether Speener
sought to introduce the documents as he asserts. If he did offer them, the committee must
include them in the record and explain why the committee did not accept them. If he did not
offer them, the committee should so state.
Id. at 4 (citation omitted).
¶5. On October 9, 1998, the adjustment committee held another hearing based
on our directions on remand. At this hearing, the committee allowed Speener to introduce
the statement of facts and documentation that he alleged he had tried to introduce at the
original hearing. The committee again found Speener guilty of violating Wis. Admin. Code
§DOC 303.59 and the warden affirmed the committee's decision. The Oshkosh
Correctional Institution Registrar sent the supplemented record back to the circuit court with
a letter stating that Speener did not have his statement of facts and documentation compiled
at the time of the original hearing. The Registrar stated that the original hearing took place
on July15, 1996. However, the original disciplinary hearing form indicates that Speener's
first hearing took place on July 23, 1996, the same date Speener had on his statement of
facts.
¶6. On November 19, 1998, the circuit court ordered that Speener's case be
dismissed. The court's only reasoning was that it "appears from the record that the
petitioner created, compiled and offered the additional documents after the
original hearing held on July 15, 1996." Speener filed a motion for reconsideration
arguing that: (1)he had been unable to respond to the Registrar's allegation that he compiled
his documents after the date of the original hearing because he did not receive the
supplemented record until after the circuit court entered its order; (2)the court erred in
concluding that he compiled his documents after the original hearing because the hearing
took place on July 23, 1996 and not July 15; (3)the adjustment committee's second hearing
exceeded the scope of our directions on remand and violated Wis. Admin. Code §DOC
303.76 because it was held over two years after he received the adult conduct report
regarding his offense. The circuit court denied the motion for reconsideration and Speener
appeals.2
¶7. Speener has submitted an affidavit of indigency and requested a waiver of
the filing fee for his appeal. At the time Speener filed his notice of appeal, although he was
still a Wisconsin inmate, he was confined at a county jail in Texas, as permitted by Wis.
Stat. §301.21. Under Wis. Stat. §814.29(1), we may order that any person who
is not a "prisoner," as defined in Wis. Stat. §801.02(7)(a)2, be allowed to
commence an appeal without paying the filing fee if we find that the person is unable to pay
the fee because of poverty. However, under §814.29(1m), a "prisoner"
must pay the filing fee from his or her trust fund account. We previously concluded that
resolving the issue of whether we should evaluate Speener's request for a fee waiver under
§814.29(1) or §814.29(1m) depends on whether an inmate confined in an
out-of-state county jail is a "prisoner" as defined in §801.02(7)(a)2. We
ordered the parties to submit memoranda on the issue, and we will resolve Speener's request
for a fee waiver in this opinion.
II. Analysis
A. Fee Waiver
¶8. As we have explained, our analysis of Speener's request for a fee waiver
turns on whether he was a "prisoner," as defined in Wis. Stat.
§801.02(7)(a)2, at the time he filed the notice of appeal. A person is a prisoner under
§801.02(7)(a)2 if he or she is "incarcerated, imprisoned or otherwise detained in
a correctional institution."3
Section 801.02(7)(a)1 defines "correctional institution" as:
[A]ny state or local facility that incarcerates or detains any
adult accused of, charged with, convicted of, or sentenced for any crime. A correctional
institution includes a Type 1 prison, as defined in s. 301.01(5), a Type 2 prison, as defined
in s. 301.01(6), a county jail and a house of correction.
Thus, in order to resolve whether Speener was a
"prisoner" for purposes of Wis. Stat. §814.29, we must determine whether
an out-of-state county jail meets the definition of "correctional institution"
provided in §801.02(7)(a)1.
¶9. Statutory construction presents a question of law that we review de novo.
See State ex rel. Frederick v. McCaughtry, 173 Wis.2d 222,
225, 496 N.W.2d 177 (Ct. App. 1992). When we interpret a statute, our purpose is to
ascertain the intent of the legislature and give it effect. See
id. Our first step is to examine the language of the statute, and, absent
ambiguity, give the language its ordinary meaning. See id. at
225-26. If the language is ambiguous, we examine the scope, history, context, subject
matter and purpose of the statute in order to determine the legislative intent. See
id. at 226. "Statutory language is ambiguous if reasonable people
could disagree as to its meaning." Id.
¶10. We conclude that the words "any state or local facility," as
used in the definition of "correctional facility" in Wis. Stat.
§801.02(7)(a)1, are ambiguous. We cannot determine from the words alone whether
the legislature intended "any state or local facility" to apply to an out-of-state
county jail. A reasonable person might conclude that the words "any state or local
facility" refer to facilities operated by the State of Wisconsin or by political
subdivisions of the State of Wisconsin. However, it would also be reasonable to conclude
that the use of the word "any" demonstrates that "state or local
facility" refers to facilities operated by any state or the political subdivisions of any
state. Therefore, we will use other tools of statutory construction to ascertain the legislative
intent.
¶11. Construing the words "any state or local facility" within their
context in Wis. Stat. §801.02(7)(a)1, we conclude that the legislature did not intend the
definition of "correctional institution" to apply to out-of-state facilities. When a
general term, such as "any state or local facility," "is preceded or followed
by a series of specific terms, the general term is viewed as being limited to items of the same
type or nature as those specifically enumerated." State v.
Campbell, 102 Wis.2d 243, 246, 306 N.W.2d 272 (Ct. App. 1981). In
§801.02(7)(a)1 the term "any state or local facility," is followed by this
sentence: "A correctional institution includes a Type 1 prison, as defined in s.
301.01(5), a Type 2 prison, as defined in s. 301.01(6), a county jail and a house of
correction." This sentence lists specific types of correctional facilities found in
Wisconsin. While county jails and houses of correction are used in other states as well,
when words are associated, they should ordinarily be understood in the same general sense.
See State v. Johnson, 171 Wis.2d 175, 181, 491 N.W.2d 110
(Ct. App. 1992). In this case, "county jail" and "house of
correction" are coupled with "Type 1" and "Type 2" prisons,
facilities that are specific to Wisconsin since they are defined by statute.4 Furthermore, the sentence does not contain any
reference to types of facilities that might be used in other states, but not in Wisconsin.
Considering that the specific list of correctional facilities given in the statute refers only to
facilities found in Wisconsin, we conclude that the term "any state or local
facility" is also limited to Wisconsin facilities.
¶12. Gudmanson argues that the use of the word "includes" in the
second sentence of Wis. Stat. §801.02(7)(a)1 demonstrates that the list was meant to be
illustrative and not exclusive. Thus, he contends that the term "any state or local
facility" is not limited to Wisconsin facilities by the specific list. We disagree. While
the second sentence of §801.02(7)(a)1 does not necessarily exclude unlisted facilities
from the definition of a "correctional institution," it does indicate that the
definition is limited to facilities found in Wisconsin. Section 801.02(7)(a)1 contains no
reference to out-of-state facilities, and the second sentence refers only to facilities found in
Wisconsin. By including the second sentence, the legislature demonstrated its intent to limit
the definition to Wisconsin facilities.
¶13. Gudmanson contends that the Prisoner Litigation Reform Act (PLRA),
1997 Wis. Act 133, under which Wis. Stat. §801.02(7)(a) was created, was intended
to reduce prisoner litigation. He points out that the PLRA expanded the requirement under
§801.02(7)(b) that a prisoner must exhaust all administrative remedies before filing
suit, and created Wis. Stat. §814.29(1m), requiring prisoners to pay filing fees.
See 1997 Wis. Act 133, §§11 and 35. Gudmanson also explains that
Wis. Stat. §301.21, the statute authorizing the transfer of Wisconsin prisoners out of
state, existed at the time the legislature enacted the PLRA. He asserts that we must assume
that the legislature knew the laws in effect at the time it passed the PLRA, see
Roberta Jo W. v. Leroy W., 218 Wis.2d 225, 233, 578 N.W.2d 185
(1998), and that the legislature contemplated that Wisconsin would be sending prisoners to
out-of-state facilities at the time it created the restrictions on prisoner litigation. He contends
that the legislature would not have intended to require in-state prisoners to exhaust
administrative remedies and pay filing fees, but not out-of-state prisoners. Gudmanson
argues that the legislature changed the definition of "prisoner" used in
§801.02(7) in order to account for prisoners who might be transferred to another
state.5
¶14. We disagree with Gudmanson's contentions. Wisconsin Stat.
§301.21(1m) and (2m) authorizes the Department of Corrections to enter into contracts
with other states, political subdivisions of other states or private persons for the transfer of
prisoners. The legislature created §301.21(2m), authorizing the department to enter
into a contract with private persons, before it enacted the PLRA. See 1997 Wis.
Act 27, §3830r; 1997 Wis. Act 133. Thus, the legislature knew that Wisconsin
prisoners could be transferred to private facilities at the time it enacted the PLRA.
However, the use of the words "any state or local facility" unambiguously
demonstrates the legislature's intent to exclude privately-run facilities from the definition of
"correctional institution" in Wis. Stat. §801.02(7)(a)1. The legislature did
not intend the restrictions of the PLRA to apply to all prisoners no matter where they are
confined. "Correctional institution," as defined in §801.02(7)(a)1 does not
include out-of-state or private facilities.
¶15. Finally, Gudmanson points out that Wis. Stat. §801.02(7)(a)2.a-e
contains a list of people who are excluded from the definition of "prisoner." He
argues that had the legislature intended to exclude people confined in out-of-state county jails
from the definition of prisoner it would have added such an exclusion to the list. However,
there is no need to add people confined in out-of-state facilities to the list of exclusions if
they are already excluded by the definitions of "prisoner" and "correctional
institution" themselves. In addition, the exclusions listed in §801.02(7)(a)2.a,c,d
and e all make exceptions to the definition of "prisoner" based on specific
provisions in the Wisconsin Statutes. The fact that all but one of the exceptions under
§801.02(7)(a)2 are specific to Wisconsin further demonstrates the legislature's intent to
limit the definitions of "prisoner" and "correctional institution" to
Wisconsin.6
¶16. Since the definition of "correctional institution" in Wis. Stat.
§801.02(7)(a)1 does not include an out-of-state county jail, Speener was not a
"prisoner" under §801.02(7)(a)2 at the time he filed his notice of appeal.
Therefore, we evaluate his request for a fee waiver under Wis. Stat. §814.29(1).
Upon reviewing his affidavit of indigency, we conclude that Speener satisfies the conditions
for a waiver under that section. Accordingly, we order that Speener's petition for a fee
waiver is granted.7
B. Merits of The Appeal
¶17. Speener argues that the trial court erred when it dismissed his case, because
it based the dismissal on incorrect information regarding the date of his original hearing. He
contends that he did not compile the documents in his defense after his original hearing date
because the hearing was held on July 23, 1996 and not July 15. Speener also asserts that the
adjustment committee should not have held a new hearing on remand because the new
hearing exceeded the time limits in Wis. Admin. Code §DOC303.76 and was beyond
the scope of our directions.
¶18. On certiorari, we review the decision of the prison adjustment committee
independently of the trial court. See State ex rel. Whiting v.
Kolb, 158 Wis.2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990). Our review is
limited to: (1)whether the committee's decision was within its jurisdiction; (2)whether it
acted according to law; (3)whether its decision was arbitrary, oppressive or unreasonable and
represented the committee's will and not its judgment; and (4)whether the evidence was
sufficient to demonstrate that the committee's decision was reasonable. See
id. In reviewing the evidence, we apply the substantial evidence test,
"under which we determine whether reasonable minds could arrive at the same
conclusion the committee reached." Id. "Our review is
limited to the record created before the committee." Id.
¶19. Gudmanson concedes that the trial court misunderstood the date of the
original hearing. However, since we review the decision of the adjustment committee
independently of the trial court, the basis on which the trial court rested its decision is not
relevant.
¶20. We conclude that the adjustment committee stayed within its jurisdiction
and did not act contrary to law. We do not agree that the committee exceeded the time
limits imposed by Wis. Admin. Code § DOC303.76 when it held the hearing on
remand. Wisconsin Admin. Code § DOC303.76(3) provides:
Time limits. A due process hearing shall be held no sooner
than 2 working days or later than 21 days after the inmate receives a copy of the conduct
report and hearing notice. An inmate may waive these time requirements in writing if the
security director agrees to the waiver. The inmate may request additional time to prepare for
the hearing, and the security director shall grant the request unless there is a good reason to
deny it.
In this case, the hearing on remand occurred over two
years after Speener received his conduct report and hearing notice. However, Speener
waived the twenty-one day time limit on his notice of hearing form, as allowed by Wis.
Admin. Code §DOC 303.76(3). In addition, the new hearing took place after Speener
petitioned the circuit court for a writ of certiorari and appealed the circuit court's decision,
and after we remanded the case so that the record could be supplemented. Considering the
time involved in judicial proceedings, we do not agree that the twenty-one day limit applies
to hearings held on remand.
¶21. We also do not agree that the adjustment committee exceeded the scope of
our directions on remand. We remanded the case so that the committee could supplement
the record with either the documents Speener offered in his defense or with a statement that
Speener had not offered the documents at the original hearing. The committee followed our
instructions and made Speener's documents part of the record at the rehearing. It did not
accept any additional evidence other than that which it reviewed at the original hearing in
1996. The committee did not exceed our instructions when it reaffirmed its finding of guilt
at the hearing on remand based on its review of Speener's documents along with the evidence
before it at the original hearing.
¶22. Based on our review of the record before the committee on remand, we
conclude that the committee's decision was not arbitrary, oppressive or unreasonable and that
the evidence satisfies the substantial evidence test. The committee reviewed the
computerized results of a urinalysis test indicating that Speener had tested "high"
for "cannabinoids." Speener submitted a different read-out indicating that he
tested at 130.3, and a urinalysis report indicating that he had "tested positive for
cannabinoid." He also submitted the chain of evidence log for his urinalysis showing
only one person as handling his urine specimen, indicating that Speener had taken some
medicine in the seventy-two hours before the test, and indicating that a result of 130.3
amounted to a positive test for cannabinoids. Finally, he submitted a chain of evidence log
for another inmate's urinalysis test showing entries for a number of people who handled the
urine specimen, the Department of Corrections internal memo on urinalysis testing, a letter
denying him access to the urinalysis machine manual, and the Department of Corrections'
mission statement. Based on the urinalysis results, reasonable people could conclude that
Speener had used marijuana despite the fact that he had taken medicine in the seventy-two
hours before the test and that his chain of evidence log contained only one entry.
¶23. Speener also contends that his due process rights, under the Fourteenth
Amendment to the United States Constitution and article I, sections 1 and 8 of the Wisconsin
Constitution, were violated because: (1)he was not provided sufficient notice of the hearing
on remand; (2)he was not allowed to present witnesses; (3)he was denied a second urinalysis
test to confirm the results of the first; and (4)the prison did not follow proper procedure in
processing his urine sample. However, Speener has appealed only from the order denying
his motion for reconsideration. He did not raise any of these issues in that motion and,
generally, we do not consider issues that were not raised before the trial court.
See Greenlee v. Rainbow Auction/Realty Co., 202 Wis.2d
653, 672, 553 N.W.2d 257 (Ct. App. 1996). We see no compelling reason to address these
issues on appeal.
¶24. For the reasons discussed above, we order that Speener's petition for a fee
waiver is granted and we affirm the circuit court's order denying Speener's motion for
reconsideration.
By the Court.-Order affirmed.
Recommended for publication in the official reports.
1 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
2 After reviewing jurisdictional memos submitted by the parties, we ordered that we had
jurisdiction over the appeal because Speener's motion for reconsideration raised issues
different from those determined in the order sought to be reconsidered. See
Silverton Enters. v. General Cas. Co. of Wis., 143 Wis.2d 661, 665, 422
N.W.2d 154 (Ct. App. 1988).
3 Wis. Stat. §801.02(7)(a)2 provides:
"Prisoner" means any person who is incarcerated,
imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise
detained by a law enforcement officer. "Prisoner" does not include any of the
following:
a.A person committed under ch. 980.
b.A person bringing an action seeking relief from a judgment terminating parental
rights.
c.A person bringing an action seeking relief from a judgment of conviction or a
sentence of a court, including an action for an extraordinary writ or a supervisory writ
seeking relief from a judgment of conviction or a sentence of a court or an action under s.
809.30, 809.40, 973.19 or 974.06.
d.A person bringing an action under s. 809.50 seeking relief from an order or
judgment not appealable as of right that was entered in a proceeding under ch. 980 or in a
case specified under s. 809.30 or 809.40.
e.A person who is not serving a sentence for the conviction of a crime but who is
detained, admitted or committed under ch. 51 or 55 or s. 971.14 (2) or
(5).
4 "Type 1" and "Type 2" prisons are defined in Wis. Stat.
§301.01(5) and (6). In addition, several Wisconsin statutes use the terms
"county jail" and "house of correction." See, e.g., Wis.
Stat. §§302.18, 302.31, 302.315, 302.33, 302.365 and 302.45. Although these
statutes do not define those terms, they use them in a context indicating that they are
referring to Wisconsin facilities. For example, the same statutes use the term
"department," referring to the Department of Corrections. See
§301.01(1).
5 Gudmanson points out that, prior to the PLRA, Wis. Stat. §801.02(7) defined
prisoner by reference to Wis. Stat. §301.01(2). Section 801.02(7) (1995-96). Section
301.01(2) provides, in part: "`[p]risoner' means any person who is either arrested,
incarcerated, imprisoned or otherwise detained in excess of 12 hours by any law enforcement
agency of this state...." Section 301.01(2) (1995-96) (emphasis added).
The PLRA added the definitions of "prisoner" and "correctional
facility" discussed in this opinion to §801.02(7) and removed the reference to
§301.01(2). See 1997 Wis. Act 133, §§11-12.
6 Wisconsin Stat. §801.02(7)(a)2.b creates an exception to the definition of
"prisoner" for "[a] person bringing an action seeking relief from a
judgment terminating parental rights." While this exception does not refer to the
Wisconsin Statutes as do the other exceptions, neither does it demonstrate that the definition
of "prisoner" should include people confined in out-of-state facilities.
7 This a waiver of the filing fee only in the Court of Appeals. It is not a determination of
indigency for any other purpose.
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