Daniel D. Drow v. David H. Schwarz
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SUPREME COURT OF WISCONSIN Case No.: 97-1867 Complete Title of Case: Daniel D. Drow, Petitioner-Appellant, v. David H. Schwarz and Division of Hearings and Appeals, State of Wisconsin, Respondents-Respondents-Petitioners. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 220 Wis. 2d 415, 583 N.W.2d 655 (Ct. App. 1998, Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: May 5, 1999 March 4, 1999 Circuit Marathon Vincent K. Howard JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the respondents-respondents-petitioners the cause was argued by Pamela Magee, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. For the petitioner-appellant there was a brief by Amy K. McDavid and Frank J. Remington, University of WI Law School, Madison and oral argument by Amy K. McDavid. No. 97-1867 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-1867 STATE OF WISCONSIN : IN SUPREME COURT FILED Daniel D. Drow, MAY 5, 1999 Petitioner-Appellant, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. David H. Schwarz and Division of Hearings and Appeals, State of Wisconsin, Respondents-RespondentsPetitioners. REVIEW of a decision of the Court of Appeals. ¶1 SHIRLEY S. ABRAHAMSON, CHIEF Reversed. JUSTICE. This is a review of a published decision of the court of appeals, Drow v. Schwartz, 220 Wis. 2d 415, 583 N.W.2d 655 (Ct. App. 1998), which reversed Vincent an order of the K. Howard, Circuit Judge. The Court circuit for Marathon court County, order denied Daniel D. Drow's petition for a writ of certiorari to review revocation of his probation. ¶2 540, Relying on State ex. rel Johnson v. Cady, 50 Wis. 2d 550, 185 N.W.2d "petitioner's right of 360 review (1971), of a which concluded revocation hearing that is by certiorari to the court of conviction," the court of appeals held that "court of conviction," means "the same branch of the circuit court in which he was convicted" rather than in a branch 1 No. of the "circuit court in the county of conviction."1 97-1867 Because Drow was convicted in Branch 2 of the Circuit Court for Marathon County, the court of appeals held that Branch 3 of the Circuit Court for Marathon County had no jurisdiction to review Drow's certiorari petition. ¶3 The only issue presented for our review is whether a certiorari proceeding to review a probation revocation must be heard by the same branch of the circuit court in the county in which the probationer was convicted of the offense for which he was on probation. We hold that a certiorari proceeding to review a probation revocation need not be heard by the same branch of the circuit court in the county in which the probationer was convicted of the offense for which he was on probation; a certiorari proceeding to review a probation revocation may be heard in any branch of the circuit court in the county in which the probationer was last convicted of an offense for which he or she was on probation. § 801.50(5) (1997-98).2 See Wis. Stat. Accordingly, we reverse the decision of the court of appeals. ¶4 The facts necessary to this review are undisputed. On October 8, 1993, Daniel D. Drow entered pleas of no contest to 1 The court of appeals did not suggest that State ex. rel Johnson v. Cady, 50 Wis. 2d 540, 550, 185 N.W.2d 360 (1971), requires that the judge who presided at the conviction proceeding need be the same judge who hears the certiorari proceeding. 2 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. 2 No. 97-1867 charges of sexual assault of a child in the second degree in violation of Wis. Stat. § 948.02(2) (1991-92), exposing a child to harmful materials in violation of Wis. Stat. § 948.11(2)(a) (1991-92) and two counts of bail jumping in violation of Wis. Stat. § 946.49(1)(b) (1991-92). for Marathon County withheld Branch 2 of the Circuit Court Drow's years of supervised probation. for Marathon County sentence and ordered 25 Branch 2 of the Circuit Court imposed the requirement that Drow participate in a sex offender treatment program as one of the conditions of probation. On March 20, 1996, the Department of Corrections charged Drow with violating probation. After a hearing by the Division of Hearings and Appeals, Drow's probation was revoked. this condition of Subsequently, Drow filed a petition for a writ of certiorari with the Circuit Court for Marathon County, the county in which he was convicted of the offense for which he was on probation, seeking judicial review of his probation revocation. The certiorari review was assigned to Branch 3 of the Circuit Court for Marathon County. ¶5 to The issue presented is whether a certiorari proceeding review a probation revocation must be heard by the same branch of circuit court in the county in which the probationer was convicted of the offense for which he was on probation. This court circuit decides court and this court question of of appeals, law independent benefiting from of the their analyses. ¶6 We begin by examining the statutory powers of each branch of a circuit court in a county and the statutory venue 3 No. provision for review of probation revocation. 97-1867 Wisconsin Stat. § 753.061(1) states that "[e]ach branch constitutes a circuit court with all the powers and jurisdiction possessed by circuit courts in circuits having one judge only." Drow argues that this statute means that all references to "circuit court" are to be interpreted Section as meaning § 753.061(1) interpretation. We a simply read "branch provides of no § 753.061(1) a circuit support as for stating court." such that an each branch of a circuit court is endowed with the full powers of a circuit court and that each branch of a circuit court has the same powers as every other branch of the circuit court. Thus, any branch of the Circuit Court for Marathon County has the power to review a probation revocation. ¶7 probation The only statutory provision referring to the venue of revocation providing that proceedings "venue of is an relator was last convicted relator was on probation . . . ."3 of Stat. action probation . . . revocation . . . shall the Wis. be an the § 801.50(5) to county offense for review in a which which the This provision mandates, for example, that the venue of a certiorari review of a probation revocation is the county in which the probationer was convicted 3 Wis. Stat. § 801.02(5) provides: Venue of an action to review a probation or parole revocation or a refusal of parole by certiorari shall be the county in which the relator was last convicted of an offense for which the relator was on probation or parole or for which the relator is currently incarcerated. 4 No. of the offense for which he or she was on 97-1867 probation; the provision does not require that certiorari review of a probation revocation be conducted by any particular branch of the circuit court in the county of conviction.4 Thus this statute establishes that in the present case, venue is in the Circuit Court for Marathon County, not in any particular branch of the Circuit Court for Marathon County. ¶8 Examining only Wis. Stat. §§ 753.061 and 801.50(5) would lead us to conclude that any branch of the Circuit Court for Marathon County could hear Drow's certiorari petition for review of probation revocation. ¶9 The court of appeals, however, looked beyond these statutes to Johnson, a 1971 case, which it reads as requiring that a petition to review probation revocation is to be heard "in the same branch of circuit court in which the petitioner was convicted." ¶10 Drow, 220 Wis. 2d at 417-18. We do not read Johnson in this manner. The issue presented in Johnson was whether a probationer had a right to a hearing revoked. at the administrative agency before probation was The Johnson court concluded that a probationer had the right to an administrative hearing and further concluded that it 4 The administrative agency has interpreted the statute similarly. The form letter sent to Drow from the Division of Hearings and Appeals along with a copy of its decision set forth the following procedure for seeking judicial review: Judicial review of a revocation decision may be obtained by Writ of Certiorari in the county in which you were last convicted of an offense for which you were on supervision. See sec. 801.50(5). 5 No. is "well established in this state that where there 97-1867 are no statutory provisions for judicial review, the action of a board or commission may be reviewed by way of certiorari." 50 Wis. 2d at 550. judicial review Johnson, The Johnson court went on to hold that of probation revocation directed to the court of conviction." 550 (emphasis added). was "by certiorari Johnson, 50 Wis. 2d at Reading the words "court of conviction" to mean the branch of the circuit court in the county in which the probationer was convicted of the offense for which he or she was on probation, as the court of appeals did, is not supported by because Johnson Johnson makes no mention Johnson should of a branch of circuit court. ¶11 We conclude that be read with § 801.50(5) to mean that certiorari review is to be directed to a circuit court in the county of conviction of the offense for which he was on probation. In Bartus v. Wisconsin DHSS, 176 Wis. 2d 1063, 1079, 501 N.W.2d 419 (1993), this court cited both the venue provision of Wis. Stat. § 801.50(5) and Johnson, stating the following rule: "A probationer whose term has been revoked may seek review of the Administrator's determination by certiorari in the county in which the probationer was convicted of the offense for which the now revoked probation was imposed." In other words, we view Johnson's phrase "court of conviction" as being the same as the statutory phrase "county of conviction" in the context of the judicial review of a probation revocation. ¶12 We conviction" therefore as used in hold that Johnson 6 does the not phrase refer "court to the of exact No. 97-1867 branch in the county in which the probationer was convicted of the offense for which he was on probation, but instead refers more generally to the circuit court in the county in which the probationer was convicted of the offense for which he was on probation. ¶13 Drow advances two reasons to support his thesis that the same branch of the Circuit Court for Marathon County in which he was convicted and placed on review the revocation of his probation. probation should also First, he argues that allowing review by a different branch deprives the sentencing branch of imposing the the opportunity relevant to ensure conditions of that its probation intentions were in followed. Second, Drow contends that the sentencing branch is in the best position to determine whether the violation of probation found by the department was reasonably supported by the evidence. ¶14 Both arguments are based on a misconception of the scope of certiorari review. The well-settled rule in Wisconsin is that on review by certiorari, the reviewing court examines the record of the determining: administrative (1) whether the agency board and is kept limited within to its jurisdiction, (2) whether the board acted according to law, (3) whether the board's action was arbitrary, oppressive or unreasonable and represented its will and not its judgment, and (4) whether the evidence was board might reasonably make the order or determination in question. State 7 such that the No. v. Goulette, Because 65 of the administrative imposed Wis. 2d 207, limited record, sentence has the no 215, 222 judicial branch of greater N.W.2d review the (1974).5 622 based in on the court circuit expertise 97-1867 that a certiorari proceeding than any other branch of the circuit court for that county. ¶15 Finally, Drow claims that he is entitled to certiorari review by Branch 3 of the Circuit Court for Marathon County under Rule Rule 1.12 designated 1.12 of the provides Intake Marathon County Circuit Court that writs "are to be assigned Court" except that "certiorari the State that this rule is ambiguous. to in the criminal 6 We agree A probation matters [are] to be heard by the sentencing court." with Rules. revocation proceeding "is a civil proceeding in Wisconsin" and "not, as a 7 constitutional matter, a stage of criminal prosecution." Thus the certiorari proceeding in the present case unambiguously does not fall within Rule 1.12. Even assuming that Rule 1.12 requires that Drow's certiorari petition be assigned to the branch of circuit court in which Drow was 5 See also Coleman v. Percy, 96 Wis. 2d 578, 588, 292 N.W.2d 615 (1980); Van Ermen v. Wisconsin DHSS, 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978); Snajder v. State, 74 Wis. 2d 303, 310, 246 N.W.2d 665 (1976); Von Arx v. Schwartz, 185 Wis. 2d 645, 655-56, 517 N.W.2d 540, 544 (Ct. App. 1994). 6 Wisconsin Circuit Court Rules, Marathon County Rules 2 (Wis. Jury Verdict, Inc. 1999). 7 State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 513, 563 N.W.2d 883 (1997). 8 No. convicted of the offense for which he was on 97-1867 probation, violation of a local administrative rule of the Circuit Court for Marathon County regarding assignment of cases to the branches would not ordinarily render the proceedings null and void. ¶16 Our holding developing and assignment of does not implementing certiorari restrict local petitions circuit rules for courts relating review of from to the probation revocations as long as the rules are consistent with law and this court's rules of judicial administration. See SCR 70.34. We merely hold that certiorari review of probation revocations need not be conducted by the same branch of circuit court in the county in which the probationer was convicted of the offense for which he or she was on probation. ¶17 In sum, we hold that a certiorari proceeding to review a probation revocation need not be heard by the same branch of circuit court in the county in which the probationer was convicted of the offense for which he or she was on probation; a certiorari proceeding to review a probation revocation may be heard in any branch of the circuit court in the county in which the probationer was last convicted of an offense for which he or she was on probation. See Wis. Stat. § 801.50(5). Accordingly we reverse the decision of the court of appeals. By the court.-The decision reversed. 9 of the court of appeals is 1
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