Spriggie Hensley v. Jeffrey P. Endicott

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2001 WI 105 SUPREME COURT OF WISCONSIN Case No.: 00-0076 Complete Title of Case: State of Wisconsin ex rel. Spriggie Hensley, Plaintiff-Appellant, v. Jeffrey P. Endicott and Wisconsin Department of Corrections, Defendants-Respondents-Petitioners. REVIEW OF A DECISION OF THE COURT OF APPEALS 2000 WI App 189 Reported at: 238 Wis. 2d 649, 618 N.W.2d 245 (Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 11, 2001 May 30, 2001 Circuit Dane Steven D. Ebert BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. Not Participating: ATTORNEYS: For the defendants-respondents-petitioners the cause was argued by Michael D. Oeser, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. For the plaintiff-appellant there was a brief by Beth Ermatinger Hanan and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, and oral argument by Beth E. Hanan. An amicus curiae brief was filed by Michael P. May and Boardman, Suhr, Curry & Field LLP, Madison, on behalf of the American Civil Liberties Union of Wisconsin Foundation. 2 2001 WI 105 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-0076 STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. Spriggie Hensley, FILED Plaintiff-Appellant, v. JUL 11, 2001 Jeffrey P. Endicott, and Wisconsin Department of Corrections, Cornelia G. Clark Clerk of Supreme Court Madison, WI Defendants-RespondentsPetitioners. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. decision of the court of Reversed. This is a review of a published appeals, State ex rel. Hensley v. Endicott, 2000 WI App 189, 238 Wis. 2d 649, 618 N.W.2d 245, reversing an order of the Dane County Circuit Court, Steven D. Ebert, Judge. there is Litigation a There are two issues. common Reform law Act's futility (PLRA), The first issue is whether exception codified to at the Prisoner Wis. Stat. § 801.02(7)(b)(1997-98),1 statutory exhaustion requirement. 1 We All references to the Wisconsin Statutes are to the 199798 version unless otherwise indicated. No. find that prisoners the to statute exhaust is clear their on its face administrative bringing an action in circuit court. in remedies 00-0076 requiring prior to Accordingly, there is no common law futility exception to the PLRA. The second issue is whether the court of appeals' holding that Wis. Stat. § 227.40, a declaratory judgment statute, trumps the PLRA was contrary to rules of statutory construction. Because the PLRA is more specific and passed later in time than § 227.40, it should have been applied to require the prisoner to exhaust his administrative remedies. I ¶2 Columbia Spriggie Hensley Correctional complaint for (Hensley), Institution declaratory judgment in incarcerated Portage against in County, the the filed Department a of Corrections (DOC) in Dane County Circuit Court challenging the validity of two administrative regulations on First Amendment and Equal Protection grounds. The first regulation prohibited prisoners from having pornographic materials while the second prohibited players. prisoners from having cassette tapes and tape The DOC responded with a motion to dismiss because Hensley failed to plead exhaustion of administrative remedies per the PLRA. Although the circuit court found that Hensley stated a claim, it concluded that he was required to exhaust his administrative remedies under the PLRA and therefore dismissed his complaint. ¶3 The circuit court. Hensley appealed. court of appeals reversed the decision of the In so doing, the court observed that Hensley 2 No. 00-0076 claimed the rules "are unconstitutional; and that question is unsuited process 2000 to in WI resolution a App particular 189, ¶5. through an inmate correctional The complaint institution." court then found review Hensley, two cases "persuasive" on the issue of exhaustion, Cravatt v. Thomas, 399 F.Supp. 956 (W.D. Wis. 1975), and Green v. Nelson, 442 F. Supp. 1047 (D. Conn. 1977). Hensley, 2000 WI App 189, ¶¶6-7. Sharing the "sentiments" expressed in those cases, the court of appeals asserted "that to require Hensley to advance his constitutional challenges to the rules in question before his institution's complaint review committees and appeal personnel as a Id. at ¶¶7-8. precondition to raising them is unnecessary." Instead, the court found that Wis. Stat. § 806.04, which sets forth the general rules governing declaratory relief, and Wis. Stat. § 227.40(1), which deals with contesting the validity of administrative rules through declaratory judgment proceedings, trumped the PLRA's exhaustion requirement. ¶4 We subsequently accepted the Id. at ¶3. DOC's petition for review. II ¶5 Before reaching the first substantive issue, we must address Hensley's threshold assertion, urged at oral argument, that we should decline to review whether there is a common law futility exception to the PLRA because the underlying dispute in this case has been rendered moot by the implementation of an emergency administrative rule, temporarily particular prison rules challenged by Hensley. 3 supplanting the Wis. Admin. Reg. No. No. 543 (Mar. 2001). Even though an issue may be moot, this court will nevertheless address that issue if: of great public importance; that frequently definitive a 00-0076 (2) the decision (1) the issue is situation is occurs necessary to so guide circuit courts; (3) the issue is likely to arise again and a decision from the court would alleviate uncertainty; or (4) the issue will because likely the be appellate repeated but evades process cannot be appellate completed review or even undertaken in time to have a practical effect on the parties. State v. Gray, 225 Wis. 2d 39, 66, 590 N.W.2d 918 (1999). Here, the first issue is whether the PLRA applies to a broad class of constitutional challenges raised by prisoners. likely to arise again and a decision from This issue is this court will alleviate uncertainty circuit courts may have on whether they should find that a particular prisoner has exhausted his or her administrative remedies as a precondition for a challenge to a condition of the facility in which he or she is confined. we will parties. address Id. this issue as presented and briefed Thus, by the For the sake of completeness, we will address the second related issue of whether Wis. Stat. § 227.40(1) trumps the PLRA on the requirement of exhaustion. ¶6 Hensley asserts that there is common exception to the PLRA's exhaustion requirement. presents an issue of questions of statutory statutory construction construction. de novo. law futility He therefore We State review ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶17, 236 Wis. 2d 473, 613 N.W.2d 591. 4 No. ¶7 The analytical framework for Wisconsin 00-0076 courts when confronted with a dispute that necessarily entails resolution of a point of statutory construction is well-established law. When we are confronted with a case that presents an unresolved point of statutory construction, we engage in statutory interpretation to discern Wis. 2d the 316, legislative 323-24, 595 intent. N.W.2d State 692 v. (1999). Sprosty, As we 227 have previously commented, "[o]ur duty to fulfill legislative intent ensures that substituting legislature." ¶8 we uphold judicial the policy of powers by not views the views of the for Cramer, 2000 WI 86 at ¶17. In adhering to our adjudicative role, we employ our established analytical framework construction, which avoids legislature. First, we statute. separation Id. at ¶18. on invading look at the a point the of statutory province plain of language the of the Where the language of the statute is clear, we do not look beyond the language of the statute to discern legislative intent. Sprosty, 227 Wis. 2d at 324. It is only upon a finding of ambiguity that a court turns to extrinsic materials in order to discern the legislative intent. Cramer, 2000 WI 86 at ¶18. ¶9 The PLRA, codified at Wis. Stat. § 801.02(7)(b), provides: No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative 5 No. 00-0076 remedies that the department of corrections has promulgated by rule or, in the case of prisoners not in the custody of the department of corrections, that the sheriff, superintendent or other keeper of a jail or house of correction has reduced to writing and provided reasonable notice of to the prisoners. The plain language of the PLRA here indicates the intent of the legislature. It encompasses all prisoners who challenge "conditions in the facility in which he or she is or has been incarcerated, imprisoned, or detained" through civil actions or special proceedings, as well as common law writs of certiorari. Id. No such proceeding can be commenced unless the prisoner "exhausted all available administrative remedies." Id. plain language contains no exception regarding futility. The It is not within our judicial function to insert the phrase "where they are not shown to be futile" after "administrative remedies" in the statute. Therefore, we conclude that the plain language of requires the PLRA administrative remedies prisoners prior to to exhaust challenging a all their condition in their respective facilities through any civil actions or special proceedings, including common law writs of certiorari. ¶10 In interpreting Wisconsin's PLRA on the issue of exhaustion, we can take guidance from the United States Supreme Court's recent interpretation of the federal PLRA, upon which the Wisconsin PLRA is based, in Booth v. Churner, 121 S. Ct. 6 No. 1819 (2001).2 See Cramer, 2000 WI 86 at ¶38. 00-0076 In Booth, a state prisoner in Pennsylvania brought a 42 U.S.C. § 1983 action in federal court alleging violation of his Eighth Amendment right to be free from cruel officers.3 and unusual 121 S. Ct. at 1821. punishment by corrections Booth, like Hensley, asserted that he was not required to exhaust his administrative remedies 2 The federal PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a)(2000). Thus, there is only a slight variation between the federal PLRA and the Wisconsin PLRA statutes. Hensley places great emphasis on the difference between the two statutes, arguing that it undercuts the persuasive force of Booth v. Churner, 121 S. Ct. 1819 (2001), as well as other federal decisions interpreting the federal PLRA. We disagree. Our purpose in interpreting a statute is to discern the intent of the legislature. State v. Sprosty, 227 Wis. 2d 316, 323, 595 N.W.2d 692 (1999). In a case decided just last year, we said that the federal PLRA was the model for the Wisconsin PLRA. State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶38, 236 Wis. 2d 473, 613 N.W.2d 591. Hensley has presented no special justification that compels us to rescind that recent determination. Accordingly, we find the United State Supreme Court's recent decision in Booth persuasive on the issue before us: whether a prisoner needs to exhaust administrative remedies when challenging a condition in the facility where he or she has been incarcerated or detained. 3 Hensley attempts to distinguish Booth from the present case on the ground that he did not file a claim in federal court or under 42 U.S.C. § 1983, but rather filed under Wis. Stat. § 227.40(1), which allows a challenge to an administrative rule. We find Hensley's distinction lacking because the holding in Booth was not confined to the procedural posture of the specific fact pattern before the court; instead the Booth court discussed the meaning of the word "exhaustion" in the federal PLRA and resolved a split among the federal circuits on that issue. 121 S. Ct. 1819, 1824-25. The meaning of the word "exhaustion" in the Wisconsin PLRA is similarly at issue in the present case. 7 No. 00-0076 when the "prison's process simply cannot satisfy the inmate's sole demand, the odds of keeping the matter out of court are slim." the Id. at 1823. phrase federal Therefore, the Supreme Court focused on "administrative PLRA which is the remedies . . . available" same remedies" in Wisconsin's PLRA. as Id. "available in the administrative To resolve the issue raised by Booth, the Supreme Court looked to the context of this phrase and the statutory history of the federal PLRA. Both points are instructive Id. at 1824. in the present case point, the context regarding of Wisconsin's PLRA. ¶11 On the first the word "exhausted," the Supreme Court noted that "[w]hile the modifier 'available' action requires complained the possibility of . . . , the decidedly procedural emphasis. of some word relief for 'exhausted' has the a It makes sense only in referring to the procedural means, not the particular relief ordered." Id. We adopt the Supreme Court's interpretation of "exhausted" for the Wisconsin PLRA. The word "exhausted" in Wisconsin's PLRA refers to the procedural means, not the specific relief Hensley requested. ¶12 On the second point, the statutory history of the federal PLRA, the Supreme Court observed an earlier version gave a court discretion 'such . . . remedies remedies were "to as 'plain, § 1997e(a)(1994 ed.)." phrase referring to require are "plain, state available,' speedy, Id. a and inmate but to only effective.' exhaust if 42 those U.S.C. However, Congress eliminated the speedy, 8 and effective" remedies. No. Id. at 1825. Court In light of this deletion by Congress, the Supreme asserted exhaustion that clearly "we think enough, that regardless through administrative procedures."4 the 00-0076 Wisconsin PLRA Because Wisconsin's language regarding never had does not exhaustion, of the has mandated relief offered Id. at 1825. any PLRA Congress it such In contrast, contingent contain follows any that phrase. contingent the PLRA eliminated any common law futility exception in the context of prisoner litigation that may have existed prior to its passage and mandated exhaustion regardless of the relief sought by the prisoner. ¶13 But the court of appeals found a futility exception to the exhaustion requirement in Wisconsin's PLRA as asserted by Hensley. Although neither the court of appeals nor Hensley highlight any ambiguity within the statute that enables them to reach beyond its plain language for extrinsic evidence, both cite State ex. rel. Smith v. McCaughtry, 222 Wis. 2d 68, 72, 586 N.W.2d 63 (Ct. App. 1998), as authority for a futility exception to the exhaustion requirement in the PLRA. of appeals stated that "[f]ailure to In Smith, the court plead exhaustion of remedies, where they are not shown to be futile, is fatal to a complaint." Id. In support, the Smith court cited State ex. 4 As noted previously, the Supreme Court also explained that it had granted certiorari to address conflict among the federal circuits on the issue of exhaustion, and in the process, overruled Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998) and Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997), which are relied on by Hensley. Booth v. Churner, 121 S.Ct. at 1822. 9 No. 00-0076 rel. Braun v. Krenke, 146 Wis. 2d 31, 39, 429 N.W.2d 114 (Ct. App. 1988). Braun, however, was decided prior to the passage of both Wisconsin's PLRA and the federal PLRA. See Cramer, 2000 WI 86, ¶38 (recounting the history and passage of the PLRA). It did not confront the plain unambiguous language present in the PLRA. It follows, then, that this sentence in Smith regarding exhaustion of remedies does not create a futility exception to the exhaustion requirement because it relied on Braun, which was superseded by the legislature's subsequent passage of the PLRA. To the same vein, the court of appeals' reliance on Cravatt, 399 F. Supp. 956, and Green, 442 F. Supp. 1047, is misplaced both cases were decided prior to the passage of Wisconsin's PLRA and therefore did not confront the plain unambiguous language at bar in the PLRA. ¶14 Hensley, however, argues that the PLRA is inapplicable here because it applies to the conditions of confinement in a particular institution. In contrast, he contends, his challenge is statewide and constitutionally based. And "[n]othing in the language of the statute or the pertinent administrative code provisions expressly requires exhaustion when the scope of the challenge is state-wide, and constitutionally based." To be sure, the DOC administrative rules Hensley challenged applied to all correctional facilities under the ambit of the DOC, not just the Columbia Correctional Institution. Nevertheless, Hensley's argument makes a distinction without a difference. The PLRA refers to challenges made "with respect to the prison or jail conditions in the facility in 10 which he or she has been No. incarcerated, imprisoned § 801.02(7)(b). or Wis. detained." 00-0076 Stat. The plain language of the PLRA, then, does not make the distinction that Hensley presses.5 That is, so long as the conditions at issue relate to the institution in which the prisoner is incarcerated, the PLRA applies. It is irrelevant whether those conditions relate to other institutions as well. ¶15 the DOC Finally, Hensley contends that only the courts, not administrative staff, have the rules and procedures unconstitutional. power to declare the According to Hensley, the alleged inability of the DOC to declare its own rules and procedures unconstitutional renders the exhaustion requirement superfluous. As previously discussed, we reject this argument in light of the Supreme Court's interpretation of "exhausted" in the substantially similar federal PLRA statute. 5 Hensley attempts to buttress his argument on this point by comparing the PLRA with Wis. Stat. § 801.02(7) (1995-96). Hensley notes that in creating the PLRA in 1997, the legislature changed the exhaustion requirement from applying to actions involving DOC personnel to actions involving "the prison or jail conditions in the facility in which he or she is or has been incarcerated." Wis. Stat. § 801.02(7)(b)(1997-98). Nevertheless, Hensley's argument is unpersuasive for two reasons. First, as we observed in Cramer, the PLRA as passed in 1997 was directed at curtailing "frivolous prisoner lawsuits related to prison or jail conditions." 2000 WI 86, ¶38 (citing the fiscal estimate LRB 4463/1, 1997 AB 688). Thus, the PLRA is substantively different than Wis. Stat. § 801.02(7) (1995-96), not just a later variation of that statute. Second, the fact that the legislature intended to ground challenges to a specific institution does not imply that the regulation being challenged has to be unique to that institution. As noted above, there is no evidence in the plain language of the statute of such legislative intent. 11 No. ¶16 00-0076 Moreover, we find that Hensley's argument falls short because the exhaustion requirement does not prohibit prisoners from pursuing instead, it completed constitutional creates before circuit court. a a challenges preliminary prisoner can against procedure mount such the that DOC; be challenge a must in As the seventh circuit observed in interpreting the analogous federal PLRA, "[s]ection 1997e [the federal PLRA] would not be worth much if prisoners could evade it simply by asking for relief that the administrative process is unable to provide. An administrative claim may help to narrow a dispute or avoid the need for litigation." Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 537 (7th Cir. 1999). Hensley would disrupt the sweeping simplicity of the PLRA in order to get into circuit court sooner. requirement By introducing this exception to the exhaustion into legislature's Wisconsin's intent and PLRA, Hensley dramatically would increase subvert the number the of prospective litigants as well as associated costs which we have previously noted the PLRA was intended to reduce in order to have his first go before a circuit court rather than a DOC administrator. See Cramer, 2000 WI 86, ¶39 (noting that the PLRA "illustrates that the legislature intended to address the costly problems caused by prisoner litigation more expansively than the federal law). "What's the harm process turns out?" in As Judge Easterbrook queried in Perez: waiting to see 182 F.3d at 537. how the administrative On that same thread, at oral argument, Justice Bablitch asked Hensley's counsel, "as a practical matter, why does Mr. 12 Hensley want to avoid the No. administrative process?" Hensley's response was 00-0076 essentially that he wanted "to stop this deprivation before it got started." Thus, the crux of Hensley's argument, repeated throughout his brief and again at oral argument, is that the administrative process cannot grant him the relief he requested. But see Booth, 121 S.Ct. at 1823 (federal PLRA "requires a prisoner to exhaust the grievance procedures offered, whether or not the possible responses demands"). cover the specific relief the prisoner He believes that an administrative law judge, in contrast to a circuit court judge, would not have stopped the implementation of the regulations at issue. In short, he rests on his unsupported assumption that the administrative process would be futile. know, how argument the But Hensley cannot know, anymore than we can administrative against the process exhaustion will turn requirement, sounding in policy rather than law. out. then, His is one However, the legislature has already made that policy decision in passing the PLRA and it is the adjudicative role of the courts to apply the plain unambiguous language of the PLRA to the case at hand. III ¶17 court Turning of to appeals' the second holding that issue, which is whether Wis. Stat. § 227.40(1), the a declaratory judgment statute, trumps the PLRA in this context was contrary to rules of statutory construction, we begin with the arguments of Hensley and the State. Hensley maintains that § 227.40(1) is more specific than the PLRA in "terms of the form of relief requested." Hensley 13 further contends that the No. 00-0076 legislature was aware of this declaratory judgment statute when it passed the PLRA in 1997 and would have made it expressly subject to the PLRA if that was its intention. argues that statutes the canon mandates Finally, Hensley requiring harmonization facial constitutional that of conflicting challenges to statewide rules are exempt from the exhaustion requirement. ¶18 The State counters that Wisconsin PLRA is more specific than the declaratory judgment statute and, therefore, under the rule of statutory construction that the more specific statute controls over the more general, is controlling. Furthermore, the State asserts that because the PLRA was enacted later than § 227.40(1), it should control. Finally, the State maintains that the PLRA and the declaratory judgment statute could be harmonized because the PLRA only adds an additional pleading requirement. ¶19 It is well-settled "that where two conflicting statutes apply to the same subject, the more specific controls." Jones v. State, 226 Wis. 2d 565, 576, 594 N.W.2d 738 (1999). Importantly, "conflicts between different statutes, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed." Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 553, 150 N.W.2d 137 (1967). "must be purpose." ¶20 It therefore follows that the statutes in question construed in a manner that serves each statute's Jones, 226 Wis. 2d at 576. Hensley sought declaratory judgment on the validity of administrative rules; such actions 14 are typically governed by No. Wis. Stat. § 806.04, which provides the general 00-0076 rules for declaratory relief, and Wis. Stat. § 227.40, which provides the procedures for contesting the validity of administrative rules. In particular, Hensley relies on § 227.40(1), which states that a declaratory plaintiff judgment has first may be rendered requested the "whether agency to or the upon pass not the validity of the rule." According to Hensley, a conflict exists between in this language mandates that a remedies § 227.40(1) prisoner exhaust prior to seeking relief and his in or the her circuit PLRA, which administrative court. Hensley argues that this language in § 227.40(1) trumps the exhaustion requirement in the PLRA. He asserts that the PLRA is not a more specific statute in terms of the form of the relief requested, and therefore, it should not control over § 227.40(1). ¶21 We reject Hensley's argument. The rule of statutory construction that a more specific statute controls over a more general statute is not measured by the relief requested, but by the subject matter in question. See Sigma Tau Gamma Fraternity House v. City of Menomonie, 93 Wis. 2d 392, 402, 288 N.W.2d 85 (1980). and To be sure, there is a slight overlap between the PLRA § 227.40(1) in that both relate to bringing causes of actions. However, the PLRA is more specific than § 227.40(1) in that is it targeted at challenges to "conditions in the facility" while § 227.40(1) broadly allows judicial review of any administrative prison conditions promulgated by "rule." while all The PLRA, § 227.40(1) administrative 15 then, is encompasses agencies in confined all to rules Wisconsin. No. 00-0076 Therefore, the breadth of § 227.40(1) is much greater than the PLRA. made That the PLRA trumps § 227.40(1) where challenges are to a condition in the facility where a prisoner is incarcerated is bolstered by the fact that the PLRA was passed later in time than § 227.40(1).6 See Martineau v. State Conservation Comm'n, 46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970) (ruling that a specific statute controls over a general statute is especially true when the specific statute is enacted after the general statute). a condition in the Accordingly, where a prisoner challenges facility in which he or she has been incarcerated, the PLRA controls. IV ¶22 statute, In sum, we rule that pursuant to the plain text of the there Wisconsin's PLRA. is no common law futility exception to Moreover, we find that the recently passed PLRA, which is specifically targeted at requiring prisoners to exhaust their administrative remedies before bringing an action to challenge incarcerated a condition or at detained, the institutions controls over the where much they are broader § 227.40(1), which in some cases allows an individual to obtain declaratory judgment on administrative rules regardless of whether he or she has exhausted all administrative remedies. Accordingly, we find that the PLRA requires Hensley to exhaust 6 The PLRA was first passed in 1997, while Wis. Stat. § 227.40(1) was passed in 1955. See Cramer, 2000 WI 86, ¶38; § 13, ch. 221, Laws of 1955; Wis. Stat. § 227.05 (1955). 16 No. 00-0076 his administrative remedies before bringing an action in ciruit court. By the Court. The decision reversed. 17 of the court of appeals is 00-0076.awb ¶23 sought ANN WALSH BRADLEY, J. (dissenting). to constitutionally administrative rules. had merit. implementation the majority challenge of the facial validity of Apparently, his First Amendment challenge As constitutional challenge Spriggie Hensley has opinion been an emergency explains, rendered moot administrative the very rule challenged by Hensley.7 rule that by the suspending This emergency suspension was the result of a class action lawsuit filed in federal court, challenging the same administrative rule on First Amendment grounds.8 ¶24 Having asserted challenge, this case now a only meritorious involves the constitutional question of what procedural route a prisoner must take in a limited circumstance when a prisoner raises a constitutional challenge to the facial validity of an administrative rule. I conclude that Wis. Stat. § 227.40(1) is controlling because it more specifically applies to a facial challenge to an administrative rule. interplay between Department of conclusion to the PLRA's Corrections' the contrary exhaustion (DOC) would Because of the requirements complaint lead to an and procedure, absurd the a result. Accordingly, I respectfully dissent. ¶25 This provisions. case involves the collision of two statutory On the one hand, the PLRA requires exhaustion of 7 See Wis. Admin. Reg. No. 543, 4 (Mar. 2001). 8 See Aiello v. Litscher, 104 F. Supp. 2d 1068 (W.D. Wis. 2000). 1 00-0076.awb administrative remedies prior to bringing an action in circuit court regarding "prison or On other § 801.02(7)(b). states that "the the exclusive jail conditions." hand, means of Wis. Wis. Stat. judicial Stat. § 227.40(1) review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County." Wis. Stat. § 227.40(1) (emphasis added). Under that statute, exhaustion of administrative remedies is expressly not required. ¶26 Id. There is an inevitable overlap between these two statutes where a prisoner seeks to challenge the facial validity of a rule relating to prison or jail conditions, as in the case at hand. I agree with the majority that we are to determine which statute is more specific. However, I disagree with the majority as to which aspect of the statutes we are to examine to determine that specificity: the specificity in a prisoner's challenge to a condition of confinement under the PLRA or the specificity in a challenge to the facial validity of a rule under § 227.40(1). ¶27 The majority concludes that Wisconsin's PLRA trumps Wis. Stat. § 227.40(1) on the grounds that the PLRA is more specific because conditions, it whereas is confined § 227.40(1) to challenges encompasses promulgated by a Wisconsin administrative agency. majority correctly notes that Wis. Stat. to prison all rules While the § 227.40(1) broadly applies to any administrative agency's rules, it also fails to note that it quite specifically applies to a challenge to the 2 00-0076.awb facial validity of a rule. Likewise, while the majority accurately explains that the PLRA applies to any action by a prisoner relating to the conditions of confinement, it ignores that the PLRA challenges: quite generally facial challenges to the challenges applies challenges application relating to to to a broad administrative of administrative or action conduct array of rules, rules, DOC of and personnel, unrelated to administrative rules. ¶28 Wis. I believe that we should focus on the application of Stat. validity § 227.40(1) of a rule. to facial Ultimately, challenges in addressing resolving the the conflict between the PLRA and § 227.40(1) in this case, we are asked to determine which procedure is to be employed in a specific type of challenge. As a result, I believe the nature of that challenge, rather than the substance of the challenge, should be determinative. ¶29 I am compelled in this conclusion because a conclusion to the contrary would lead to an absurd result. and harmonizing statutes, we are to which would lead to an absurd result. avoid In interpreting an interpretation Peters v. Menard, Inc., 224 Wis. 2d 174, 189, 589 N.W.2d 395 (1999). ¶30 Wisconsin Admin. Code ch. DOC 310, which sets forth the inmate complaint procedure that the majority would have an inmate exhaust, requires the filing of a complaint within 14 days of "the occurrence giving rise 3 to the complaint." Wis. 00-0076.awb Admin. Code § DOC 310.09(3) (Apr. 1998). 9 Presumably, where an inmate seeks to challenge an administrative rule on its face, rather than as applied, "the occurrence giving rise to complaint" is the promulgation of the challenged rule. there is no administrative remedy as a matter of the Thus, right to address a facial challenge to a DOC rule after the initial two weeks of the rule's existence. Such a limitation to a constitutional facial challenge is absurd. ¶31 As a result of the majority's decision, a prisoner has only two weeks from the date that the rule is enacted to file a complaint rule. facially Such enactment a be prisoners. challenging time given the limit would with constitutionality require relative lightning the notice of the speed that of to the Such speed is often inconsistent with the realities of prison administration. ¶32 Likewise, inconsistent with reality is the requirement that a prisoner challenge the facial validity of a rule within two weeks of its enactment even if a prisoner is not placed in the prison system until years after the enactment. As a result of the majority's decision, absent the good graces of the prison administration to allow for a late filing, there is no avenue, whatsoever, for a person imprisoned more than two weeks after the enactment of the rule to raise a constitutional challenge addressing the facial validity 9 of a rule. This means that Wisconsin Admin. Code § DOC 310.09(3) also provides that an institution examiner "may accept a late complaint for good cause." Wis. Admin. Code § DOC 310.09(3) (Apr. 1998). 4 00-0076.awb meritorious challenges to unconstitutional rules can be forever foreclosed if raised outside the two-week window of opportunity. I do not believe the legislature intended such an absurd result. ¶33 While the inmate complaint system is capable of addressing an "as applied" challenge to an administrative rule, to the extent that the DOC complaint procedure forecloses all facial challenges that a prisoner seeks to bring after the initial 14 days of the rule's existence, the system is wholly inadequate to § 227.40(1) validity of address such specifically an a challenge. applies administrative to rule Because facial and Wis. challenges because it Stat. to the does not require exhaustion and therefore does not suffer from the same infirmities as the procedure under the PLRA, I conclude that it should be controlling. ¶34 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 5

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