Patrick H. Schober v. Brian Hayes

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 10, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2064 Cir. Ct. No. 2018CV868

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. PATRICK H. SCHOBER,

PETITIONER-APPELLANT,

V.

BRIAN HAYES, ADMINISTRATOR, WISCONSIN DEPARTMENT OF
ADMINISTRATION DIVISION OF HEARINGS AND APPEALS,

RESPONDENT-RESPONDENT.

APPEAL from orders of the circuit court for Outagamie County:
JOHN A. DES JARDINS, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2064

¶1 PER CURIAM. Patrick Schober’s extended supervision was
revoked following a hearing before an administrative law judge (ALJ), and he was
ordered reconfined. On appeal from the ALJ’s revocation and reconfinement
determinations, the administrator of the Wisconsin Department of Administration
Division of Hearings and Appeals (DHA) concluded revocation was supported by
the record and then ordered the amount of reconfinement time increased to the
maximum allowed.

¶2 Schober filed a petition for a writ of certiorari in the circuit court.
The court dismissed his petition on the merits without issuing the writ or otherwise
ordering a return of the record, and it also denied Schober’s motion for
reconsideration. The administrator acknowledges the circuit court’s dismissal of
the petition on the merits without issuing the writ or ordering a return of the record
was an apparent violation of State ex rel. Kaufman v. Karlen, 2005 WI App 14,
278 Wis. 2d 332, 691 N.W.2d 879 (2004). The administrator nonetheless argues
that the orders should be affirmed because Schober’s petition failed to state a
claim upon which relief could be granted.

¶3 We conclude Schober’s petition stated two claims that, if proven,
would entitle Schober to certiorari relief. First, Schober alleged that the DHA
administrator improperly discounted the availability and feasibility of his proposed
alternative to revocation by failing to consider his posttraumatic stress disorder
(PTSD) diagnosis. Second, he alleged the administrator unlawfully retaliated
against him for appealing the ALJ’s determination. We reverse the dismissal of
his petition in part and remand with directions for the circuit court to issue the writ

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of certiorari and set a briefing schedule and deadlines for the production of the
record on the two viable issues. The orders are affirmed in all other respects.1

BACKGROUND2

¶4 Schober was convicted in 2013 of operating a motor vehicle while
intoxicated as a tenth or subsequent offense. In 2014, he was sentenced to four
years and six months of initial confinement, followed by four years and six months
of extended supervision. Schober was released to extended supervision on
March 7, 2016.

¶5 Schober was notified in December 2017 that revocation proceedings
were being initiated based upon several alleged violations of his community
supervision conditions, including his consuming cocaine, marijuana and alcohol,
operating a motor vehicle while under the influence of alcohol, and driving
without a license. A revocation hearing was held before an ALJ in June 2018.

¶6 Schober admitted the allegations in the notice of revocation.
Schober, through his attorney, proposed a formal alternative to revocation—
namely, inpatient treatment at the Wisconsin Resource Center (WRC) to address

1
Because we conclude the circuit court erred in dismissing Schober’s petition on the
merits without ordering a return of the record, we necessarily conclude the court also erred in
denying his subsequent motion for reconsideration. We reverse the order on reconsideration to
the extent necessary for the circuit court to address the potentially viable certiorari claims
recognized herein.
2
The facts in this section are largely drawn from Schober’s petition. Given our standard
of review (which we set forth more fully below), we accept as true the factual allegations in the
petition. See Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d 665,
849 N.W.2d 693.

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his substance abuse issues and his chronic PTSD.3 The ALJ issued a written
decision revoking Schober’s extended supervision and ordering him reconfined for
a period of three years, eleven months, and eight days. The ALJ acknowledged
that Schober was a military veteran who was receiving Social Security benefits as
a result of physical injuries and his PTSD diagnosis, and it found that he could
benefit from programming to address those issues. The ALJ determined, however,
that revocation was appropriate to ensure that Schober was compliant with
treatment programming in a confined setting and because not revoking his
extended supervision would unduly depreciate the seriousness of the violations
and not sufficiently protect the public.

¶7 Schober appealed the ALJ’s determinations to Brian Hayes, the
DHA administrator, pursuant to WIS. ADMIN. CODE § HA 2.05(8).4 The
administrator sustained the ALJ’s determination that Schober’s extended
supervision should be revoked, but he modified the term of reconfinement to the
maximum term of six years, six months and twenty-five days. The administrator’s
stated reasons for the modification were because Schober, when not confined, had
previously failed to appear for substance abuse treatment appointments and
continued to consume controlled substances and drive while under the influence,
and overall he “does not present himself as a man trying to stay sober.” The
administrator stated Schober was a danger to the public for as long as he remained

3
Consistent with WIS. ADMIN. CODE § HA 2.05(6)(h) (Mar. 2017), Schober’s counsel
provided timely notice that Schober would be seeking an alternative to revocation.

All references to the Wisconsin Administrative Code are to the March 2017 version
unless otherwise noted.
4
We will hereinafter refer to Hayes’ decision as “the administrator’s decision” and the
earlier decision as “the ALJ’s decision.”

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No. 2018AP2064

in the community. The administrator did not explicitly address Schober’s PTSD
diagnosis or his request for placement at the WRC as an alternative to revocation.

¶8 Schober filed a petition for a writ of certiorari, requesting that the
circuit court review the ALJ’s and the administrator’s decisions. Schober asserted
the decisions were arbitrary and capricious or otherwise unlawful on the following
grounds: (1) the ALJ and the administrator failed to “properly account for the
mitigating effect” of his chronic PTSD (for which his substance abuse is a
secondary symptom) and overlooked the importance of immediate treatment for
his PTSD, thereby “discount[ing]” his proposed alternative to revocation;
(2) Schober’s probation agent had originally recommended one year of
reconfinement time and was overruled without explanation by an official in the
Division of Community Corrections, who recommended the amount of
reconfinement time ultimately imposed by the ALJ; and (3) the administrator’s
decision to modify the amount of reconfinement time “without explanation and
without consideration of any mitigating factors was vindictive” and taken in
retaliation for Schober’s exercise of his appeal rights from the ALJ’s decision.

¶9 The circuit court declined to issue the writ of certiorari, thereby
denying Schober’s petition without ordering a return of the record. In a
two-sentence order, the court stated: “THIS COURT FINDS the decision of
Administrator Hayes was well reasoned and supported by the record. There are no
grounds for this Court to review that decision.” Schober filed a motion for
reconsideration and a request for judicial substitution, both of which were denied.
In denying Schober’s motion for reconsideration, the court stated it was not
required to order the return of the administrative record before denying Schober’s
petition, and it stated the administrator’s decision was “well-reasoned and

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supported by the exhibits Schober submitted with his Petition.” Schober now
appeals the orders.

DISCUSSION

¶10 This case is, in large part, controlled by Kaufman. There, we held
that “[o]nce a court chooses to consider a prisoner’s petition on the merits, due
process requires the court to base its decision on a complete record of the
proceedings below and on briefs submitted by the parties.” Kaufman, 278
Wis. 2d 332, ¶9. In other words, a petitioner (like Schober in this case) is deprived
of due process when a court denies a petition for a writ of certiorari on the merits
without ordering a return of the record and without providing the petitioner an
opportunity for argument. Id. This is so, at least in part, because “[w]hether the
court had before it all the documents that would have been contained in the return
is unknowable.” Id.

¶11 Although the administrator suggests there was some ambiguity in the
circuit court’s orders regarding the basis for its decision, the administrator
concedes that we might fairly infer that the denial of the petition was based on the
merits of Schober’s claims. This concession is well founded, as the court’s initial
order specifically stated the administrator’s decision was “well reasoned and
supported by the record”—even though the court had declined to issue the writ of
certiorari and order the return of the record.5 The administrator acknowledges this
procedure runs afoul of Kaufman, but he contends that the dismissal was

5
It is unclear whether the circuit court, in referring to “the record,” believed the
materials attached to Schober’s certiorari petition included the entirety of the administrative
record. Regardless, the circuit court would have run afoul of State ex rel. Kaufman v. Karlen, 2005
WI App 14, 278 Wis. 2d 332, 691 N.W.2d 879 (2004).

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No. 2018AP2064

nonetheless appropriate because, unlike in Kaufman, it is evident from the face of
Schober’s petition that there is no legal basis upon which to order relief.

¶12 Under WIS. STAT. § 802.05(4)(b)4. (2017-18), a circuit court may
dismiss a prisoner’s petition for a writ of certiorari without requiring the
respondent to answer if the court determines that the petition fails to state a claim
upon which relief can be granted. “The standard for deciding whether a certiorari
petition is sufficient to order a return is the same standard used to decide whether a
complaint states a claim.” State ex rel. Schatz v. McCaughtry, 2003 WI 80, ¶33,
263 Wis. 2d 83, 664 N.W.2d 596. The circuit court must “construe the petition
liberally and consider dismissal only if it is quite clear that no relief can be had
under any legal theory.” Id. Whether a petition sufficiently states a claim upon
which relief can be granted is a question of law. See Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693.

¶13 Judicial review on certiorari is limited to whether the agency’s
decision was within its jurisdiction, whether the agency acted according to law,
whether its decision was arbitrary or oppressive, and whether the decision was
supported by substantial evidence. State ex rel. Ortega v. McCaughtry, 221
Wis. 2d 376, 385-86, 585 N.W.2d 640 (Ct. App. 1998). Thus, to state a claim
upon which relief could be granted, Schober’s petition must have adequately
alleged a claim that, if proven, would warrant relief on one or more of these bases.
We conclude Schober’s petition adequately stated two such claims.

¶14 First, liberally construed, the petition alleges that the administrator
failed to consider the mitigating effect of Schober’s PTSD diagnosis and therefore
irrationally discounted the possibility of the proposed alternative to revocation,
which would have required Schober to be placed at the WRC for approximately

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No. 2018AP2064

six months to complete the Dual Diagnosis AODA Program.6 Schober attached to
his petition medical records and government documents that had been introduced
at the revocation hearing before the ALJ. These documents substantiated
Schober’s assertion that he suffers from chronic PTSD as a result of his military
service, which has exacerbated his substance abuse problems. He also contends
that other portions of the administrative record are relevant for consideration of
this claim.

¶15 The administrator’s order acknowledged, but summarily rejected,
Schober’s proposed alternative to revocation without mentioning either the nature
of the proposed alternative or the basis for Schober’s proposal—namely, his PTSD
diagnosis. Instead, the administrator merely stated that the record supported the
ALJ’s decision. The DHA administrator exercises his or her discretion when
determining whether revocation is warranted. See State ex rel. Warren v.
Schwarz, 211 Wis. 2d 710, 726, 566 N.W.2d 173 (Ct. App. 1997), aff’d, 219
Wis. 2d 615, 579 N.W.2d 698 (1998). The proper exercise of that discretion
requires the DHA to consider the feasibility of a proposed alternative to
revocation:

[T]he Department must exercise its discretion by at least
considering whether alternatives are available and feasible.
The Department should not be able to circumvent its duty
to consider measures short of revocation by merely setting
forth the reasons favoring revocation.

6
Schober also challenged the ALJ’s decision on this ground. The ALJ’s decision is not
the decision reviewed on certiorari. The administrator’s decision on revocation and
reconfinement following an appeal becomes the final decision of the DHA. See WIS. ADMIN.
CODE § HA 2.05(8), (9). Also for this reason, Schober’s claim that the ALJ’s decision was
arbitrary and capricious was properly dismissed at the pleading stage.

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Van Ermen v. DHSS, 84 Wis. 2d 57, 67, 267 N.W.2d 17 (1978) (quoted with
approval in Warren, 211 Wis. 2d at 725-26); see also WIS. ADMIN. CODE § HA
2.05(6)(h). The administrator’s assertion—i.e., that Schober’s claim fails as a
matter of law because numerous factors favor revocation—eviscerates this
protection. A revocation order is not adequate merely because there is a sufficient
basis for revocation if the administrator has not considered the inmate’s assertion
of a specific alternative to revocation based on particular reasons.7

¶16 The administrator’s alleged failure to sufficiently consider a
proposed alternative to revocation—i.e., his merely acknowledging the general
existence of a proposed alternative without specifically addressing its availability
and feasibility—implicates the third and fourth criteria for certiorari review. See
Warren, 211 Wis. 2d at 724. Schober’s petition therefore adequately stated a
claim reviewable by certiorari—specifically, that the administrator failed to
consider the availability and feasibility of Schober’s specific proposed alternative
to revocation, including by never acknowledging the PTSD diagnosis that formed
the basis for that request. If Schober were to prove that the administrator in fact
did not consider that information when he evaluated the required revocation
factors, Schober may be entitled to relief. Whatever the ultimate merit of
Schober’s claim in this regard, the circuit court erred by rejecting that claim on the
merits without affording Schober the due process required under Kaufman.

7
The administrator does not make any argument that Schober’s claim in this regard
should be dismissed because the administrator’s written decision acknowledged, without further
elaboration, that Schober had requested an alternative to revocation. In any event, the case law
dictates that “consideration” encompasses more than mere acknowledgment that the request had
been made. See Van Ermen v. DHSS, 84 Wis. 2d 57, 67, 267 N.W.2d 17 (1978).

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No. 2018AP2064

¶17 We also conclude Schober has adequately stated a claim for
retaliation by the administrator for Schober exercising his right to appeal the
ALJ’s decision.8 Relevant to this claim, it is undisputed that the administrator
modified the ALJ’s reconfinement determination and imposed the maximum
allowable amount of reconfinement time. Schober’s petition alleges that the
administrator had a retaliatory motive for doing so. As set forth below, if that
retaliatory motive were proven to exist, Schober may be entitled to certiorari
relief.

¶18 The criteria that may be considered in determining a period of
reconfinement are set forth in WIS. ADMIN. CODE § HA 2.05(6)(f)1.-4., and they
include the nature and severity of the original offense, the offender’s behavior
subsequent to the conviction, and other typical sentencing factors. Retaliation
against a person for exercising his or her lawful appeal rights is an improper
consideration. “To punish a person because he has done what the law plainly
allows him to do is a due process violation ‘of the most basic sort.’” United States
v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S.
357, 363 (1978)); see also State v. Church, 2003 WI 74, ¶¶28-55, 262 Wis. 2d
678, 665 N.W.2d 141. A claim that a sentencing authority had a retaliatory motive
for imposing a sentence, if proven, would render the sentence contrary to law and

Schober also contends that the administrator’s decision increasing the amount of
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reconfinement time to the maximum was arbitrary and capricious because the administrator cited
only the same reasons as the ALJ in ordering approximately four years’ reconfinement. We agree
with the administrator that any such claim is not cognizable under the circumstances here. As the
administrator notes, Schober cites no authority for the proposition that the DHA administrator is
required to explain his or her refusal to adopt a sentencing recommendation or his or her decision
to depart from an earlier administrative determination. However, by refusing to offer any
explanation for an increase in the amount of reconfinement time ordered, the administrator risks a
subsequent certiorari claim for retaliation.

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therefore actionable under the second certiorari prong. Accordingly, Schober’s
petition sufficiently states a retaliation claim.

¶19 In sum, we conclude Schober’s petition adequately states two
claims. The first is that the administrator erred by failing to consider the
availability and feasibility of Schober’s proposed alternative to revocation. The
second is that the administrator unlawfully retaliated against Schober for
exercising his right to appeal the ALJ’s decision. Both of these claims are
reviewable by certiorari and, if proven, would entitle Schober to relief. Again, our
decision is indifferent to the merit of either claim. We reverse in part the order
dismissing Schober’s petition and remand with directions for the circuit court to
issue the writ of certiorari, order the return of the record, and set a briefing
schedule on the two viable issues. The orders are affirmed in all other respects.

By the Court.—Orders affirmed in part; reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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