Michael D. Morris v. Jon E. Litscher

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.
July 30, 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. 2019AP601 Cir. Ct. No. 2018CV1922

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. MICHAEL D. MORRIS,

PETITIONER-APPELLANT,

V.

JON E. LITSCHER,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, 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. 2019AP601

¶1 PER CURIAM. Michael Morris appeals an order that affirmed a
decision by the secretary of the Department of Corrections on an inmate complaint.
We affirm.

¶2 Morris submitted a complaint to the inmate complaint review system.
It alleged that the institution’s business office denied his request for a legal loan in
connection with two cases, and that the business office denied the request because
it believed that the request was controlled by a department policy that caps legal
loans at $50 for inmates who have not repaid prior legal loans. Morris argued that
the policy is not enforceable because it should have been promulgated as an
administrative rule. As relief Morris requested the additional $50 of legal loan
authorization.

¶3 The examiner recommended dismissal of the complaint. The decision
quoted from the memo sent to Morris by the business office:

Pursuant to DAI Policy 309 51 01, section III(d),
annual legal loans will be capped at $50 for inmates who
have not fully repaid any prior year’s legal loans except
under extraordinary circumstances. Since you have an
outstanding legal loan balance from previous years, your
legal loan limit cannot exceed $50 total with the DOC for the
calendar year. Neither case is on[e] of the 14 exceptions
allowed to exceed the $50 limit. For this reason, your
requests for legal loan extensions have been denied.

You have only spent $16.37 so far this calendar year
using legal loan funds. It is your responsibility to prioritize
your spending to meet your litigation needs. E-filing
documents to the [federal district court for the Western
District of Wisconsin] i[s] free and a great way to save
money.

¶4 The examiner found that the business office “explained the reason for
denial” and the examiner recommended dismissal of Morris’s complaint because
“the denial is supported by DAI policy.”

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¶5 Morris appealed to the corrections complaint examiner, who also
recommended dismissal of the complaint. As explanation, the examiner wrote: “As
noted[,] the denial is in accordance with policy.”

¶6 Morris then appealed to the department secretary, who decided as
follows:

The attached Corrections Complaint Examiner’s
recommendation to DISMISS this appeal is accepted as the
decision of the Secretary. The complainant was denied a
legal loan extension because he had only spent $16.37 of the
$50 available to him this calendar year making his request
premature. The complainant was advised to prioritize his
spending to meet his litigation needs. For example, E-filing
documents to the USWD court is free and a great way to save
money rather than spending limited funds on postage.

¶7 Unlike the previous decision makers, the secretary did not expressly
refer to the department policy that Morris argued was an unenforceable rule.

¶8 Morris filed a petition for a writ of certiorari in circuit court. That
court affirmed the secretary’s decision.

¶9 On certiorari review, we review the decision of the agency, not the
circuit court. See State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶34, 353 Wis.
2d 307, 845 N.W.2d 373. Here, the decision by the secretary relied on the idea that
Morris’s request for the additional legal loan authorization was premature. The
secretary may also have relied on the department policy referred to in the examiners’
earlier decisions, because the secretary stated that he was accepting the decision of
the corrections complaint examiner. However, that is not entirely clear.

¶10 Morris argues on appeal that the $50 cap does not apply to him
because: it is an unpromulgated rule; he does not have unpaid balances; he meets
exceptions to the policy; and he is being treated differently under the policy than

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No. 2019AP601

another inmate was. We resolve this appeal based on the prematurity issue, which
is dispositive.

¶11 On this topic, Morris’s opening brief makes only a short argument at
the very end, after the certifications. Morris asserts that the business office was
incorrect as to the amount of money that he had used. He asserts that instead of the
$16.37 figure that the business office said he spent, he had actually spent just under
$40, bringing him closer to the $50 cap.

¶12 The certiorari record from the department does not include account
information, other than what is described in the memo from the business office. In
support of Morris’s assertion that the business office was incorrect as to the amount
he had used, Morris attached to his certiorari petition an exhibit that is a copy of an
account record. He relies on that exhibit on appeal.

¶13 Normally, a court reviewing an agency decision in certiorari is
confined to the record before the agency. Our review is limited to the record brought
up by the writ. State ex rel. Richards v. Leik, 175 Wis. 2d 446, 455, 499 N.W.2d
276 (Ct. App. 1993).

¶14 As a result, the party seeking certiorari review should develop the
factual record while the matter is before the agency. Here, however, the fact that
Morris is disputing was not relied on by any decision maker in the agency process
until the last level, when the secretary introduced the concept of prematurity and
relied on the amount stated in the business office memo.

¶15 Although the business office memo stated the amount it believed
Morris had spent, that office did not rely on that amount, or refer to the timing of
his request, in making its decision. That office did not deny the request because it

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was premature. Instead, the business office appears to have stated the amount spent
so as to reassure Morris that he had adequate funds remaining, and to encourage him
to use those funds efficiently by using electronic filing. Because the amount that
Morris had spent was not a basis for the business office decision, or for the examiner
decisions on his inmate complaint, Morris would not have had any reason to provide
the examiners or the secretary with information disputing the business office’s
statement about the amount he had spent.

¶16 It is not clear whether Morris asked the circuit court for permission to
add his account exhibit to the record. However, for purposes of this appeal, we
assume without deciding that the exhibit is properly considered in judicial review
of the secretary’s decision.

¶17 Morris relies on exhibit 8 attached to his certiorari petition. That
document is a trust account “weekly statement.” As to legal loans, we understand
the statement to show the balances that are outstanding on the loans, for each year
that a loan was given. In other words, the “balance” column of the exhibit shows
the amount that was loaned to Morris in that year, and that he has not paid back. As
to the loan for the relevant calendar year, 2018, it shows that so far Morris had been
loaned $36.75, which is considerably closer to $50 than the $16.37 figure stated by
the business office.

¶18 However, Morris’s exhibit fails to rebut the business office memo
because the exhibit is dated several weeks after the memo. Morris’s inmate
complaint was received on March 29, 2018. It alleged that the denial of his loan
request occurred on March 26, 2018, and that is consistent with the date on the
memo. However, Morris’s account exhibit appears to show the balance as of several
weeks later, on May 4, 2018. Obviously, Morris could have made additional draws

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No. 2019AP601

on his legal loan during those several weeks, increasing the balance from when the
business office issued its memo. Therefore, the exhibit does not refute the memo.

¶19 It appears that Morris may have chosen to send the court the account
information for that date because that weekly statement included the date on which
the secretary received Morris’s appeal, May 2, 2018. However, the date of the
secretary’s review is not significant. The secretary was reviewing an inmate
complaint filed to address a specific action by the business office. That action
occurred in late March 2018, and the secretary determined that, as of that date,
Morris’s loan request was premature. Whether it would have been premature at
some later date was not an issue before the secretary, and is not before us now in
this judicial review.

¶20 Morris does not make any other argument to dispute the secretary’s
decision that Morris’s loan request was premature. Therefore, because we conclude
that Morris’s one argument against that basis for the decision is not well founded,
we affirm.

By the Court.—Order affirmed.

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

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