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State ex rel. Markovic v. Litscher

Court of Appeals of Wisconsin, District IV

June 21, 2018

State of Wisconsin ex rel. Drazen Markovic, Petitioner-Respondent,
v.
Jon E. Litscher, Respondent-Appellant.

         Recommended for publication in the official reports.

          APPEAL from an order of the circuit court for Dane County No. 2017CV481: FRANK D. REMINGTON, Judge.

          Before Lundsten, P.J., Blanchard and Kloppenburg, JJ.

          KLOPPENBURG, J.

         ¶1 Wisconsin Department of Corrections Secretary Jon Litscher dismissed Drazen Markovic's inmate complaint, which alleged that DOC acted without authority when it took money out of Markovic's prison account beginning in 2016.[1] DOC took the money to satisfy unpaid restitution ordered in a 1995 judgment that imposed a sentence that Markovic completed in 2002. Markovic petitioned the circuit court for a writ of certiorari. The circuit court reversed DOC's decision, concluding that DOC lost its authority to take money out of Markovic's prison account to satisfy the unpaid restitution after Markovic completed the sentence imposed in the judgment that ordered the restitution. As a remedy, the court ordered DOC to return to Markovic the money it took out of his prison account.

         ¶2 On appeal, DOC raises two issues: (1) whether DOC acted within its authority when it took money out of Markovic's prison account beginning in 2016 to satisfy unpaid restitution ordered in a judgment that imposed a sentence that Markovic completed in 2002; and (2) if DOC acted without authority, whether the circuit court in this certiorari action lacked authority to order DOC to return to Markovic the money it improperly took out of his prison account.

         ¶3 On the first issue, DOC argues that both Wis.Stat. §§ 303.01(8)(b) and 301.32(1) (2015-16) "independently provide DOC with authority to collect restitution" ordered in a judgment that imposes a sentence that a defendant has completed.[2] These statutes govern DOC's authority to use distinct sources of inmate money for distinct purposes. Pertinent here, Wis.Stat. § 303.01(8)(b) governs the authority of DOC to "distribute [an inmate's] earnings for ... obligations ... which have been reduced to judgment that may be satisfied according to law"; and Wis.Stat. § 301.32(1) governs the authority of DOC to use money that has been "delivered" to a inmate's prison account "for ... the benefit of the prisoner." As we will explain, we conclude that:

(1) DOC was not authorized under § 303.01(8)(b) to take Markovic's earnings to satisfy unpaid restitution ordered in a judgment that imposed a sentence that he had completed because: the restitution ordered was a condition of parole; conditions of parole do not survive the completion of a sentence; and, therefore, the restitution ordered was not an "obligation" that "may be satisfied according to law" within the meaning of the statute after Markovic completed the sentence; and DOC points to no law to the contrary;
(2) DOC was authorized under § 301.32(1) to take money delivered to Markovic's prison account to satisfy unpaid restitution ordered in the judgment that imposed the sentence that he had completed, because using that money to pay restitution to the victim of his crime is "for [his] benefit" within the meaning of the statute, regardless of whether the restitution ordered in the judgment is directly enforceable against him.

         ¶4 On the second issue, we conclude that the circuit court erred in ordering DOC to return any money it improperly took from Markovic's prison earnings because, under controlling case law, the payment of money damages is not available as a remedy in certiorari actions, and Markovic fails to point to any exception to this rule. Accordingly, we affirm in part and reverse in part.

         BACKGROUND

         ¶5 Markovic was convicted in 1995 of theft by fraud. The sentencing court entered a judgment of conviction imposing a sentence comprising seven years' imprisonment along with $4, 214.20 in restitution as a "condition[] of sentence[]." Markovic completed the seven-year sentence in the 1995 case in December 2002 without ever serving parole. However, he remained in prison on another sentence in a different case.

         ¶6 Markovic was still in prison on the other sentence when, in November 2016, fourteen years after he had completed his sentence in the 1995 case, DOC began taking money out of his prison account to satisfy the unpaid restitution ordered in the 1995 case. Markovic's prison account includes his prison earnings and money delivered to DOC for the benefit of Markovic from outside the prison.

         ¶7 Markovic filed a complaint in the DOC inmate complaint review system, alleging that DOC did not have authority to take money out of his prison account to satisfy the unpaid restitution ordered relating to his 1995 sentence, which he completed in 2002. The Institution Complaint Examiner recommended that the complaint be dismissed, noting that DOC would continue to take money out of Markovic's account so long as DOC's internal database showed an unpaid restitution obligation. The warden accepted the examiner's recommendation and dismissed Markovic's complaint. Markovic then appealed to the DOC secretary, who also accepted the examiner's recommendation and dismissed the appeal.

         ¶8 Markovic petitioned for certiorari review.[3] The circuit court reversed, concluding that DOC lost authority to take money out of Markovic's prison account to satisfy the unpaid restitution after he completed his 1995 sentence. As a remedy, the court ordered DOC to return to Markovic the money it took. The State appeals.

         DISCUSSION

         ¶9 On certiorari we review the agency decision, not the decision of the circuit court. State ex rel. Curtis v. Litscher, 2002 WI.App. 172, ¶10, 256 Wis.2d 787, 650 N.W.2d 43. We are limited to the following four inquiries:

(1) whether [DOC] acted within the bounds of its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable, and represented its will, and not its judgment; and (4) whether the evidence was sufficient that [DOC] might reasonably make the determination that it did.

State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶35, 353 Wis.2d 307, 845 N.W.2d 373 (quoted source omitted). The two inquiries on which we base our decision, whether DOC acted within its jurisdiction and according to law, are questions of law that we review de novo. State ex rel. Sprewell v. McCaughtry, 226 Wis.2d 389, 393, 595 N.W.2d 39 (Ct. App. 1999).

         ¶10 To repeat, this appeal requires that we answer the following two questions: (1) whether DOC acted within its authority, and therefore within its jurisdiction and according to law, when it took money out of Markovic's prison account beginning in 2016 to satisfy unpaid restitution ordered in the 1995 judgment that imposed a sentence that he completed in 2002; and (2) if not, whether the circuit court in this certiorari action lacked authority to order DOC to return to Markovic the money it improperly took out of his prison account. We address each question in turn.

         I.Whether DOC Acted Within its Jurisdiction and ...


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