State ex rel. Wis. Dep’t of Corrs., Div. of Cmty. Corrs. v. Hayes, 2023AP1140, affirming a per curiam court of appeals decision, case activity (including briefs)
The Division of Hearings and Appeals decided not to revoke Sellers’s probation. DOC, on writ of certiorari to the circuit court, prevailed, and DHA appealed. On appeal, DHA and Sellers asked the COA to affirm DHA’s original decision not to revoke Sellers’s probation. The COA agreed with DHA and Sellers, reversing the circuit court’s order and affirming DHA’s decision not to revoke Sellers’s probation. Making no law, SCOW affirms the court of appeals’ decision.
As we described in our post on SCOW’s grant, Sellers was on probation for a drug conviction. DOC attempted to revoke Sellers, alleging five violations of the terms of his probation, including sexual assault. At the revocation hearing, DOC did not call the alleged victim, but presented testimony that she could not “100% ID her assailant.” DNA from the sexual assault kit was consistent with Sellers, but also “could also match one in every 278 African Americans.” Sellers’s counsel asked the ALJ to take judicial notice that, based on census data, there would be 389 African Americans in Milwaukee who would also match the DNA profile. The remaining evidence also suffered from identification issues and Sellers denied the allegations. The ALJ revoked Sellers, and he appealed to DHA. DHA reversed the revocation decision on the basis that DOC presented no non-hearsay account of the alleged victim’s allegations, which violated Sellers’s right to confrontation.
The standard of review requires reviewing courts to review DHA’s decision, deferring to DHA’s determinations. Appellate review is limited to (1) whether the administrator kept within his jurisdiction; (2) whether the decision was according to law; (3) whether the administrator’s action was arbitrary, oppressive or unreasonable and represented his will and not his judgment; and (4) whether the evidence was such that the administrator might reasonably make the order or determination in question. State ex rel. Nudo Holdings, LLC v. Bd. of Rev. for City of Kenosha, 2022 WI 17, ¶10, 401 Wis. 2d 27, 972 N.W.2d 544.
On the main issue, SCOW agrees with the COA that it was not unreasonable, based on the evidence in the record, for DHA to conclude that the alleged victim’s testimony was necessary for DOC to prove all the elements of the alleged probation violations (i.e., that the decision is supported by substantial evidence such that the administrator might reasonably have made the determination in question). (¶¶20-28).
DOC also argues that DHA erred by excluding hearsay testimony because good cause existed in the record to overcome Sellers’s due process right to confront adverse witnesses. It contends that the third standard of review–whether DHA’s action was arbitrary, oppressive or unreasonable and represented its will and not its judgment–applies. The majority disagrees, and applies the second standard–whether the decision was according to law. SCOW concludes that DHA did not erroneously exercise its discretion in excluding the hearsay testimony, we as its decision that good cause was not present was made according to law (¶¶29-44).
Justice Ziegler writes separately, concurring as to the judgment but does not join “the majority’s conclusion that the second issue in this case—whether the administrator erred by excluding hearsay testimony—is simply a question of whether the administrator acted “according to law.” The concurrence indicates that “[i]t may also be appropriate, given the petitioner’s arguments, to review the issue under the third certiorari prong, which asks “whether [the administrator’s] action was arbitrary, oppressive, or unreasonable and represented [his] will and not [his] judgment.” Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362 Wis. 2d 290, 865 N.W.2d 162. (¶47).
Justice Rebecca Grassl Bradley dissents, opining that “[t]he majority recites the correct standard of review but errs in applying it.” The dissent expresses the view that even ignoring the hearsay statements from the alleged victim, “no reasonable person would decline to revoke Sellers’ probation given the overwhelming evidence to support his multiple violations of the law.” (¶54). This view is based on video evidence from one week after the alleged sexual assault, which was presented at the revocation hearing, as well as other circumstantial evidence.(¶¶57-60).
The dissent concludes as follows:
Why the court granted DOC’s petition for review is unclear. The petition did not raise any novel issues of law. In addressing the issues, the majority contributes nothing to the jurisprudence governing revocation proceedings. Instead, the majority conducts the same flawed analysis as the court of appeals, relies upon the same well-established cases the court of appeals applied, and reaches the same conclusion by also deferring to the administrator’s legally deficient decision. The court of appeals issued an unpublished, non-precedential, per curiam opinion. There was no point in taking this case only to repeat the errant work of the court of appeals. In the end, nothing about this case warranted this court’s review. See Wis. Stat. § 809.62(1r) (listing the criteria for granting review). The court should have dismissed the petition as improvidently granted. By issuing a decision, the majority casts a façade of importance over its analysis, despite the opinion signifying nothing.
