Reaffirming that the Department of Corrections, not the circuit court, is responsible for regulating the day-to-day affairs of persons being supervised by DOC, the supreme court sends this case back to the circuit court for it to either modify the supervision condition it ordered in this case or clarify how it is consistent with the law.
The circuit court ordered, as a condition of Williams-Holmes’s extended supervision and probation, that he not live with any member of the opposite sex or any unrelated child “without permission of the Court.” (¶4). Williams-Holmes argued that by requiring its permission on these aspects of his living arrangement, the circuit court was taking over the day-to-day administration of probation in violation of §§ 301.03(3) and 973.10(1), which grant DOC the authority to “administer” probation, parole and extended supervision matters and “control” probationers. (¶5). The court of appeals disagreed, reading the condition as a permissible no-contact order given the circuit court’s power to impose reasonable and appropriate supervision conditions, §§ 973.01(5) and 973.09(1)(a), and to then modify those conditions as provided in §§ 302.113(7m)(a) and 973.09(3)(a). (¶7).
As Williams-Holmes’s PFR (and our post on the court of appeals’ decision) noted, however, to come to that conclusion the court of appeals had to overlook the circuit court’s own characterization of its “condition” as a “requirement for my approval of DOC’s practice of residential placement” and its stated intent to enforce its condition via an informal exchange of emails with the DOC agent, not to use the statutory modification process (which would pose many significant practical difficulties). (¶6). The supreme court does not overlook these facts, and it reverses the court of appeals.
It begins by reaffirming the black-letter law on the role of DOC and the circuit court:
¶11 …. It is DOC that “shall . . . Administer” extended supervision and probation. Wis. Stat. § 301.03(3). The legislature chose its words carefully. “Administer” means to “have charge of; manage.” Administer, The American Heritage Dictionary of the English Language 22 (3d ed. 1992). This naturally and logically includes not just administering DOC’s own rules and conditions,.. but those set by the circuit court as well.
¶12 While the circuit court is not involved in the day-today administration of probation or extended supervision, its role is not necessarily extinguished. The statutes also provide that conditions imposed by the court for both extended supervision and probation are not set in stone; they can be modified. See Wis. Stat. §§ 302.113(7m)(a); 973.09(3)(a). This occurs via a formal process. A party seeking “to modify any conditions of extended supervision set by the court”——and modification can be requested by DOC or the person subject to extended supervision——”may petition the sentencing court” to do so. § 302.113(7m)(a). The statute then provides various processes, standards, and restrictions governing the sentencing court’s consideration of the petition…. Ultimately, the court can grant the petition only “if it determines that the modification would meet the needs of the department and the public and would be consistent with the objectives of the person’s sentence.” § 302.113(7m)(c). Similarly, a court “may extend probation for a stated period or modify the terms and conditions thereof” before the expiration of the probation period. § 973.09(3)(a). However, the extension or modification of conditions can only occur “for cause and by order.” Id.
Accordingly, the circuit court’s condition that Williams-Holmes could not live with any unrelated women or children without its permission is either a type of supervision the statute entrusts to DOC, and thus improper, or it’s a legal court-imposed condition that is subject to the statutorily permitted modification process. (¶13). The court of appeals picked the second interpretation; not so the supreme court:
¶14 We take a different approach. While we agree with the court of appeals’ analysis of the statutory scheme, the record strongly suggests the circuit court intended to administer this condition of supervision itself, and not leave future permission to a statutorily authorized modification. In its postconviction explanation, the circuit court appears to have envisaged Williams-Holmes (or a probation or parole agent) communicating with the court directly and as needed to obtain the necessary approval for him to live with a woman or an unrelated child. This would constitute impermissible supervision and administration of the conditions of probation by the court, which the legislature has entrusted to DOC. The affirmation of the condition by the court of appeals therefore seems at odds with the circuit court’s own explanation…. Therefore, we reverse and remand the cause to the circuit court to afford it an opportunity to either clarify how the condition imposed is consistent with the law or to modify its order accordingly.
Three justices dissent (Ziegler, joined by Roggensack and R.G. Bradley) on the theory the circuit court clearly intended for its “permission” to come only via statutory modification. (¶¶15-28). Regarding which conclusion the majority says: “…[N]o one other than the dissent reads the record that way. The court of appeals does not suggest this. Even the State acknowledged during oral argument it was unclear. In any event, if the dissent’s interpretation of the condition is correct, our remand order allows the circuit court to say so.” (¶11 n.7).