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Standards of Review: Administrative Decisions – Certiorari – Revocation of Probation – Right to Counsel

State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project

Issue/Holding: A new rule of equitable tolling for untimely certiorari petitions seeking review of revocation decisions is subject to the retroactivity analysis adopted by State ex. rel. Brown v. Bradley, 2003 WI 14, 259 Wis. 2d 630, 658 N.W.2d 427, which adopts “the three-pronged test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)”:

¶40. …(1) Does the rule ‘establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed?’

(2) Will retroactive operation further or retard the operation of the rule in question?

(3) Will retroactive application produce substantial inequitable results?

¶44. In the end, we agree with the State that our tolling rule should not apply retroactively, but rather “be limited to cases for which certiorari review is still available, but also encompassing Griffin and Glenn.” This limited application is consistent with our holdings in Schmelzer and BrownSchmelzer, 201 Wis. 2d at 258-59; Brown, 259 Wis. 2d 630, ¶26. “Such an approach permits some pro se prisoners to benefit from the new rule without the accompanying difficult proof problems which frustrate the operation of the rule.” Brown, 259 Wis. 2d 630, ¶26. Moreover, such a limited reapplication “recognizes the finality of case and the inequities that result from reopening cases thought to be long since closed.” Id.

(A 3-justice concurrence would apply a different retroactivity analysis, namely Teague v. Lane, 489 U.S. 310 (1989), “in the context of a collateral attack by habeas petition of a judgment already final,” ¶64.)

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