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(State) Habeas Corpus – Procedural Requirements – Adequate Alternative Remedy

State ex rel. William E. Marberry v. Macht, 2003 WI 79, reversing 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522
For Marberry: Donald T. Lang, SPD, Madison Appellate


¶23. The extraordinary relief provided by the writ of habeas corpus is available only in limited circumstances and is subject to three prerequisites. Haas , 252 Wis. 2d 133, ¶12. First, the petitioner must be restrained of his liberty. Id. Second, the restraint must have been imposed without jurisdiction or contrary to constitutional protections. Id. Third, the petitioner must demonstrate that there are no other adequate remedies available in the law. Id.Absent a showing that all three criteria are met, the writ of habeas corpus will not issue. Id.

The 3-vote lead opinion goes on to conclude that because mandamus would lie to compel observance of the right at issue in this particular instance – violation of the mandatory time limit for periodic reexamination under § 980.07 – an adequate remedy exists at law and habeas therefore isn’t supported. ¶27. The lead opinion does not, however, explain how mandamus – itself an extraordinary writ requiring no adequate remedy at law, Pasko v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d 72 – can serve as an adequate remedy at law. Perhaps the combination of mandamus and contempt affords a calculus which transforms an extraordinary remedy into a legal one. In any event the 3-vote concurrence explicitly disagrees that mandamus is a viable alternative, ¶37, but agrees for unstated reasons that the Marberry isn’t entitled to relief. Whether this is because habeas isn’t a suitable vehicle isn’t spelled out. In other words, all 6 voting justices agree that Marberry is not entitled to relief, but there is simply no majority view as to the rationale; it is therefore quite doubtful that the holding is that mandamus, even when combined with contempt, is a suitable alternative remedy at law.


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