STATE EX REL. PONCHIK v. Bradley

DYKMAN, J.

¶ 11. (dissenting). The majority has devised a new method of analyzing cases arising under State ex rel. Curtis v. Litscher, 2002 WI App 172, 256 Wis. 2d 787, 650 N.W.2d 43. While the method solves the issue in this case, ultimately, the cure is probably worse than the disease.

¶ 12. Inmates in foreign private prisons must petition foreign circuit or district courts to review their conditions of confinement cases. I have no quarrel with this concept, as usually applied, though it does not directly address Ponchik's situation. His situation, and that of all Wisconsin prisoners located in Oklahoma private prisons, is unique. Oklahoma has enacted a statute which, like Wis. Stat. § 302.02(3t) (2001-02),1 *775requires prisoners to litigate in a foreign state. Okla. Stat. tit. 57 § 563.2(K) (2001)2 provides:

The State of Oklahoma shall not assume jurisdiction or custody of any federal inmate or inmate from another state housed in a facility owned or operated by a private prison contractor. Such inmates from another state shall at all times be subject to the jurisdiction of that state and federal inmates shall at all times be subject to federal jurisdiction. This state shall not be liable for loss resulting from the acts of such inmates nor shall this state be hable for any injuries to the inmates.

¶ 13. Thus, Wis. Stat. § 302.02(3t) purports to give Oklahoma courts jurisdiction to decide private prison conditions of confinement cases, while Okla. Stat. tit. 57 § 563.2(L) (2001) purports to give Wisconsin courts jurisdiction to decide those issues for Wisconsin inmates housed in Oklahoma private prisons. But for Curtis, the result would be that Wisconsin prisoners housed in Oklahoma private prisons would have no judicial recourse to the courts of either state.

¶ 14. The majority, purporting to "elaborate" on Curtis, inquires only into whether a Wisconsin inmate in an Oklahoma private prison has petitioned an Oklahoma court to review his or her conditions of confinement case and the response of the Oklahoma court. Without reference to statutes, constitutions, appellate court decisions or administrative rules, the majority concludes that only when an Oklahoma court denies access to a Wisconsin inmate in a conditions of confinement case does a Wisconsin court have competence to *776address the prisoner's petition. But because the majority deems this a question of fact, every Oklahoma prisoner must petition an Oklahoma court in every case.

¶ 15. Thus, if the Oklahoma Supreme Court were to conclude, as I do, that Oklahoma courts lack jurisdiction to address Wisconsin prisoners' conditions of confinement cases, all prisoners would nonetheless be required to petition Oklahoma courts even though everyone knew at the outset that the petitions would be dismissed because Oklahoma courts lacked jurisdiction to address them. There is something wrong with a court requiring someone to file a frivolous lawsuit. How would Wisconsin courts react to an Oklahoma court adopting the majority's theory and require Oklahoma prisoners to file frivolous lawsuits in Wisconsin courts?

¶ 16. I would do what Wisconsin courts have been doing for a long time; examine the foreign statute to determine its meaning. See State v. Collins, 2002 WI App 177, ¶ 13, 256 Wis. 2d 697, 649 N.W.2d 325. I have done so with regard to Okla. Stat. tit. 57 § 563.2(L) (2004).

¶ 17. I conclude that this statute is unambiguous. Its intent is obvious. Oklahoma does not want its courts to become involved with private prison conditions of confinement cases. Oklahoma wants those actions to be brought and decided in the home states of private prison inmates.

¶ 18. Oklahoma Stat. tit. 57 § 563.2(L) (2001) is a new statute, having been first enacted in 1991. This opinion is the first judicial interpretation of that statute. Unlike Wisconsin, Oklahoma does not keep records which may shed light on a statute's meaning. The Oklahoma Department of Libraries notes:

The only official legislative history for Oklahoma legislative measures is a procedural one. Official legislative intent is rare. Committee reports, minutes, and hearings are not published.

*777So I am limited to the words of the statute.

¶ 19. Bradley and Frank argue that Okla. Stat. tit. 57 § 563.2(H)3 shows that prisoners in private prisons may bring actions seeking judicial review of conditions of confinement decisions. That statute provides:

A private prison contractor housing federal inmates or inmates of another state shall be responsible for the reimbursement of all reasonable costs and expenses incurred by this state or a political subdivision of this state for legal actions brought in this state by or on behalf of any federal inmate or inmate of another state while incarcerated in the facility, including court costs, sheriff mileage fees, witness fees, district attorney expenses, expenses of the office of Attorney General, indigent or public defender fees and costs, judicial expenses, court reporter expenses and any other costs, fees, or expenses associated with the proceedings or actions.

¶ 20. Providing that courts lack jurisdiction to entertain private prison conditions of confinement cases and providing that the private prison is liable for the costs if a prisoner brings a case are two different things. Prisoners are not shy about bringing lawsuits, regardless of statutory prohibitions against petitioner lawsuits. Oklahoma can at the same time prohibit private prison conditions of confinement cases and require private prisons to bear the costs of them despite the lack of jurisdiction in Oklahoma courts. I am not convinced that Okla. Stat. tit. 57 § 563.2(H) (2001) evinces a legislative intent to authorize prisoners in private Oklahoma prisons to bring their prison conditions of confinement reviews in Oklahoma courts.

*778¶ 21. Wisconsin sends its prisoners to only a few states. The majority's fear, expressed in State ex rel. Myers v. Swenson, 2004 WI App 224, 277 Wis. 2d 749, 691 N.W.2d 357, that it would not he efficient to require Wisconsin appellate judges to familiarize themselves with the laws of multiple jurisdictions is overblown. Wisconsin courts have not balked at interpreting foreign statutes. See Collins, 256 Wis. 2d 697, ¶ 13. Wisconsin courts use the concept of stare decisis, which requires us to follow previous cases, some of which interpret statutes. Once we have interpreted a statute, foreign or domestic, we cannot revisit that interpretation unless the statute is amended or repealed. See Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). Researching foreign statutes is no different from researching Wisconsin law, and takes no more time. Once done for the law of three states, we can freely rely on our opinions in future cases.

¶ 22. The majority's second fear, also expressed in Myers, also fails under scrutiny. This fear is that it is inefficient for Wisconsin courts to review foreign conditions of confinement cases because pertinent records and decision makers are located out of state. But all of our Wisconsin conditions of confinement cases are reviewed at a distance from the prisons where they originate. These appeals are mainly by certiorari, and on appeal are on the record made in a prison. Trial courts do not go to prisons to hear conditions of confinement cases, nor do we. Prisoners do not appear, even by telephone. If the United States mail can carry a record from Boscobel to a local courthouse, the Dane County courthouse or here, it can carry a record from Minnesota, Tennessee or Oklahoma. Prison officials in Minnesota, Tennessee and Oklahoma use English, the same language Wisconsin prison officials use. I am confident that Wisconsin trial and appellate courts can read and understand reports *779written by non-Wisconsin prison officials. In short, the majority's second reason for adopting its new standard is no reason at all.

¶ 23. The new analysis adopted by the majority will lead to frivolous, fruitless and wasteful litigation, at least as to Wisconsin prisoners in Oklahoma private prisons. The method previously used by Wisconsin courts, which I would continue, has proven to be efficient. I have reviewed Okla. Stat. tit. 57 § 563.2(L) (2004). I conclude that Wisconsin prisoners incarcerated in Oklahoma private prisons do not have access to Oklahoma courts to review conditions of confinement cases initially decided in Oklahoma private prisons. Accordingly, under Curtis, I conclude that Wisconsin courts have competency to review Ponchik's disciplinary case.4 Should Oklahoma change its statute or should an Oklahoma appellate court conclude differently, my view would change. But until then, I would affirm the trial court's order.5 Accordingly, I respectfully dissent.

Wisconsin Stat. § 302.02(3t) provides:

Institutions located in other states. For all purposes of discipline and for judicial proceedings, each institution that is located in another state and authorized for use under s. 301.21 and its precincts are considered to be in the county in which the institution is physically located, and the courts of that county have jurisdiction of any activity, wherever located, conducted by the institution.

*775All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

Section 563.2(K) has been changed to § 563.2(L). See 2004 Okla. Sess. Laws 552. The content of § 563.2(L) remains the same as § 563.2(K).

Section 563.2(H) has been changed to § 563.2(1). See 2004 Okla. Sess. Laws 552. Its content remains the same.

Since this is a dissent, it is not relevant how I would decide the merits of Ponchik's appeal and I do not do so.

The trial court also concluded that Wisconsin's "long arm" statute, Wis. Stat. § 801.05(5), authorized it to exercise personal jurisdiction over Jody Bradley, an Oklahoma resident. The majority need not and does not address this issue, and a dissent discussing an issue not reached by a majority makes for difficult analysis by readers and is even less useful than a dissent to an issue decided by the majority. I therefore conclude that though I agree with the trial court that jurisdiction over Bradley was present, no useful purpose is served by analyzing why that is true.