Harlan Richards v. Graham, 2011 WI App 100(recommended for publication); for Richards: Kendall W. Harrison, Jennifer L. Gregor; case activity
Mootness Doctrine
Challenge to Parole Commission decision to increase deferment period from 10 to 12 months, and to Program Review Committee decision to increase security status, not rendered moot by subsequent parole and program hearings.
¶11 An issue is moot when a party seeks a determination that will have no practical effect on an existing legal controversy. Racine v. J-T Enters. of Am., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869 (1974). Appellate courts generally decline to decide moot issues. State ex rel. Wis. Envtl. Decade, Inc. v. Joint Committee for Review of Administrative Rules, 73 Wis. 2d 234, 236, 243 N.W.2d 497 (1976). Nevertheless, we will decide an issue, even if moot, when the issue will likely reoccur but will continue to evade appellate review because of the substantial time required for the appellate review process. State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 229, 340 N.W.2d 460 (1983). In State ex rel. Treat v. Puckett, 2002 WI App 58, 252 Wis. 2d 404, 643 N.W.2d 515, we held that an inmate’s claim that the PRC incorrectly applied the risk-rating guidelines was not rendered moot simply because he had received another program review. We observed that the question of mootness in that case turned on “a determination of whether a decision in Treat’s favor” on the merits “would afford him some relief that he ha[d] not already achieved by virtue of the subsequent program review.” Id., ¶19.
Parole Decision – “Defer Period”
Parole Commission decision to deny parole and to set the “defer period” at 12 months when it had previously been 10, upheld based on violent nature of offense, as overriding successful completion of relevant programs and work-release experience.
¶19 Richards’ argument assumes that the Commission must provide reasons separate from the reasons for denying parole when increasing the deferment period. However, the lack of a standard for setting a parole reconsideration date indicates that the reasons for the Commission’s decision on deferring parole also serve as the reasons for the length of the deferment. The Commission appears to argue that the setting of a parole reconsideration date is a purely administrative decision, and, based on the absence of a separate standard for this determination, we agree. We conclude that the Commission’s decision to set parole reconsideration on any date within one year of the denial of parole is an administrative decision addressed to the Commission’s discretion.[7]
Program Review Decision – Elevated Risk
Elevation of Richards’ risk rating, from low to moderate, based solely on the Parole Commission’s decision to increase the deferment period, was arbitrary.
¶31 Because the record shows that the PRC’s elevation of Richards’ risk rating to moderate was based solely on the Parole Commission’s decision to set the deferral period at twelve months, we conclude that the risk-rating decision was arbitrary. The PRC did not explain in its decision how the length of Richards’ deferment affected his security risk. Because, as the Parole Commission argued and we agreed, the increase in the defer period from ten to twelve months was purely administrative, we see nothing obvious about the change that would suggest the need for an increase in Richards’ risk assessment. Moreover, to the extent the Commission’s reasons for extending Richards’ defer period are the same as its reasons for denying him parole, we observe that the PRC did not reference these reasons in its decision.
And, because the decision to elevate Richards’ custody classification was based on his elevated risk rating, that decision, too, was arbitrary, ¶¶33-35. The remedy is “remand for a new review,” ¶36.
Based on the opinion, the Court’s decision upholding the Commission’s action of increasing the deferral period from 10 months to 12 months appears to be unsupportable. The question is not whether Richards can point to any specific law requiring that the Commission cite rational reasons for its actions. Although overlooked by the Court in this part of its analysis, review of agency actions includes the question of whether the action is arbitrary or capricious. That well-established standard of review provides exactly the “right” the Court claims is missing here.
The Commission’s failure to explain why a 12-month deferral is now required where a 10-month deferral was deemed adequate before, and the apparent absence of any rational basis justifying the increase, renders it patently arbitrary and capricious without regard to whether there is any other law also protecting Richards from such arbitrary action. The original seriousness of the offense cannot rationally support an increase where, as it appears here, that was already known and factored into the prior, 10-month deferral. Indeed, the Court of Appeals has summarily reversed for exactly these reasons in the past by unpublished order in Walter G. Szymanski v. Jerry E. Smith, Jr., Appeal Number 2001AP000148.