State of Wisconsin ex rel. Eugene Nichols v. Litscher, 2001 WI 119
For Nichols: Jeffrey O. Davis, Daniel J. LaFave
Issue: Whether a pro se prisoner’s petition for review may be accepted for filing in the supreme court, even though received after the filing deadline, where it was delivered to prison authorities for mailing before the deadline.
Holding:
¶11 We decline to interpret the term ‘file’ in § 808.10 and § 809.62(1) to mean ‘deposit in a prison mailbox.’ We agree that such an interpretation may strain the plain language of both the statute and the rule. In addition, such a construction of the word ‘file’ seemingly conflicts with language in our prior decisions….
¶13 … However, this does not mean that Nichols is without relief….¶24 We are persuaded by the rationale in Houston and by the approach in Shimkus and its progeny. Accordingly, we apply a similar tolling rule to pro se prisoners who file petitions for review in this court….
¶27 While we do not mandate any particular procedure that litigants must follow, we note that both Nichols and the State agree that the factual question of the proper tolling date could be relatively easily resolved in most cases by the use of a certificate of service or affidavit of mailing. Such a certificate or affidavit may be desirable in that, as the State avers, many prisons do not have a general ‘log-in’ system that identifies the date on which a prisoner submits outgoing mail. A certificate or affidavit would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified. We note, however, that a tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements….
¶32 In sum, we conclude that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing….
(Note: The court holds open the issue of retroactivity of this rule. ¶31.)
(Other cases discussing the mailbox rule may be found here.
