State Ex Rel. Ellenburg v. Gagnon , 76 Wis. 2d 532 ( 1977 )

PER CURIAM.

In June of 1973, the petitioner-appellant Paul R. Ellenburg, an inmate at the Fox Lake Correctional Institution, made a complaint to the assistant wardens concerning alleged wrongdoing by employees of the institution.

The complaint alleged several acts of misconduct, some of which are as follows: Employees of the institution misused money obtained through a federal grant, were using institution facilities for personal gain, were not performing their duties, engaged in homosexual acts with inmates, and specifically named two employees whom he alleged were involved in an illicit sexual relationship outside the institution.

Because of the serious nature of the charges, the warden, John R. Gagnon, the respondent here, ordered a staff investigation. The investigation concluded there was no basis, in fact, for any of the allegations of Mr. Ellenburg.

On July 30, 1973, Gagnon charged Ellenburg with violating an institution rule entitled “False Communication.” The rule stated: “No man shall in any way communicate false information to anyone knowing the same to be untrue.”

On August 6 and 9, 1973, a three-man disciplinary committee of the institution convened to hear the charge against Ellenburg. After a hearing, in which Ellenburg and a staff counselor on his behalf appeared, the committee concluded the allegation that two institution employees were engaged in illicit sexual conduct was false and that it was a violation of the false communication rule. It recommended that Ellenburg be given seven days of isolation confinement and that three days prison good time be forfeited.¹ The decision of the disciplinary committee was affirmed by the Department of Health & Social Services.

A writ of certiorari was issued by the circuit court for Dodge county on March 1, 1974. On June 13, 1974, the circuit court filed a memorandum decision which directed a judgment be entered affirming the decision of the committee and the department. Judgment was entered January 28, 1975, and this appeal followed.

The appellant has raised several issues and filed an extensive well prepared brief. The appellant contends the false communication rule violates the First Amendment to the United States Constitution in that it is over-broad and vague, that there were several procedural errors and failures in the proceedings before the disei-plinary committee, and that the totality of the proceedings denied the appellant of due process as required by the United States and Wisconsin Constitutions.

We conclude that all issues are now moot and that the appeal should be dismissed.

At the time of oral argument the appellant, Paul R. Ellenburg, was no longer an inmate of any Wisconsin correctional institution and not subject to institutional disciplinary rules. He had been released on parole. Because he is on parole, a decision of this court could in no manner affect the provision for institutionalized isolation. At this stage nothing this court could do would affect the isolation one way or the other. As to the loss of three days good time, whether it was taken or not, is de minimis. Ellenburg was serving an eleven-year sentence — three days is de minimis.

In Fort Howard Paper Co. v. Fort Howard, Corp., 273 Wis. 356, 360, 77 N.W.2d 733, the court reasserted its definition of mootness as follows:

“This court in its decision in Wisconsin E. R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 440, 32 N.W. (2d) 190, stated:

“ ‘A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy/ ”

In considering the question of mootness, when constitutional or public juris questions are involved, this court has on occasion reached the issues presented. However, consideration of constitutional issues as they apply to other persons or other situations is guarded and limited.

In Cohen v. Towne Realty, Inc., 54 Wis.2d 1, 4-5, 194 N.W.2d 298 (1972), we quoted the United States Supreme Court as follows:

“ ‘. . . This Court, as is the case with all federal courts, “has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.’ ”²

We are not persuaded to reach the constitutional question as to whether the false communication disciplinary rule violates the First Amendment as being overbroad and vague because a subsequent department directive limited the application of the rule. The directive provides as follows:

“TO: Wardens & Superintendents Adult Institutions

“FROM: Andrew A. Basinas, Director Bureau of Institutions

“RE: Rule 5.04 — False Communication

“Effective immediately, Rule 5.04 (False Communication) is to be used to regulate only those activities that bear a direct effect on the integrity, safety, and security of the institution. The rule is designed to regulate those activities noted in the Manual of Adult Resident Status and Penalties, i.e., lying about and/or presenting counterfeit, forged, or altered records, pass slips, canteen slips, coupons, or any other documents, or communications, to the institution, Division or Departmental administration which are intended to incite administrative action. It is not to be used to regulate private communication through correspondence, whether privileged or nonpriv-ileged.”

This directive, if followed in future cases, will present essentially different considerations to a challenge that the First Amendment has been violated.

We conclude the issues presented in this ease are moot and the appeal should be dismissed.

Appeal dismissed.

1 The record is not clear as to whether the committee ordered loss of three days good time or whether he ever lost it.

2 See also, State ex rel. Renner v. H&SS Dept., 71 Wis.2d 112, 237 N.W.2d 699 (1976) (mootness); Putnam v. McCauley, 70 Wis.2d 256, 234 N.W.2d 75 (1975) (procedure for revoking good time).