Marcus J. Kerby v. Jon Litscher

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP284 Cir. Ct. No. 2017CV1363
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN EX REL. MARCUS J. KERBY,
PETITIONER-RESPONDENT,
V.
JON LITSCHER,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Dane County:
SHELLEY J. GAYLORD, Judge. Dismissed.
Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP284
¶1 PER CURIAM. John Litscher, as secretary of the department of
corrections, appeals a circuit court order enjoining the department from deducting
funds from Marcus Kerby’s prisoner trust account at a rate greater than 25%. 1 For
the reasons explained below, we dismiss this appeal as moot.
¶2 The material facts are not in dispute. Kerby had judgments of
conviction that included express language requiring him to pay outstanding
financial obligations at the rate of 25% from his prison wages and work release
funds. The judgments further stated that the department would collect the
payments.
¶3 While Kerby was in prison, the department adopted a new policy
under which it began deducting funds from prisoner trust accounts at a rate of 50%
for restitution, statutory surcharges, and court costs. Pursuant to this policy, the
department began deducting funds from Kerby’s account at the rate of 50%.
¶4 Kerby unsuccessfully challenged the department’s policy through
administrative channels. He then sought relief in the circuit court. He argued that
the department’s policy was contrary to state statutes, the state administrative
code, and his judgments of conviction.
¶5 The circuit court granted declaratory and injunctive relief to Kerby.
The court ruled that the department’s policy violated WIS. STAT. § 973.05(4)(b)
(2017-18),2 and the court enjoined the department from collecting funds from
1
Litscher was the secretary of the department of corrections at the time this appeal was
initiated.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP284
Kerby at a rate greater than 25%.3 The court also ruled that Kerby was not entitled
to money damages or a refund for past deductions.
¶6 Litscher appealed and stated three issues on appeal: (1) whether the
department properly determined that it has the authority to deduct funds from
Kerby’s prisoner trust account at a rate of 50%; (2) whether the circuit court erred
in concluding that WIS. STAT. § 973.05(4)(b) limits the department’s authority to
deduct funds from Kerby’s account at a rate greater than 25%; and (3) whether the
circuit court lacked authority to declare a department policy invalid and to issue an
injunction.
¶7 After Litscher appealed, Kerby was released from prison. The
parties now agree that all issues in this appeal are moot. “‘An issue is moot when
its resolution will have no practical effect on the underlying controversy.’”
Portage Cty. v. J.W.K., 2019 WI 54, ¶11, 386 Wis. 2d 672, 927 N.W.2d 509(quoted source omitted).
¶8 Litscher argues that we should nonetheless address the second of his
three stated issues. He argues that this issue falls under two exceptions to the
mootness doctrine.
¶9 “Appellate courts generally decline to reach moot issues, and if all
issues on appeal are moot, the appeal should be dismissed.” Id., ¶12. An
appellate court “may, however, choose to address moot issues in ‘exceptional or
compelling circumstances.’” Id. (quoted source omitted). The exceptions include:
3
The circuit court’s written order refers to WIS. STAT. § 973.04, but it is apparent that
the circuit court intended to refer to WIS. STAT. § 973.05(4)(b).
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No. 2018AP284
(1) “the issues are of great public importance;” (2) “the
constitutionality of a statute is involved;” (3) the situation
arises so often “a definitive decision is essential to guide
the trial courts;” (4) “the issue is likely to arise again and
should be resolved by the court to avoid uncertainty;” or
(5) the issue is “capable and likely of repetition and yet
evades review.”
Id. (quoted source omitted).
¶10 Litscher argues that the third and fourth exceptions apply to the
second of his three stated issues: whether the circuit court erred in concluding that
WIS. STAT. § 973.05(4)(b) limits the department’s authority to deduct funds from
Kerby’s prisoner trust account at a rate greater than 25%. He argues that “this
issue arises so often that a definitive decision is essential to guide the circuit
courts.” Litscher asserts that there are ten Dane County Circuit Court cases that
have been stayed pending a decision in Kerby’s case, and that a number of these
cases concern whether § 973.05(4)(b) or the circuit court’s decision in Kerby’s
case restricts the department’s authority to deduct funds from a prisoner trust
account at a rate greater than 25%. Litscher argues that this issue arises often
because every inmate has a prisoner trust account, and because the department
policy remains in effect. Litscher argues that resolving this issue will avoid
further uncertainty.
¶11 Kerby disagrees that we should decide this issue or any other issue
based on the mootness exceptions. He acknowledges that the department’s policy
continues to apply to prison inmates. He argues, however, that the express
language in his judgments of conviction requiring deductions at a rate of 25%
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No. 2018AP284
distinguishes his case from other cases. Kerby argues that the odds of his
particular scenario recurring are low.4
¶12 Having considered the parties’ arguments, we decline to apply the
mootness exceptions to consider the merits of any issue in this case.
¶13 First, the parties’ arguments leave us uncertain of the extent to which
the express language in Kerby’s judgments of conviction might narrow the reach
of any decision we make here.
¶14 Second, Litscher does not persuade us that a decision on the second
of his three stated issues would be more helpful to other litigants, or would resolve
more uncertainty, than a decision on the other issues. In other words, Litscher
does not demonstrate that the mootness exceptions apply to his preferred issue
more than other issues.
¶15 Third, Litscher does not satisfactorily explain why, as a practical
matter, it would be reasonable to consider the merits of only one issue without also
considering the merits of other issues. We note that Kerby’s alternative arguments
for affirming the circuit court raise one or more issues that Litscher has declined to
address. It could be that, if we reached the merits of this appeal, an issue other
than Litscher’s preferred issue should be dispositive.
4
This court appointed Attorneys Jason D. Luczak and Kathryn A. Keppel of the firm
Gimbel, Reilly, Guerin & Brown LLP, to represent Kerby through the State Bar of Wisconsin’s
Appellate Practice Section pro bono program. We commend their volunteer efforts and the
quality of the brief they filed on Kerby’s behalf. We note that the brief includes alternative
arguments on the merits that may be helpful to future litigants.
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No. 2018AP284
By the Court.—Appeal dismissed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
6