Court of Appeals of Wisconsin, District IV.
No. 2009AP473.
Opinion Filed: December 10, 2009.
APPEAL from an order of the circuit court for Dane County: DIANE M. NICKS, Judge. Affirmed.
Before Dykman, P.J., Higginbotham and Bridge, JJ.
PER CURIAM.
¶ 1 Harlan Richards appeals an order quashing a writ of certiorari to review the Wisconsin Parole Commission’s decision denying parole and deferring his next hearing for twelve months. Previous deferrals had been for eleven months’ and ten months’ duration. Because Richards had no
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incidents of misconduct since his last parole hearing, he contends he was again entitled to ten months’ deferral. He argues that the Commission’s decision: (1) was not supported by substantial evidence; (2) was barred by claim preclusion; and (3) resulted in his transfer to a higher security prison, causing an atypical change in prison circumstances that implicates his due process rights. We reject these arguments and affirm the order.
¶ 2 This court’s scope of review is identical to that of the circuit court. State ex rel. Staples v. DHSS, 136 Wis. 2d 487, 493, 402 N.W.2d 369 (Ct. App. 1987). Certiorari review is limited to whether the Commission’s decision was within its jurisdiction, whether it acted according to law, whether its decision was arbitrary or oppressive, and whether the evidence of record substantiates the decision. Id. When there are two conflicting views of the evidence, it is for the administrative agency to determine which view of the evidence it wishes to accept See Robertson Transp. Co. v. Public Serv. Comm’n, 39 Wis. 2d 653, 658, 159 N.W.2d 636 (1968). If reasonable minds could arrive at the same conclusion the Commission reached, then its decision is supported by substantial evidence and it must be affirmed. See State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461 N.W.2d 816 (Ct. App. 1990).
¶ 3 Substantial evidence supports the Commission’s decision to defer Richards’ next parole hearing for twelve months. The Commission concluded that Richards had not served sufficient time to address the issue of punishment and that his release presented a risk to the public. That decision is supported by Richards’ record, which includes the present conviction for stabbing an individual twenty-one times, resulting in a first-degree murder conviction, and prior convictions for manslaughter and delivery of LSD. He has attempted to minimize his culpability by claiming self-defense for the homicides. Despite the substantial
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progress Richards has made in prison, the Commission could reasonably conclude that he presents a continuing risk to the public and that a twelve-month deferral of consideration for parole appropriately reflects the seriousness of his offense and the danger he poses. Furthermore, the decisions of earlier Commissions to defer Richards’ parole hearings for ten months are not binding on subsequent commissions. Each is a unique inquiry based on the Commission’s current view of the circumstances.
¶ 4 Claim preclusion does not bar the Commission’s decision. Richards’ argument is based on a 2002 certiorari action that challenged a parole decision increasing the deferral time from eleven months to twenty-four months. The case resolved when the Commission agreed to rescind the deferral and expunge it from Richards’ record. Richards argues that this settlement bars the Commission from increasing his deferral in the absence of some record of misconduct. We disagree. Claim preclusion prohibits relitigation of a final judgment between the same parties. It requires identity of the causes of action in the two lawsuits.Kruckenberg v. Harvey, 2005 WI 43, ¶ 21, 279 Wis. 2d 520, 694 N.W.2d 879. An identity of causes of action exists when litigation arises out of the same transaction or series of transactions. Post v. Schwall, 157 Wis. 2d 652, 658, 460 N.W.2d 794 (Ct. App. 1990). The causes of action in the various Commissions’ decisions in the present matter do not arise out of the same transaction or series of transactions because each parole hearing involves a fresh assessment of the eligibility factors listed in WIS. ADMIN. CODE § PAC 1.06(7) (Oct. 2000). Thus, the doctrine of claim preclusion does not apply.
¶ 5 Finally, Richards argues that the twelve-month deferral resulted in his transfer to a higher security prison, implicating his due process rights. That argument fails for two reasons. First, the Department of Corrections, not the
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Commission, was responsible for Richards’ transfer, and review of its decision is not within the scope of certiorari review of the Commission’s decision. See State ex rel. Grzelak v.Bertrand, 2003 WI 102, ¶ 12, 263 Wis. 2d 678, 665 N.W.2d 244. Second, Richards does not have a liberty interest in serving his sentence in a work release center. The State creates a liberty interest when it imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”Sandin v. Conner, 515 U.S. 472, 484 (1995). The conditions in a higher security prison do not impose an atypical or significant hardship on a prisoner convicted of homicide.
By the Court. — Order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5 (2007-08).
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