01-2042 State ex. Rel. Odis Purifoy v. Malone, et al.

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“We agree with the respondents that certiorari review is the appropriate procedural device. … When Purifoy filed his petition, he was not asserting that he was then being illegally restrained. Rather, he was seeking review of Morgan’s decision rescinding his grant of parole effective on or after November 19, 2001, and refusing to grant him a hearing.”

However, we hold that petitioner’s cause of action did not accrue until he received notice that he would not receive a hearing. Therefore, his petition was timely.

“After Morgan rescinded his parole grant on April 18, Purifoy sent letters to both David Schwarz, the administrator of the Division of Hearings and Appeals, and Morgan, requesting that he receive a hearing. In letters dated May 18, 2001, and May 25, 2001, William Lundstrom, an assistant administrator, denied his request. It appears that Morgan responded to Purifoy in a letter dated June 6, also stating that Purifoy was not entitled to a hearing. … If June 6 was the date Purifoy’s cause of action accrued, his forty-five-day deadline under Wis. Stat. sec. 893.735 did not expire until July 23. Purifoy’s petition was filed with the circuit court well before this date, on July 3, and therefore is timely.”

And, although the parole commission chairperson argues that she only rescinded a “recommended” grant of parole, under Wis. Stat. sec. 304.01, the parole commission chairperson has “final parole granting authority.” It therefore makes no sense to classify decisions of the chairperson regarding parole as “recommendations,” as there is no one to whom the recommendation would be made, other than the chairperson.

“Under Wis. Admin. Code sec. PAC 1.07(5)(c), the parole commission may rescind a parole grant only if there are ‘circumstances’ ‘subsequent to the issuance of the grant’ that require the rescission. Further, Purifoy has the right to be provided with the reasons for the parole rescission and the evidence supporting that decision and a right to a hearing before DHA, to present evidence and witnesses and to be represented by counsel at the hearing. Wisconsin Admin. Code sec. PAC 1.07(5)(c). We therefore remand for that purpose.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist IV, Dane County, DeChambeau, J., Dykman, J.

Attorneys:

For Appellant: Odis L. Purifoy, Oregon

For Respondent: Karla Z. Keckhaver, Madison