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Wisconsin’s PLRA held constitutional


“The PLRA does not violate Harr’s rights to equal protection of the laws because there is more than one rational basis supporting the legislative creation of different classifications to be considered when costs and fees are awarded.”

Hon. Daniel P. Anderson Wisconsin Court of Appeals

Wisconsin’s version of the Prison Litigation Reform Act (PLRA), which bars successful prisoners from recovering statutory costs, does not violate the Equal Protection Clause, the Wisconsin Court of Appeals held on April 14.

Daniel Harr was an inmate at the Supermax prison, who successfully pursued a common law certiorari action in circuit court to overturn a disciplinary reprimand on First Amendment grounds.

After the circuit court issued its order overturning the disciplinary action, Harr filed a request for fees and costs totaling $609.18. The State opposed Harr’s request, contending that sec. 814.25(2) precluded the court from granting the request.

Then-Dane County Circuit Court Judge Paul B. Higginbotham agreed and denied the motion. Harr appealed, but the court of appeals affirmed in a decision by Judge Daniel P. Anderson.

Section 814.025(2)(a) provides, “Except as provided in par. (b), if a prisoner brings an action or special proceeding related to prison or jail conditions, no costs may be allowed against the state, a state agency or a county, city, village or town, or against any individual defendant when sued in an official capacity.”

What the court held

Case: State of Wisconsin ex rel. Daniel Harr v. Gerald Berge, No. 03-2611.

Issue: Does Wisconsin’s PLRA — barring an award of costs to prisoners who successfully challenge prison or jail conditions in court — violate the Equal Protection Clause?

Holding: No. The legislature could rationally conclude that the public treasury should be available to finance lawsuits brought by prisoners.

Counsel: Daniel W. Harr, pro se, for appellant; David E. Hoel, Madison, for respondent.

Because prisoners do not constitute a suspect class for equal protection purposes, the classification need only bear a “rational relation to some legitimate end.” The court concluded that the classification met this test.

Noting that Wisconsin’s PLRA is based on the federal PLRA, but is much broader, the court found that its serves two purposes: deterring frivolous lawsuits; and limiting prisoner litigation that is subsidized by the taxpayer.

Quoting State ex rel. Khan v. Sullivan, 2000 WI App 109, par. 10, 235 Wis. 2d 260, 613 N.W.2d 203, the court iterated, “Distinguishing between prisoners and non-prisoners is a rational means of limiting frivolous litigation because it has been recognized that prisoners, as a group, have little incentive for refraining from suit, and account for a disproportionate amount of meritless litigation.”

The court concluded, “For Harr to be successful, he must convince us that there are no grounds that can be conceived to justify barring the award of costs and fees to a successful prisoner,” citing Johnson v. Daley, 339 F.3d 582, 586 (7th Cir. 2003), in which the Seventh Circuit upheld the constitutionality of the federal PLRA’s caps on attorney fees for prisoner litigation.

The court wrote, “We agree with the 7th Circuit Court of Appeals that the ‘American Rule’ is one rational solution to the question ‘how much may plaintiffs be allowed to spend for legal services, how much of that must be paid for by the losing side, and how much of the cost of litigation will be covered by the public fisc?’ Johnson, 339 F.3d at 591. The ‘American Rule’ also permits the legislature, as representative of the public, to determine by statute the responsibility for the losing side to reimburse the winner for expenses of litigation. The Legislature has acted by authorizing the awarding of costs and fees to the prevailing party in limited circumstances.

For example, Wis. Stat. secs. 814.01-814.036 establish when a party may recover costs and fees and Wis. Stat. sec. 814.04 establishes the costs and fees a party may be awarded. The question becomes whether there is a rational basis to support the legislative determination that a prevailing prisoner is not entitled to costs and fees.”

Related Links

Wisconsin Court of Appeals

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Case Analysis

The court then listed two such bases: in the case of prisoner actions challenging the conditions of confinement, the Legis-lature could validly conclude that the successful prisoner should not be reimbursed from the public treasury because the only person who benefited from the li
tigation was the prisoner; and the Legislature could reasonably conclude that a prisoner is not entitled to the reimbursement of costs and fees because the prisoner already receives, from the public treasury, paper and pen to draft legal documents, law libraries, and assistance from “writ writers” and “jailhouse lawyers.”

The court concluded, “The PLRA represents the Wisconsin legislature’s attempt to stem the flood of pestiferous prisoner lawsuits, financed from the public treasury.

The PLRA does not restrict a prisoner’s access to the courts to challenge the conditions of confinement, it does nothing more than bar the access from being subsidized by the public treasury. The PLRA does not violate Harr’s rights to equal protection of the laws because there is more than one rational basis supporting the legislative creation of different classifications to be considered when costs and fees are awarded.”

Accordingly, the court affirmed the denial of costs and fees.

Click here for Case Analysis.

David Ziemer can be reached by email.

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