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ALJ Error – Extended Supervision

By: Derek Hawkins//April 22, 2020//

ALJ Error – Extended Supervision

By: Derek Hawkins//April 22, 2020//

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WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Patrick H. Schober v. Brian Hayes

Case No.: 2018AP2064

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: ALJ Error – Extended Supervision

Patrick Schober’s extended supervision was revoked following a hearing before an administrative law judge (ALJ), and he was ordered reconfined. On appeal from the ALJ’s revocation and reconfinement determinations, the administrator of the Wisconsin Department of Administration Division of Hearings and Appeals (DHA) concluded revocation was supported by the record and then ordered the amount of reconfinement time increased to the maximum allowed.

Schober filed a petition for a writ of certiorari in the circuit court. The court dismissed his petition on the merits without issuing the writ or otherwise ordering a return of the record, and it also denied Schober’s motion for reconsideration. The administrator acknowledges the circuit court’s dismissal of the petition on the merits without issuing the writ or ordering a return of the record was an apparent violation of State ex rel. Kaufman v. Karlen, 2005 WI App 14, 278 Wis. 2d 332, 691 N.W.2d 879 (2004). The administrator nonetheless argues that the orders should be affirmed because Schober’s petition failed to state a claim upon which relief could be granted.

We conclude Schober’s petition stated two claims that, if proven, would entitle Schober to certiorari relief. First, Schober alleged that the DHA administrator improperly discounted the availability and feasibility of his proposed alternative to revocation by failing to consider his posttraumatic stress disorder (PTSD) diagnosis. Second, he alleged the administrator unlawfully retaliated against him for appealing the ALJ’s determination. We reverse the dismissal of his petition in part and remand with directions for the circuit court to issue the writ of certiorari and set a briefing schedule and deadlines for the production of the record on the two viable issues. The orders are affirmed in all other respects.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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