Naseer v. Miller
Naseer v. Miller
Opinion of the Court
¶ 1. In Appeal No. 2009AF2578-W, arising out of Columbia County, Hakim Naseer petitions for a supervisory writ of mandamus seeking to
¶ 2. In a consolidated appeal, Appeal No. 2010AP636-W, arising out of Grant County, Naseer petitions for a supervisory writ of mandamus seeking to compel Judge Craig R. Day to issue a criminal complaint in a separate John Doe proceeding. He alleges that during an escort procedure, a prison guard in Grant County committed a criminal act by squeezing his neck, for no legitimate purpose, to the point that he was "gag[g]ing and gasping for oxygen." He further alleges that as a result of the guard's actions, he had to seek unspecified medical attention.
¶ 3. We ordered the cases consolidated because they appeared to raise related questions regarding the proper interpretation of the recently amended John Doe statute, Wis. Stat. § 968.26 (2007-08),
DISCUSSION
¶ 4. A supervisory writ of mandamus is a mechanism by which a court may compel a public official to perform a legally obligated act. State ex rel. Robins v. Madden, 2009 WI 46, ¶ 10, 317 Wis. 2d 364, 766 N.W.2d 542. Because a supervisory writ "invokes our supervi
¶ 5. Here, in both cases, we are satisfied that Naseer has acted promptly, and that he has no other remedy than by supervisory writ. See State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶ 23, 260 Wis. 2d 653, 660 N.W.2d 260 (John Doe proceedings are not reviewable by appeal because the judge is not acting as the circuit court). Whether a supervisory writ is warranted in these cases thus turns upon whether either judge clearly violated a plain duty under the amended John Doe statute. An act which requires the exercise of discretion does not present a clear legal duty and cannot be compelled through mandamus. Law Enforcement Standards Bd. v. Village of Lyndon Station, 101 Wis. 2d 472, 494, 305 N.W.2d 89 (1981). Accordingly, in order to determine whether either of the judges here clearly violated a plain legal duty, we must first determine what, if any, mandatory actions the amended John Doe statute required them to take upon the complaints before them.
¶ 6. We begin our analysis with an overview of the key provisions of the amended John Doe statute. Under the amended version of Wis. Stat. § 968.26(2), a judge
¶ 7. To summarize, under the revised scheme a John Doe judge must potentially undertake four inquiries: (1) decide whether to refer the John Doe complaint to the district attorney in the first instance; (2) decide whether it is necessary to conduct any additional proceedings if the district attorney chooses
¶ 8. In the Columbia County case, Judge Miller referred the complaint to the district attorney before conducting an analysis of its merits on the theory that the statute's use of the word "shall" makes such referrals automatic. After the district attorney declined to prosecute, Judge Miller determined that no further proceedings were necessary because the facts alleged in the complaint — namely, that a prison official had served Naseer a single meal that was cold and/or less than a standard serving size — did not constitute a criminal act, even if true.
¶ 9. In the Grant County case, Judge Day refused to refer the complaint to the district attorney because he concluded that the facts alleged there — namely, that a guard had unnecessarily squeezed Naseer's neck to the point of impairing his breathing — when taken in conjunction with Naseer's history of filing unsubstantiated John Doe complaints against prison guards, failed to establish "reason to believe" that an actual crime had been committed.
¶ 10. We acknowledge that the use of the word "shall" typically signals a mandatory duty. See State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 614, 571 N.W.2d 385 (1997). However, we note that the prior John Doe statute similarly used the
¶ 11. When the legislature enacts or revises a statute, it is presumed to act with full knowledge of existing laws and prior judicial interpretations of them. See State v. McKee, 2002 WI App 148, ¶ 12, 256 Wis. 2d 547, 648 N.W.2d 34. We therefore conclude that the same interpretation of the "reason to believe" language relating to the prior statute's examination duty should also apply to the amended statute's referral duty. That is, under the amended statute, a judge has a mandatory duty to refer a John Doe complaint to the district
¶ 12. Applying this standard to the Columbia County John Doe complaint, we agree with Judge Miller's conclusion that Naseer failed to allege facts sufficient to establish reason to believe that a crime had been committed. Contrary to Naseer's assertions, serving a cold meal or a small portion at a single meal does not deprive an inmate of the "basic need for food," in violation of Wis. Stat. § 940.285; it does not constitute neglect or ill-treatment of a person confined in a penal institution in violation of Wis. Stat. § 940.29; it does not constitute misconduct in public office in violation of Wis. Stat. § 946.12; and it does not constitute harassment in violation of Wis. Stat. § 947.013. While prisoners have a right to sufficient food to provide adequate nutrition, there is no requirement that the food be tasty or even appetizing. See Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994). Naseer's complaint provides no information that would establish that he was in any way malnourished from the single, objectionable meal, or that there was any ongoing pattern of depriving him of nutritionally adequate meals. Because Judge Miller was not obligated to refer Naseer's complaint to the district attorney in the first instance, he was certainly
¶ 13. Applying the objective reason to believe standard to the Grant County case, we conclude that the complaint should have been referred to the district attorney. Critical to our analysis is the requirement that the initial evaluation be limited to the four corners of the complaint. Judge Day erred by considering Naseer's history of filing unsubstantiated John Doe complaints, information that is extrinsic to the complaint. A litigant's history of abusing the legal process may certainly be considered at a subsequent stage of the proceeding, along with any other materials forwarded to the court by the district attorney.
¶ 14. Focusing on the allegations in the complaint, and ignoring Naseer's history of filing frivolous complaints against prison officials, we conclude that his allegations that a prison guard squeezed his neck to the point of impairing his breathing, without any legitimate purpose for the chokehold, could conceivably support a charge of battery or some other offense. We therefore
By the Court. — Writ in 2009AP2578-W denied; writ in 2010AP636-W granted.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted. Prior to its 2009 amendment, Wis. Stat. § 968.26 provided in pertinent part as follows:
If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed.... If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint*729 may be reduced to writing and signed and verified; and thereupon a warrant shall issue for the arrest of the accused.
See § 968.26. 2009 Wis. Act. 24 §§ 3-5 amended § 968.26 as follows:
(1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub. (3) and shall subpoena and examine any witnesses the district attorney identifies.
(2) (a) Except in par. (am), in this subsection, "district attorney" includes a prosecutor to whom the judge has referred the complaint under par. (am).
(2)(am) If a person who is not a district attorney complains to a judge that he or she has reason to believe that a crime has been committed within the judge's jurisdiction, the judge shall refer the complaint to the district attorney or, if the complaint may relate to the conduct of the district attorney, to another prosecutor under s. 978.045.
In light of our conclusion that Naseer's Columbia County complaint failed to provide an objective reason to believe a crime had been committed, it is not necessary for us to address here what, if any, additional factors the court might have needed to consider in order to determine whether a hearing was necessary had the complaint been adequate.
We note that even a litigant who has abused the legal process in the past may find himself to be the victim of an actual crime.
Reference
- Full Case Name
- In the matter of the John Doe petition: Hakim Naseer v. The Honorable James Miller, Respondent In the matter of the John Doe petition: Hakim Naseer v. Circuit Court for Grant County and the Honorable Craig R. Day, presiding
- Cited By
- 2 cases
- Status
- Published