BIG confusion as FFUP tries to be even handed about spreading litigator's suggestions to deal with the taking of up to 100 % of inmate funds for fines and restitution. "Too many cooks", as they say also : "The blind leading the Blind " fits.
So we are going to take advantage of the offer of Randal Mataya to in the future vet our legal input. We have tried this before , yes but consistency has always been a problem and only now does FFUP have enough tools and to predict anything.SO here is Randall Mataya's attempt to clarify KERBY and also the actual text of the complaint and exhibits filed are linked below.
Here is original complaint:
Exhibits that went with the complaint:
Here is Randall Mataya's explanation of the Kerby win and it is posted in full below :
BY: Randy Mataya
I have received over a
thousand letters from 'all of you, asking me various questions about the DOC
50% deductions case (KERBY) and other non-related issues. I cannot answer every
letter individually because I don't have that kind of cash flow. So, I'm going
to do it in this newsletter that FFUP (PEG) is kind enough to offer a place to
me for it.
CURRENT STATUS OF KERBY
As everyone already
knows, I litigated KERBY and we won. There is a lot of you that have offered
your input into what KERBY means, and some of you have criticized my work as not
making all the claims in KERBY that I could have made. Here is the answer to
you. One legal beagle said I filed a certiorari in KERBY and in it I failed
to-seek recovery of the illegal deductions. That is a falsehood. I never did a
certiorarI action in KERBY. I filed a "Petition for temporary
injunction/permanent injunction, and petition for a declaratory judgment".
Both actions combined into a single action under the statutory authority of
813.40 and 227.40 of the Wis. Stats. I served a copy of this action on the,
JOINT CQMMITTEE. FOR ADMINISTRATIVE RULE REVIEW, a copy
of it on WISCONSIN ATTORNEY GENEAL BRAD D. SCHIMEL and a copy of it on DEPARTMENT
OF CORRECTIONS SECRETARY JON LITSCHER, pursuant to the statutes.
In this action, I
alleged and proved by documentary evidence that the .DOC'S actions were
illegal. First, before I get into all of the legalities of it, I wish to also
state that I premised some of my arguments on an obscure DOC Administrative
Code known as 309.465. A code that is still active and full of venomous liquid
against DOC. I direct you to look it up on the Lexis or in an old 309. It
states a lot for one paragraph. When 973.045, 9.73.05 and 973.06 came into Our
existence, the DOC' created an' promulgà ted an Administrative Code, 309.465
that would operate in conjunction with these cited statutes.
The DOJ argues in KERBY
that there is nothing in the Statutes that commands that DOC assess and collect
any specified percentage, and that said DOC can make their own percentage up
and no court can touch their decision because its solely upon .DOC to take
whatever percentage it desires to take. HOWEVER, when I quoted 309.465 it
eliminated any argument the DOJ could make. The DOC and DOJ, to this date, have
not made any statement about my assertion that 309.465 controls their taking
25% of money. You see, a statute controls administrative codes and
administrative codes control IPM and DAI policy making authority. No adm. code
or policy can conflict with any state statutes. 227.10.
The entire reason I determined
a declaratory judgment was needed, was because 309.45.02 runs contrary to
309.465 and 973.045, 973.05 and 973.06. Any attack on policies or codes has to
run through 227.40 declaratory judgment proceedings, which is why the Judge,
Shelley Gaylord, found DOC taking 50% was illegal as it runs contrary to
309.465 and 973.05, and then she determined that irreparable harm would be
caused if 309.465.02 was left in place so she --issued the injunction.
The whole reason why she
determined this action was also a cert. action was based on AAG Rice's dumb ass
assertions that only a cert. can challenge a DCC decision. I argued that
certiorari was an ineffective remedy in light of on point statutory authorities
in 227.40 and 813.40. Further, that certiorari lies when there is no other
available remedy at law. I also argued that if this action had to be
certiorari, that the brief, petitions and documents filed by Kerby are the
administrative record so the judge could still move forward with the petitions
and simply use certiorari law in the first stage of the proceedings. She opted
to follow that request and we won.
I sought recovery of
every 50% deduction made, that 25% of each deduction must be returned to KERBY
to make him "whole" under the law. I sought recovery of supervision
fees illegally taken and I filed a notice of injury and claim with the AG but
for some odd reason the judge determined we did-none of that. Order a copy of
the action from the Dane County Circuit Court and you too will see that everything
was raised.
The best advice I give to
you is for you to wait until KERBY is decided by the Court of appeals. CASE NO.
2018AP0284. File nothing until then. No matter how the court rules, it will
have an effect on you so you need to wait!!
The one person that I
respect and accept any legal speak from is Harlan Richards. He-too has told you
guys to wait for KERBY. That is 100% real deal advice. Save your money and
frustration until KERBY is decided.
I finished the response brief and mailed
it to KERBY on 6-13-18. He will get copies and file it by its due date of
6-21-18. in this "appeal" the DOJ made multiple claims that were
never made in the circuit court and that DOC staff never made in their rulings
on our ICIS'. Now they claim the action itself was illegal, that the judge made
3 mistakes in deciding this. All frivolous claims which 1 had the pleasure of
stepping on when I responded. They claim 301.31 and 301,32 give them authority
to take what they want. Neither supports that. 301/31 deals with
industry inmates and 301.32's only change from act 355 was to add restitution
into the statutory language. Nothing said 50%. Even if it did, my ex post facto
arguments and my argument that act 355 was not determined to be retroactive by
the very legislature that enacted 355. I argue that they did so because they
knew it would implicate ex post facto law.
I argued that collecting
supervision fees was not authorized by DOC policy or adm. Codes and refunds
should be issued to all inmates. I never argued this case from the perspective
that KERBY was the only person effected by DOC 50%. I always used the term,
"every inmate" and I asked the judge to appoint counsel for the
purpose of making this a class action, by separate motion. That motion was
never even addressed because the AG wanted this to be a certiorari. The COA
will have its hands full to sort this all out. I believe we win and that win
will be based on DOC ADM. CODE 309.465 language and authority. The DOC never
repealed 309.465 when it made 309.45.02!!! 309.465 rules out all of the DOJ
arguments because the agency only has the authority to act in the manner they
themselves promulgated into law!! 309.465 was promulgated into DOC law in
1986!!!!
( note:this administrative code is cited below)
Please, don't listen
to anyone that tells you to file anything! You will just be frustrated. The DOC
stance is now that you file
an ICI, its untimely since the 309.45.02 policy went into effect in
2016, and they reject the ICI. Rejected
ICI gets appealed to the Warden and that is final. Wait for Kerby to be
decided. If we win Kerby, file your ICI based on the date of its decision!!! DOC
will have to accept it.
Now, to all of you
seeking joinder. FORGET ABOUT IT. As long as a ruling of "certiorari'! stà nds
in place, joinder will not happen. Your JOC,, facts involved in your
deductions, etc, whether they are a match to KERBY or not, will not get the
courts to permit joinder. 803.02(2) appears to 'allow joinder. However, the
judge in KERBY won't allow it and, you'd have q appeal that denial to the COA.
Most persons seeking joinder did not file timely ICIs and exhaust adm.
remedies. I know we should not have to, but that pesky PLRA and 801.02 Wis.
Stats will allow the courts to deny joinder. PRISONERS are held to an entirely
different set of procedures than free world people are. I know we should be
allowed to join Kerby via 803'.62(2) but until one of you
File a timely notice of appeal and litigates that denial, we are all
stuck with 801.02!!!!!!! '
The wà nnabes keep
harping about filing this and filing that. Use your best judgment. Listen to
the people that WIN actions, not the ones who have nothing better to do than
"appear" to be intelligent. Without administrative exhaustion of your
claims, you have no legal options unless you meet stringent criteria for your
failures. This article is meant to provide you with an update on KERBY and a
notice to all of you that have not exhausted your remedies that you will not
get relief unless you exhaust. It's also to let everyone know that a lot of
people have their On opinions" on this and to you guys that hear those opinions,
I say this ... what did the opinion giver win? KERBY? No, that was me. HOWARD?
NO, that was Josh. Anyone else? Hmm.
As for the OCI certified
jailhouse lawyer's advice? He missed the point too. I did not see 309.465 in
his writings. All I see is his opinions on what me win means and what Josh’s
win means and his U.S. Supreme Court cites about due process and equai
treatment, which are already addressed in KERBY. Simply restating what has
already been done by a winner, is borderline plagiarism. DO YOUR, LEGAL
RESEARCH BEFORE you give out advice people!!!
And here is the Administrative code Mataya says governs the suit and what the DOC likes to forget:
Wisconsin DOC administrative Code 309.465 Crime victim and witness assistance
surcharge. For an inmate who committed a crime on or after
October 1, 1983, and who has not paid the crime victim and witness assistance
surcharge required under s. 973.045, Stats., upon transfer to the first
permanent placement and in all subsequent placements in correctional
institutions, the institution business office shall deduct 25% of all income
earned by or received for the benefit of the inmate until the surcharge is paid
in full. The business office shall forward the funds to the state treasurer to
satisfy the surcharge in accordance with s. 973.045, Stats.