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No.                                             95-0079
                                                STATE OF WISCONSIN                IN COURT OF APPEALS
DISTRICT IV
LYDIA SANTIAGO, AS PERSONAL REPRESENTATIVE OF
THE ESTATE OF JAIME SANTIAGO,
Plaintiff-Respondent,
v.                                              ERRATA SHEET
KATHLEEN WARE, WAYNE MIXDORF, TODD ZANGL
AND DENNIS DANNER,
                                                Defendants-Appellants.
                                                Marilyn L. Graves                 Peg Carlson
                                                Clerk of Court of Appeals         Chief Staff Attorney
                                                231 East, State Capitol           119 Martin Luther King Blvd.
Madison, WI                                     53702                             Madison, WI   53703
                                                Court of Appeals District I       Court of Appeals District II
                                                633 W. Wisconsin Ave., #1400      2727 N. Grandview Blvd.
Milwaukee, WI                                   53203-1918                        Waukesha, WI    53188-1672
                                                Court of Appeals District III     Court of Appeals District IV
                                                740 Third Street                  119 Martin Luther King Blvd.
                                                Wausau, WI    54403-5784          Madison, WI   53703
Jennifer Krapf                                                                    Hon. Moria Krueger
                                                Administrative Assistant          Dane County Courthouse
                                                119 Martin Luther King Blvd.      210 Martin Luther King, Jr. Blvd.
                                                Madison, WI   53703               Madison, WI 53709
                                                Judith Coleman Nispel             Lawrence Bensky
                                                Trial Court Clerk                 Melanie Cohen
                                                Dane County Courthouse            La Follette Sinykin
                                                210 Martin Luther King,Jr.Blvd.   P.O. Box 2719
                                                Madison, WI 53709                 Madison, WI 53701-2719




No.   95-0079
Stephen J. Nicks
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707
PLEASE TAKE NOTICE that the attached pages 37 through 41 are
to be substituted for pages 37 through 41 in the above-captioned opinion which
was released on September 30, 1996.
Dated this 13th day of December, 2006.
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No.   95-0079
Santiago received a ten-day extension of his mandatory release date and a
referral to the program review committee which resulted in termination of CRC
status.   Santiago failed to seek judicial relief by way of certiorari.   Instead, he
proceeded directly to the § 1983 and negligence action before us.
The Irby court held that certiorari review provided an adequate
remedy for Irby's loss of earned good time because the circuit court can order
restoration of any lost good time and can expunge the prisoner's disciplinary
record.  Id. at 847, 522 N.W.2d at 15.  We see no reason why certiorari would not
be equally available to remedy the wrongful ten-day extension of Santiago's
mandatory release date.    As in Irby, expungement could be ordered by a
certiorari court.1
IV.
STATE CLAIMS
Public employees are immune from personal liability for injuries
resulting from the negligent performance of a discretionary act within the scope
of the individual's public office.   C.L. v. Olson, 143 Wis.2d 701, 710, 422 N.W.2d
614, 617 (1988).   A discretionary act is one that involves choice or judgment.
Kimps v. Hill, 200 Wis.2d 1, 23-24, 546 N.W.2d 151, 161 (1996) (quoting United
States v. Gaubert, 499 U.S. 315, 325 (1991)).
An exception to immunity exists for ministerial acts.   Kimps v.
Hill, 187 Wis.2d 508, 513, 523 N.W.2d 281, 284 (Ct. App. 1994), aff'd, 200 Wis.2d
1, 546 N.W.2d 151 (1996).   A public employee's duty is ministerial "only when it
is absolute, certain and imperative, involving merely the performance of a
specific task when the law imposes, prescribes and defines the time, mode and
occasion  for  its  performance  with  such  certainty  that  nothing  remains  for
judgment or discretion."   Lister v. Board of Regents, 72 Wis.2d 282, 301, 240
N.W.2d 610, 622 (1976).  Whether a duty is ministerial is a question of law which
1  Having disposed of the issues on other grounds, we do not decide whether the
rehearing held in February 1993 before Danner was a complete cure for any constitutional
deprivation that occurred during the first hearing.
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No.   95-0079
we review without deference to the trial court.   Larsen v. Wisconsin Power &
Light Co., 120 Wis.2d 508, 516, 355 N.W.2d 557, 562 (Ct. App. 1984).   The state
does  not  challenge  the  court's  findings  that  the  defendants  negligently
performed their duties.
We   turn   first   to   Ware's   claimed   immunity.2                                           Santiago
acknowledges that a decision to classify an offense as major or minor involves
choice "in some cases," and is therefore discretionary.   He argues, however, that
Ware had a ministerial duty to look first at the list of offenses automatically
classified as major under WIS. ADM. CODE § DOC 303.68(3) to see if it included
the offenses charged against him.   Citing Lister v. Board of Regents, Santiago
contends the automatic major provision limits choice and imposes a duty with
such certainty that nothing remains for judgment or discretion.
In Lister, University of Wisconsin law students sued a university
official, alleging he had negligently performed a ministerial duty of determining
their residency status.  Lister, 72 Wis.2d at 288-89, 240 N.W.2d at 616.  The court
reviewed the official's duties under the relevant statutes.
Section 36.16(1)(a) provided that "a bona fide resident of the state
for one year next preceding the beginning of any
semester  for  which  such  student  registers  at  the
university ... shall while he continues a resident of
the state be entitled to exemption from nonresident
tuition."    Under sec.  36.16(3), in determining bona
fide residence, several activities of the student "shall
be considered."    However, a student from another
state who was in this state "principally to obtain an
education"  was  not  to  be  considered  to  have
established  a  residence  in  Wisconsin  by  virtue  of
attendance at educational institutions.
2  Prior to trial, the court granted Ware summary judgment on Santiago's negligence
claim on the ground that she had discretionary immunity.  In its statement of the case, the
State  says  this  decision  was  reconsidered.    We  have  been  unable  to  locate  such  a
reconsideration.   Nonetheless, we deem Ware to have waived the summary judgment
decision in her favor.
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No.   95-0079
Id. at 301, 240 N.W.2d at 622.   The court held, "The statute did not prescribe the
classification  process  with  such  certainty  that  nothing  remained  for  the
administrative officer's judgment and discretion."  Id. (emphasis added).
Like the official in Lister, Ware engaged in a classification process.
Ware exercised judgment in selecting and applying the relevant provisions of
the administrative code to the facts presented.   We reject Santiago's portrayal of
the automatic classification as a threshold ministerial decision required for the
later exercise of choice or judgment to determine if a non-automatic offense is
major or minor.  The classification determination is itself the result of choice and
judgment, not a prerequisite.
The administrative code establishes a process for the classifying
prison offenses as major or minor.  Ware first had to review the appropriateness
of the charges.   WIS. ADM. CODE § DOC 303.67(3).   For a minor offense, she
could have dismissed the conduct report if the inmate was either unfamiliar
with the rule, had not violated recently the same or a closely related rule, was
unlikely to repeat the offense if warned or counseled, or the purposes of the
prison disciplinary code would not be furthered by writing a conduct report.
WIS. ADM. CODE §§ 303.67(3)(a) and 303.65.   Ware had to strike offenses not
supported by the facts alleged, or could add offenses supported by the facts.
WIS. ADM. CODE  §§ 303.67(3)(b)-(c).    She could refer the conduct report for
further investigation.   WIS. ADM. CODE § DOC 303.67(3)(e).   After completing
this review, involving judgment and choice, Ware then was required to "divide
all remaining conduct reports into major and minor offenses."   WIS. ADM. CODE
§ DOC 303.67(4).
That Ware may have been required to exercise her judgment, or
that  she  may  have  done  so  wrongly,  does  not  transform  her  exercise  of
judgment into a ministerial act.   See Lister, 72 Wis.2d at 302, 240 N.W.2d at 622.
Ware's exercise of judgment was an act of discretion.
Santiago  argues  that  both  Zangl  and  Danner  had  a  non-
discretionary duty to look at the waiver form to see if there had been a proper
waiver.3    An  evaluation  of  Santiago's  waiver  form  required  analysis  and
3  Santiago does not argue that Zangl had a non-discretionary duty to stop the waiver
hearing even if, as the trial court found, Santiago voiced his objections to Zangl and
requested a due process hearing.   The State challenges that finding as clearly erroneous.
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No.   95-0079
judgment.  The box indicating Santiago waived his right to a formal due process
hearing  had  been  checked,  then  crossed  out.     Interpreting  the  resulting
composite  mark  required  judgment.    Moreover,  as  Santiago  states  in  his
recitation of facts, "[Zangl] did not ask Santiago about the incomplete waiver
form, or whether he intended to waive his right to a formal due process hearing.
There is no rule or regulation requiring hearing officers to verify that an inmate
has waived his due process rights before holding a waiver hearing."   Thus, it
can hardly be said that the law imposed a duty upon Zangl that was "absolute,
certain and imperative."
As to Danner, we again reject Santiago's attempt to isolate the
evaluation of his waiver form from Danner's responsibilities as appeal officer.
WISCONSIN ADM. CODE § DOC 303.76(7)(b) requires appeal officers to "review
all records and forms pertaining to the appeal and make his or her decision
within 10 days following receipt of the request."   A review of the entire record
on appeal involves judgment.    As with Ware, that Danner may have been
required to exercise judgment or that he did so wrongly does not transform his
duties from discretionary to ministerial.
We need not reach that issue.
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