Wisconsin's Prison Litigation Reform Act held constitutional.

Byline: David Ziemer

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."

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...