Douglas Balsewicz v. Christopher Blythe

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1762 Cir. Ct. No. 2022CV7683

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN EX REL. DOUGLAS BALSEWICZ,

PETITIONER-APPELLANT,

V.

CHRISTOPHER BLYTHE,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Colón, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1762

¶1 PER CURIAM. Douglas Balsewicz appeals from the order of the
circuit court affirming the decision of Christopher Blythe, the Chairperson of the
Wisconsin Parole Commission to rescind his grant of parole. Balsewicz filed a
petition of certiorari for judicial review arguing that Chairperson Blythe failed to
act according to law when he rescinded his grant of parole and that the decision
was arbitrary and capricious, representing Chairperson Blythe’s will and not his
judgment, and not based upon substantial evidence. Upon review, we affirm.

BACKGROUND

¶2 Balsewicz was convicted of murdering his wife, Johanna Balsewicz,
after he broke into her residence, while they were separated and living apart, and
stabbed her forty-two times in June 1997. Their four-year-old son and two-year-
old daughter, referred to here as N.B., were asleep in the house at the time.1 The
court imposed an eighty-year sentence for his conviction for second-degree
intentional homicide and burglary while armed with a dangerous weapon.
Balsewicz’s mandatory parole release date is October 2, 2050.

¶3 Balsewicz first became eligible for parole in May 2017; the
Commission considered a grant of parole five times between 2017 and 2022. In
April 2022, a commissioner, with consideration of Balsewicz’s satisfactory
conduct, having no unmet treatment needs, support from his family and friends,
but noting the opposition of family members of the victim, recommended a grant
of parole. On April 27, 2022, John Tate, then Chairperson of the Wisconsin

1
We refer to the victim’s daughter by initials to “protect the privacy and dignity interests
of crime victims,” in accordance with WIS. STAT. RULE 809.86 (2021-22). All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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Parole Commission, approved the recommendation and granted parole effective
May 17, 2022, with release to follow thirty days from the issuance of the grant.

¶4 On May 13, 2022, Chairperson Tate received a letter from
Wisconsin Governor Tony Evers urging him to reconsider his decision after
members of the victim’s family appealed directly to the governor. The governor’s
letter referenced WIS. ADMIN. CODE § PAC 1.07(7) (Dec. 2011),2 which provides
that the Commission can rescind a grant of parole “[i]f there is a change in
circumstances … subsequent to the issuance of a parole grant or release to
extended supervision order but prior to release[.]” The governor’s letter requested
the Commission to consider whether additional victim input would affect the
parole decision.

¶5 Chairperson Tate and the Commission then sent a Notice of
Rescinded Parole Grant and Statement of Hearing Rights on May 19, 2023, stating
that Balsewicz’s parole was rescinded for a change of circumstance. This notice
explained that the victim’s daughter, N.B., had not been notified, invited to offer
an impact statement, or invited to attend the meeting considering his parole. There
was an oversight in the notification process by which minor victims are not
automatically invited to register for parole notification and to exercise statutory
rights upon reaching adulthood. N.B. was a minor at the time the offense was
committed; as an adult, she had not been invited to the victim notification system.
Chairperson Tate concluded the assessment of whether Balsewicz had served
sufficient time to not depreciate the seriousness of the offense had to be

2
All references to the Wisconsin Administrative Code are to the December 2011 version
unless otherwise noted. We note that there have been no changes to WIS. ADMIN. CODE
§ PAC 1.07 since 2011 and this was the version in effect during Balsewicz’s parole proceedings.

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reevaluated in the context of receiving victim feedback from N.B. or the ample
opportunity for her, or other statutory victims, to provide feedback.

¶6 Balsewicz requested a hearing on Chairperson Tate’s decision,
which was held before Bryan K. Hayes, an administrative law judge (ALJ) and
Administrator of the Division of Hearings and Appeals (DHA), in August 2022.
In September 2022, Administrator Hayes issued a decision that recommended
sustaining Chairperson Tate’s rescission of the grant of Balsewicz’s parole based
on inadequate victim notification procedures, finding that there was a change of
circumstances justifying Chairperson Tate’s decision to rescind the grant of
parole. In October 2022, the new Chairperson, Christopher Blythe, issued the
final decision adopting and incorporating the recommendations of Administrator
Hayes, and concluding that rescission of Balsewicz’s grant of parole was required.

¶7 Balsewicz filed a petition for writ of certiorari in December 2022,
for judicial review of the decision rescinding the grant of his parole. The circuit
court affirmed Chairperson Blythe’s decision in August 2023.

¶8 Balsewicz now appeals.

DISCUSSION

¶9 On certiorari review of a parole rescission, the appellate court
reviews the chairperson of the Wisconsin Parole Commission’s decision, not that
of the circuit court. State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶34, 353
Wis. 2d 307, 845 N.W.2d 373. The appellate court’s scope of review is limited to
whether the chairperson: (1) kept within the Commission’s jurisdiction; (2) acted
according to law; (3) whether the chairperson’s “action was arbitrary, oppressive
or unreasonable and represented [] will and not [] judgment”; and (4) whether “the

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evidence was such that it might reasonably make the order or determination in
question.” State ex rel. Purifoy v. Malone, 2002 WI App 151, ¶13, 256 Wis. 2d
98, 648 N.W.2d 1. These four inquiries are questions of law that we review
independently. State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶10, 256
Wis. 2d 787, 650 N.W.2d 43.

¶10 Balsewicz appeals on multiple grounds: he asserts that Chairperson
Blythe did not act according to law or within his jurisdiction, and he contends that
Chairperson Blythe’s decision was arbitrary and not supported by substantial
evidence. Balsewicz also raises multiple new arguments for the first time in this
appeal, we decline to address the merits of those forfeited arguments. See State ex
rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 678, 556 N.W.2d 136 (Ct. App.
1996) (explaining that issues raised for the first time on appeal are generally not
addressed). We discuss Balsewicz’s forfeited arguments after our analysis of the
arguments properly within our review.

¶11 First, we address whether Chairperson Blythe stayed within the
Commission’s jurisdiction and acted according to law when he issued the final
decision rescinding Balsewicz’s parole. The administrative procedure to rescind a
parole grant required by a change of circumstances is governed by WIS. ADMIN.
CODE § PAC 1.07(7). It provides:

If there is a change in circumstances, requiring a denial of
the grant or order, subsequent to the issuance of a parole
grant or release to extended supervision order but prior to
release, the inmate shall be provided written notice of the
reasons for rescission and a summary of the evidence
supporting the reasons for rescission. The inmate shall be
given an opportunity to appear and be heard by an impartial
hearing examiner from the division of hearings and appeals
in the department of administration. At the hearing the
inmate shall be given the right to present witnesses and
evidence which are material, relevant, and not unduly
repetitious, the right to confront and cross-examine

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witnesses against the inmate, the right to receive a written
statement of the evidence relied upon, and the right to be
represented by counsel. After a review of the findings of
fact, conclusions of law, and recommendation of the
hearing examiner, the chairperson shall make a final
decision.

¶12 Chairperson Blythe argues that he had authority to rescind the grant
of parole, he used a proper legal standard, and Balsewicz was afforded procedural
protections under the administrative rules. Balsewicz argues that any systemic
failures in victim notification procedures for minor victims did not constitute a
change of circumstances requiring rescission.

¶13 Resolving this issue requires us to interpret WIS. ADMIN. CODE
§ PAC 1.07(7). “The interpretation of an administrative rule or statute presents a
question of law subject to independent appellate review.” State ex rel. Griffin v.
Smith, 2004 WI 36, ¶18, 270 Wis. 2d 235, 677 N.W.2d 259. 3 “We interpret an
administrative regulation using the rules of statutory interpretation.” Piper v.
Jones Dairy Farm, 2020 WI 28, ¶13, 390 Wis. 2d 762, 940 N.W.2d 701. “As a
general rule, courts apply the ordinary and accepted meaning of language in
statutes unless it leads to an absurd result.” Seider v. O’Connell, 2000 WI 76,
¶32, 236 Wis. 2d 211, 612 N.W.2d 659 (citation omitted). “If the meaning of the
statute is plain, we ordinarily stop the inquiry.” Id., ¶43. Accordingly, we look at

3
Because Balsewicz’s petition was brought under common law certiorari, we decline to
address whether any deference was owed to Chairperson Blythe and the Commission’s decision.
See Amazon Logistics, Inc. v. LIRC, 2023 WI App 26, ¶23, 407 Wis. 2d 807, 992 N.W.2d 168
(“[T]his court has not consistently applied the principle of due weight asserted in Tetra Tech in
cases in which the review of an agency decision is not governed by WIS. STAT. ch. 227.”); see
also Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶106, 382 Wis. 2d 496, 914 N.W.2d 21; Coleman
v. Percy, 96 Wis. 2d 578, 588, 292 N.W.2d 615 (1980) (“[R]efusal to grant parole may be
reviewed by common law certiorari.”).

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the plain language of § PAC 1.07(7) to determine its meaning. See Piper, 390
Wis. 2d 762, ¶13.4

¶14 At its ordinary meaning, WIS. ADMIN. CODE § PAC 1.07(7) provides
a process by which the Commission reacts to a change of circumstances requiring
rescission of a parole grant before an inmate has been released, but after parole has
been granted.5 Further, the rule provides the chairperson with the final authority
over the decision when a change of circumstances requires rescission. Neither the
rules nor the underlying statues under which these rules were promulgated, WIS.
STAT. §§ 227.11(2), 304.06(1)(e), and 304.06(1)(em), provide factors or criteria
for evaluating what constitutes a change of circumstances requiring rescission.
Further, we note that both sections under ch. 304 discuss victim notification and
input. Section 304.06(1)(em) provides that the Commission “shall promulgate

4
Although Balsewicz objected to the Commission’s interpretation of the change of
circumstances rule in WIS. ADMIN. CODE § PAC 1.07(7), he did not develop an argument that the
rule conflicted with the statutes. For the first time on appeal, he reaches some of these
arguments; however, we decline to develop or address arguments not raised before the
administrative agency. See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 678, 556
N.W.2d 136 (Ct. App. 1996).
5
This court is also guided by any previous published decisions on this rule. In the only
published decision discussing the rescission for change of circumstances in WIS. ADMIN. CODE
§ PAC 1.07, this court concluded that under the facts of that case, it would neither determine the
meaning of “circumstances” that would require a parole rescission nor would we “otherwise
consider possible substantive limitations on a chairperson’s parole rescission authority.” State ex
rel. Purifoy v. Malone, 2002 WI App 151, ¶20 n.9, 256 Wis. 2d 98, 648 N.W.2d 1. Although
Chairperson Blythe advocates that this decision means there are no limitations, we understand
State ex rel. Purifoy as deciding that the meaning of change of circumstances did not need to be
determined to resolve that case. However, as all of Balsewicz’s arguments for substantive
limitations were made for the first time on appeal, we decline to address his arguments on
limitations beyond his position that the failure to notify N.B. did not require rescission. See State
ex rel. Rothering, 205 Wis. 2d at 678.

We note that State ex rel. Purifoy discussed the January 1993 version of the change of
circumstances provision of the Commission’s administrative code.

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rules that provide a procedure to allow any person who is a victim, or a family
member of a victim … to have direct input in the decision-making process for
parole” for crimes including second-degree intentional homicide, of which
Balsewicz was convicted. Therefore, we agree with Chairperson Blythe’s position
that the change of circumstances requiring rescission was satisfied by the failure in
victim notification, specifically for N.B.

¶15 With that understanding of the PAC rule, we examine the record to
determine whether Chairperson Blythe acted according to law and stayed within
the Commission’s jurisdiction. The record reflects that Balsewicz received a
written notice of the rescission setting forth Chairperson Tate’s reasons for
initially rescinding the grant—namely the failure to provide N.B. an opportunity to
offer input to the Commission on Balsewicz’s parole request. The notice also
explained a gap in the administration of victim notification. Balsewicz received a
hearing on August 18, 2022, before a DHA ALJ. The ALJ stated the standards for
rescission for a change of circumstances and his status as an impartial examiner.
The ALJ heard testimony from Chairperson Tate and Elizabeth Lucas, the director
of the Department of Corrections (DOC) Office of Victim Services and Programs.
Then Chairperson Blythe reviewed the ALJ’s written decision, which thoroughly
discussed the facts related to the change of circumstances as well as the legal basis
for the rescission, and recommended that the parole grant be rescinded.
Chairperson Blythe made the final decision to rescind the parole grant.

¶16 We conclude that Balsewicz was accorded the proper legal process
set forth in the administrative code for rescission required by a change of
circumstances. The record reflects that Chairperson Blythe considered the facts,
legal conclusions and recommendation of the impartial hearing examiner.
Chairperson Blythe exercised the final decision in the matter. Therefore, we

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conclude that Chairperson Blythe acted according to the law and did not exceed
his jurisdiction when he decided to rescind Balsewicz’s parole.

¶17 Second, we address whether Chairperson Blythe’s decision was
arbitrary, representing his will and not his judgment, and whether there was
substantial evidence to support his decision. Balsewicz argues that political
pressure from the governor influenced Chairperson Blythe’s decision making it
arbitrary and unreasonable. He also argues there was no evidence of a “change in
circumstances” that required rescission. We conclude that these arguments are not
supported by the record.

¶18 “An agency’s decision is not arbitrary and capricious and represents
its judgment if it represents a proper exercise of discretion.” Von Arx v. Schwarz,
185 Wis. 2d 645, 656, 517 N.W.2d 540 (Ct. App. 1994). An exercise of
“discretion is a reasoning process” based on consideration of relevant facts and
reasonable inferences of those facts “‘and a conclusion based on a logical rationale
founded upon proper legal standards.’” Van Ermen v. DHSS, 84 Wis. 2d 57, 65,
267 N.W.2d 17 (1978) (citation omitted).

¶19 On certiorari review, we do not substitute our judgment for that of
the chairperson and Commission, we inquire only whether substantial evidence
supports their decision. Von Arx, 185 Wis. 2d at 656. “Substantial evidence is
evidence that is relevant, credible, probative, and of a quantum upon which a
reasonable fact finder could base a conclusion.” Cornwell Personnel Assocs.,
Ltd. v. LIRC, 175 Wis. 2d 537, 544, 499 N.W.2d 705 (Ct. App. 1993). This court
is not in the position to weigh the evidence in a rescission case and “may not
substitute its view of the evidence for that of the [chairperson].” Van Ermen, 84
Wis. 2d at 64. If there is substantial evidence, “we must affirm even though there

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is evidence that may support a contrary determination.” State ex rel. Warren v.
Schwarz, 211 Wis. 2d 710, 726, 566 N.W.2d 173 (Ct. App. 1997), aff’d, 219
Wis. 2d 615, 579 N.W.2d 698 (1998).

¶20 The record reflects that during the hearing before the ALJ,
Balsewicz questioned Chairperson Tate on the role of politics and the governor’s
influence over his decision to rescind his parole grant. Chairperson Tate
acknowledged that the governor’s office brought to his attention the failure to
notify N.B. of Balsewicz’s parole request or to offer her an opportunity to provide
input. However, Chairperson Tate also testified that there was a breakdown in the
administrative process to notify victims, such as N.B., who was a minor child at
the time of the offense. Chairperson Tate stated that he believed the notice
problem constituted a change of circumstances warranting rescission of the parole
grant. Director Lucas testified about the procedures by which victims of crimes
sign up for parole notification and explained that there had been no mechanism to
enroll minor victims in notification after they reached adulthood.

¶21 We conclude that Chairperson Blythe’s final decision on rescission
was made upon a rational basis and not an arbitrary or irrational choice. See Van
Ermen, 84 Wis. 2d at 64-65. Chairperson Blythe relied upon the testimony of
Chairperson Tate and Director Lucas. Chairperson Tate testified that one
consideration in granting parole is gathering information to determine whether
parole at this time would depreciate the seriousness of the offense. He also
testified that a parole decision must be evaluated in the context of receiving victim
feedback, or at minimum, providing an opportunity for feedback. Balsewicz
speculates that the governor’s influence turned this rescission into an arbitrary,
political decision. However, his speculation does not negate that Chairperson
Blythe considered the relevant facts in this matter under the proper standards of

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law to determine whether the grant of parole or rescission of parole was required.
Chairperson Blythe’s reasoning process constituted a proper exercise of discretion.
Id.

¶22 Balsewicz also argues that there was no evidence to support
Chairperson Blythe’s decision. We disagree. The record reflects that Chairperson
Blythe had ample, “relevant, credible, [and] probative” evidence upon which he
could base his decision as “a reasonable fact finder.” Cornwell Personnel
Assocs., 175 Wis. 2d at 544. Chairperson Tate’s testimony provided the ALJ and
Chairperson Blythe with a reasonable basis to determine that the failure to notify
N.B. and give her an opportunity to offer input on the parole request was a change
of circumstances that required rescission. Although Balsewicz again speculates
about political influence, there is substantial evidence to support the chairperson’s
decision and “we must affirm even though there is evidence that may support a
contrary determination.” State ex rel. Warren, 211 Wis. 2d at 726.

¶23 Therefore, we conclude that Balsewicz’s claim fails. We affirm the
circuit court’s order sustaining Chairperson Blythe’s decision to rescind
Balsewicz’s parole.

¶24 Finally, we address the arguments that Balsewicz raises for the first
time on appeal, which includes: (1) that he was denied due process by the
Commission’s failure to inform him of the standards for parole rescission, (2) that
WIS. ADMIN. CODE § PAC 1.07(7) is unconstitutional, (3) that § PAC 1.07(7)
violates the due process rights of all putative parolees because it does not require
the “change in circumstances” to be rooted in the criteria for parole under WIS.
ADMIN. CODE § PAC 1.06(16) and be within the prisoner’s control, (4) that § PAC
1.07(7)’s process does not provide for an impartial decision-maker, (5) that having

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the chairperson have sole authority renders all rescission decisions flawed from a
due process standpoint, (6) that the rescission was based on non-statutory criteria,
(7) that the victim notification statutes only require victims be notified before the
first parole hearing and this was the fifth hearing, (8) that victims’ input is only
considered if they request to provide input and that input is timely, (9) that the
Commission did not have jurisdiction to determine whether victim’s rights were
violated or how any violations should be remedied, (10) that the DOC was the
proper agency to review victims’ rights deprivation claims, and (11) that N.B.’s
input would be cumulative to other family opposed to a grant of parole.6

¶25 Chairperson Blythe and the Commission argue that Balsewicz has
forfeited these issues for appellate review by failing to raise them at an earlier
stage in the proceedings. “It is settled law that to preserve an issue for judicial
review, a party must raise it before the administrative agency.” Bunker v. LIRC,
2002 WI App 216, ¶15, 257 Wis. 2d 255, 650 N.W.2d 864. The “inmate bears the
burden of clearly presenting the issue for the record by raising the issue during the
hearing or during the administrative appeal.” State ex rel. Curtis, 256 Wis. 2d
787, ¶18. A failure to raise an issue before an administrative agency generally
forfeits the issue for appellate review. LaBeree v. LIRC, 2010 WI App 148, ¶33,
330 Wis. 2d 101, 793 N.W.2d 77.

¶26 Although the forfeiture rule is “one of administration, not of power,”
the reviewing court may choose to decide issues not raised before the
administrative agency when “all the necessary facts are of record and the issue is a

6
To the extent that we have not listed an argument from Balsewicz, we also conclude
that it is a new argument offered for the first time on appeal and we decline to address it.

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No. 2023AP1762

legal one of great importance[.]” Bunker, 257 Wis. 2d 255, ¶¶15-16. Balsewicz
argues that the issues he presents are purely questions of law without any
additional findings of fact or exercises of discretion. In Bunker, this court chose
“to review Bunker’s claims of error only to determine whether the hearing before
the ALJ violated his right to procedural due process, as he claims.” Id., ¶18. That
is not the situation here. Balsewicz essentially argues that the entire process is
flawed. The appellate review of a certiorari decision is limited in scope. State ex
rel. Purifoy, 256 Wis. 2d 98, ¶13. We decline to apply an exception to our
practice of forfeiting newly raised claims.

CONCLUSION

¶27 For the reasons stated above, we affirm the circuit court order
sustaining Chairperson Blythe’s decision to rescind Balsewicz’s grant of parole.
We conclude that Chairperson Blythe kept within the Commission’s jurisdiction,
acted according to law, was not acting in an arbitrary manner without a rational
basis, and that substantial evidence supported the decision.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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