David Marshall v. Kevin A. Carr

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT IV
October 21, 2021
To:
Hon. Richard G. Niess
Circuit Court Judge
Electronic Notice
Carlo Esqueda
Clerk of Circuit Court
Dane County Courthouse
Electronic Notice
Brian Keenan
Electronic Notice
Steven C. Kilpatrick
Electronic Notice
David Marshall 354701
Stanley Correctional Inst.
100 Corrections Dr.
Stanley, WI 54768
You are hereby notified that the Court has entered the following opinion and order:
2020AP1156 State of Wisconsin ex rel. David Marshall v. Kevin A. Carr
(L.C. # 2018CV1287)
Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.
Summary disposition orders 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).
David Marshall, pro se, appeals a circuit court order that dismissed his petition for a writ
of certiorari review of a decision by the Secretary of the Department of Corrections.1 Marshall
challenges the department’s deduction of funds from his prison account at an increased rate of
fifty percent. Based on our review of the briefs and the record, we conclude at conference that
1 The caption of this appeal has been changed to reflect the name of the current Secretary.

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this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21(1) (2019-20).2
We affirm.
Marshall initiated this matter by filing an internal inmate complaint. The complaint was
dismissed. Marshall sought an administrative appeal in the office of the Secretary, and that
appeal was also dismissed. Marshall then filed his petition for certiorari review in the circuit
court and, as noted, the circuit court dismissed the petition.
We affirm the circuit court for two reasons. Either of these reasons would alone be
sufficient to affirm.
First, Marshall fails to make a developed argument on appeal. Although we make some
allowances for pro se litigants, “[w]e cannot serve as both advocate and judge” by developing
arguments for them. See State ex rel. Harris v. Smith, 220 Wis. 2d 158, 165, 582 N.W.2d 131
(Ct. App. 1998); see also M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct.
App. 1988) (declining to consider an “unexplained and undeveloped” argument). Marshall’s
brief-in-chief is two pages. It contains no citations to legal authority or to the record, and it lacks
a coherent explanation of Marshall’s grounds for challenging the deduction of funds from his
prison account. Marshall’s reply brief includes a handful of citations, but it too lacks developed
argument. Further, “[i]t is a well-established rule that we do not consider arguments raised for
the first time in a reply brief.” Bilda v. County of Milwaukee, 2006 WI App 57, ¶20 n.7, 292
Wis. 2d 212, 713 N.W.2d 661.
2 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

No. 2020AP1156
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Second, for the reasons we explain in this paragraph, we conclude that Marshall has
forfeited the argument he makes on appeal.3 Marshall states in his brief-in-chief that his
challenge to the deduction of funds from his prison account presents a due process question and,
in his reply brief, Marshall pointedly states that his challenge is based on his state and federal
constitutional rights to due process. However, Marshall did not present his challenge as a due
process claim in his internal inmate complaint or his administrative appeal. “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. Additionally,
Marshall did not present his challenge as a due process claim in his petition for a writ of
certiorari or his initial circuit court brief. Rather, the record shows that Marshall referenced due
process for the first time in his circuit court reply brief, and even then he did not present a
developed due process argument. Accordingly, Marshall not only failed to raise due process
before the agency but also failed to timely and sufficiently raise it in the circuit court. See State
v. Eugene W., 2002 WI App 54, ¶13, 251 Wis. 2d 259, 641 N.W.2d 467 (In order to avoid
forfeiting an issue, “a party must raise [it] with sufficient prominence such that the trial court
understands that it is called upon to make a ruling.”).4 For all of these reasons, we conclude that
Marshall forfeited his due process argument.
Therefore,
3 As a general rule, we do not consider forfeited arguments, see Bunker v. LIRC, 2002 WI App
216, ¶15, 257 Wis. 2d 255, 650 N.W.2d 864, and Marshall provides us with no compelling reason to
depart from the general rule here.
4 Not surprisingly, given Marshall’s failure to clearly present a due process argument in the
circuit court, the circuit court’s decision did not address due process.

No. 2020AP1156
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IT IS ORDERED that the circuit court’s order is summarily affirmed pursuant to WIS.
STAT. RULE 809.21(1).
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals