119 N.W.2d 460 (Wis. 1963), Tyler v. State Dept. of Public Welfare

• Citation: 119 N.W.2d 460, 19 Wis.2d 166
• Opinion Judge: The opinion of the court was delivered by: Fairchild
• Party Name: James C. TYLER, Petitioner-Appellant, v. STATE DEPARTMENT OF PUBLIC WELFARE, Respondent.
• Attorney: Anderson, Bylsma & Eisenberg, by Donald S. Eisenberg, Madison, for appellant.
• Case Date: February 13, 1963
• Court: Wisconsin Supreme Court

Page 460

119 N.W.2d 460 (Wis. 1963)

19 Wis.2d 166

James C. TYLER, Petitioner-Appellant,

v.

STATE DEPARTMENT OF PUBLIC WELFARE, Respondent.

Supreme Court of Wisconsin.

February 13, 1963

Page 461

[Copyrighted Material Omitted]

Page 462

Mandate Filed Feb. 5, 1963.

Anderson, Bylsma & Eisenberg, by Donald S. Eisenberg, Madison, for appellant.

John W. Reynolds, Atty. Gen., William A. Platz., Asst. Atty. Gen., Madison, for respondent.

FAIRCHILD, Justice.

1. Timeliness of proceedings for review. The attorney general points out that there has been no formal refusal to parole petitioner, within 30 days before service of his petition for review or at any other time. In view of our conclusion that refusal to parole is not reviewable [19 Wis.2d 168] under secs. 227.15 to 227.21, Stats., inclusive, it is unnecessary to determine whether the present proceedings would be timely.

2. Do secs. 227.15 to 227.21, Stats., inclusive, authorize proceedings to review a refusal to parole?

Sec. 227.15, Stats., provides in pertinent part:

'Administrative decisions, which directly affect the legal rights, duties or privileges of any person, whether affirmative or negative in form * * * shall be subject to judicial review as provided in this chapter * * *.'

Decisions of the department of public welfare are not excepted. ¹

Thus the basic question is whether a prisoner's interest in being paroled is a legal right or privilege within the meaning of sec. 227.15, Stats. If not such legal right or privilege, an administrative decision not to parole is not reviewable under sec. 227.15ff.

Statutory and administrative provisions for parole.

Sec. 57.06(1)(a), Stats., provides:

'The department [of public welfare] may parole an inmate of the Wisconsin state prison * * * when he has served 20 years of a life term, less the deduction earned for good conduct as provided in s. 53.11. * * *'

The statutes contain no provisions fixing standards upon fulfillment of which an inmate is entitled to be paroled, although there are two conditions, in addition to service of a specified portion of the sentence, which must be met before the department is authorized to parole. ²

[19 Wis.2d 169] There are no statutory provisions governing the application for parole nor requiring a hearing thereon. The statutes do not provide for a parole board. The powers of the department are vested in the director, to be exercised under rules which he establishes with the approval of the state board of public welfare. ³

The parole board is governed by an administrative order of the director. The parole board consists of the director of the division of corrections and three full-time civil service members. The board is required to conduct hearings on applications for parole, and to follow a manual entitled Parole Board Procedures and Practices. The order states that the director of the department is the final authority and that

Page 463

the board is to make recommendation to him in an advisory capacity. We take judicial notice of both order and manual.

Although the administrative order and the manual refer to a hearing of an application, it is clear that this does not have the attributes of a hearing required for judicial or quasi-judicial determinations of rights. An applicant is to appear personally. Attorneys and others who desire to support the application are not permitted to appear at the hearing, although they may write to or see the board at its offices in Madison. It is clear that much of the information before the board is not available to the application. ⁴

[19 Wis.2d 170] It is also clear that the standards which the board is to follow require the balancing of many considerations and necessarily involve highly discretionary evaluations of the applicant's character and susceptibilities upon the basis of personal observation as well as information contained in the file. Thus in the introduction to the manual it is said:

'The long range interest of society as well as the individual demand a parole process which results in release at that moment when the institutionalization has accomplished its constructive purpose and before progress made is lost to the many negatives associated with prolonged confinement.

'This means that at times persons are tried on parole when it is recognized there is some risk of violation of the condition of parole, but only when that risk, in the judgment [sic] of those trained and experienced in the field of corrections does not involve a threat to society and is less than it would be if confinement continued indefinitely.

'In all decisions with respect to parole the best interests of the public set the limits within which the interests of the individual inmate and his family are considered.'

A portion of the manual is entitled 'Philosophy of and Specifications for Parole Determination.' ⁵ Relevant portions are:

'3. Basic Aspects of Parole

'Determination of the eligibility for parole of an offender must be made in relation to five fundamental viewpoints:

[19 Wis.2d 171] '(a) Legal requirements;

'(b) Existence of an adequate field staff for necessary supervision;

'(c) The response which the individual will make to parole;

'(d) The reaction of the community to which the man will be returned upon parole, and

'(e) The protection of society from the type of offense for which the individual was placed in institution custody.

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'4. Factors Bearing on Readiness of Individual for Parole

'(a) Biographical

'Family and marital history;

'Associates;

'Habits (including alcoholic and drug addiction);

'Work record;

'Educational achievement;

'Military record;

'Religious interests;

'Attitude toward self as a person;

'Attitude toward return to family, industrial and social life of the community;

'Attitude toward offense;

'Understanding of the motivating factors involved in his offense; and

'Length and severity of development or criminal record.

'(b) Physical and Mental Health

'Evaluation as a factor in relation to rehabilitation.

'(c) Social

'Ability of individual to meet problems and challenges implicit in a return to community life.

'(d) Record in Institution

'Participation in institutional programs, such as AA, group and individual therapy, trade training, religious, recreation, and leisure time activities;

'Sincerity of interest in assignment; and [19 Wis.2d 172] Conduct within institution including attitude toward authority.

'5. Factors Bearing on Acceptability of Individual by the Community.

'(a) Character of the offender, nature and location of the offense;

'(b) Length of sentence and time served;

'(c) Reputation in the community;

'(d) Employment resources;

'(e) Community attitude toward the individual as expressed by press, courts, law enforcement agents, and citizens in general; and

'(f) Closeness of family ties and availability of family or other support.

'6. Factors Bearing on Timing of Parole

'(a) Readiness to accept responsibility of parole;

'(b) Sufficiency of parole plans, availability of adequate Departmental parole field service or other public or private services;

'(c) Possible adverse effect upon prison morale; and

'(d) Community attitude.

'7. Factors of Safety of Society

'Evaluation of potential danger to society (particularly whether the personal safety of any member of society might be placed in jeopardy.)'

It is also clear that parole grants only a limited freedom. Sec. 57.06(3), Stats., provides in part:

'Every paroled prisoner remains in the legal custody of the...