222 N.W.2d 622 (Wis. 1974), 138, State v. Goulette

Docket Nº:State 138.
Citation:222 N.W.2d 622, 65 Wis.2d 207
Opinion Judge:The opinion of the court was delivered by: Beilfuss
Party Name:STATE of Wisconsin, Appellant, v. William Leo GOULETTE, Respondent.
Attorney:For the appellant there was a brief by Robert W. Warren, attorney general, and Charles R. Larsen, assistant attorney general, and oral argument by William L. Gansner, assistant attorney general.
Case Date:October 29, 1974
Court:Supreme Court of Wisconsin

Page 622

222 N.W.2d 622 (Wis. 1974)

65 Wis.2d 207

STATE of Wisconsin, Appellant,

v.

William Leo GOULETTE, Respondent.

No. State 138.

Supreme Court of Wisconsin.

October 29, 1974.

Page 623

[Copyrighted Material Omitted]

Page 624

Robert W. Warren, Atty. Gen., Charles R. Larsen, Asst. Atty. Gen., Madison, for appellant.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison (Charles E. White, River Falls, of counsel), for respondent.

Walter F. Kelly, Milwaukee, amicus curiae for Wis. Civil Liberties Union Foundation.

BEILFUSS, Justice.

Because the respondent was given a parole hearing in May of 1974 and released on parole in July, 1974, the case is moot. An order of this court either affirming or reversing the judgment appealed from would accomplish nothing insofar as the respondent is concerned. He has had the hearing he sought and he has been granted the affirmative relief he sought. An order of this court deciding the issues on the appeal could in no way affect his present status and the appeal is moot. 1

[65 Wis.2d 212] Even though we have concluded this appeal is moot we deem it advisable to comment upon some of the issues raised because of their possible effect upon subsequent cases.

Page 625

The major issue raised which may be the subject of future concern is whether the Parole Board's recommendation to refuse the granting of a parole is subject to judicial review.

In Tyler v. State Department of Public Welfare (1963), 19 Wis.2d 166, 119 N.W.2d 460, this court held that the refusal of a parole board to grant parole was not judicially reviewable under the Administrative Procedure Act, secs. 227.15 to 227.21, Stats. The State argues that the reasoning and holding of that case should be applied to this case and that review by certiorari should be denied. The respondent, through the State Public Defender, contends that Tyler deals only with procedures provided for in the Administrative Procedure Act and is not authority for a rule that judicial review is not available and that certiorari is available.

The State contends that the fact that a prisoner has no right to parole bears on the broader questions of whether there can be any judicial review of a parole refusal. Both parties cite State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 185 N.W.2d 306, wherein this court concluded that '. . . the basic requirements of due process and fairness require that the department provide a limited hearing. . . . ' to parolees prior to revocation of their parole. We also stated, however at pages 549, 550 of 50 Wis.2d, at page 311, of 185 N.W.2d, that:

'Once having determined that petitioners are entitled to revocation hearing, we deem it advisable to consider the right of review of the department's action in revocation. It is well established in this state that where there are no statutory provisions of judicial review, the action of a board or commission may be reviewed by way of certiorari.

[65 Wis.2d 213] 'We, therefore, hold that petitioner's right of review of a revocation hearing is by certiorari directed to the court of conviction. . . .' 2

The State argues that because there is no right to parole and because there is no taking of anything from the applicant as there is in revocation, the action of the Parole Board is not subject to review by certiorari. This court has never so restricted the availability of the writ. See Marquette Savings & Loan Asso. v. Twin Lakes (1968), 38 Wis.2d 310, 156 N.W.2d 425. We held there that a common-law writ of certiorari was proper to review the purely discretionary refusal of a villege board to grant a liquor license. In that case there was no taking of anything from the applicant and the applicant had no right to a license since the relevant statute provided only that '(e)ach town board, village board and common council may grant retail licenses. . . .' Sec. 176.05, Stats.

The court in Tyler, supra, stated at pages 172, 173, of 19 Wis.2d at page 465, of 119 N.W.2d:

'The general rule is that refusal to parole is not subject to judicial review. The fact that the courts of other states decline to review administrative refusal to parole is not conclusive on the question of whether our statutes make such refusal subject to proceedings for review under sec. 227.15ff, Stats., but their decisions demonstrate that judicial review of such refusal would be unprecedented. We consider them persuasive that 'legal rights . . . or privileges' in sec. 227.15 should not be construed t include a prisoner's interest in parole.

'A general statement appears in 67 C.J.S. Pardons, § 20, pp. 604--605, as follows:

"A parole is a mere matter of grace, favor, or privilege, and a prisoner is not entitled thereto as a matter of right. Subject to the limitations imposed by statute, the question whether a...

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