Scarpelli v. Gagnon

• Citation: 317 F. Supp. 72
• Decision Date: 21 September 1970
• Docket Number: No. 68-C-387.,68-C-387.
• Parties: Gerald H. SCARPELLI, Petitioner, v. John R. GAGNON, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

317 F. Supp. 72

Gerald H. SCARPELLI, Petitioner, v. John R. GAGNON, Respondent.

No. 68-C-387.

United States District Court, E. D. Wisconsin.

September 21, 1970.

William M. Coffey, Milwaukee, Wis., for petitioner.

William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.

OPINION AND ORDER GRANTING WRIT OF HABEAS CORPUS

REYNOLDS, District Judge.

Gerald H. Scarpelli has filed a petition for writ of habeas corpus pursuant to § 2241 et seq., Title 28, United States Code of Laws. The petition challenges the legality of the procedure used to revoke his probation. The petitioner's probation was revoked by the Wisconsin State Department of Public Welfare without affording the petitioner a hearing. The petitioner claims that this action taken against him is in violation of both the due process and equal protection clauses of the Fourteenth Amendment. For the reasons set forth below, I have concluded that the revocation of petitioner's probation without a hearing was impermissible and that, therefore, the petition for writ of habeas corpus must be granted subject to the special conditions set forth at the conclusion of this opinion.

FACTS

On July 9, 1965, the petitioner, upon entering a plea of guilty, was convicted of armed robbery in violation of § 943.32(1)(b), (2), Wisconsin Statutes, in the County Court of Racine County, Wisconsin. The petitioner was sentenced on that date to an indeterminate term of not more than fifteen years at the Wisconsin State Reformatory, Green Bay, Wisconsin. However, execution of the sentence was stayed and the petitioner was placed on probation to the State Department of Public Welfare for a period of seven years.¹ On the same date, the petitioner signed a "Parole Agreement and a Travel Permit and Agreement to Return" and was allowed to return to Illinois which was, at that time, his home. Pursuant to the Uniform Act for out-of-state parolee supervision,² the Adult Probation Department of the Circuit Court of Cook County, Illinois, accepted the probation supervision responsibilities over the petitioner.

On August 20, 1965, the petitioner's probation supervisor recommended to the State Department of Public Welfare in Wisconsin that the petitioner's probation be revoked due to his alleged association with known criminals and his alleged involvement in a burglary. On the same day, the district administrator in Wisconsin concurred in the recommendation of revocation. On August 27, 1965, the chief of Probation and Parole Services also concurred in the recommended revocation of the petitioner's probation. On September 1, 1965, an order revoking the petitioner's probation was signed by Wilbur Schmidt, the Director of the Wisconsin State Department of Public Welfare.

On September 3 or 4, 1965, the petitioner was picked up at his place of employment in Illinois and transported to the sheriff's office in Niles, Illinois. Later in the same day, he was transported to the Racine County jail and held overnight. On September 5, 1965, he was transported to and received at the Wisconsin State Reformatory in Green Bay, Wisconsin.

It is undisputed that the petitioner did not at any time receive notice or a hearing of any kind pursuant to the revocation of his probation.

It appears from the record in this case that the petitioner was arrested on August 5, 1965, in Deerfield, Illinois, for burglary. The record also contains in this regard an unsigned statement allegedly given by the petitioner to Robert J. Smart, Assistant State's Attorney, Cook County, Illinois, which, if true and valid, could fairly be construed as a confession to the burglary on August 5, 1965. It further appears from the record that the petitioner was referred to in newspaper articles in the Chicago Tribune concerning the alleged burglary in Deerfield on August 5, 1965.

The petitioner maintains that he is innocent of the burglary charges from Deerfield (which were apparently dropped subsequent to the revocation of his probation) and could have proven his innocence in court. He contends further that he should have been provided an opportunity to explain and answer the allegations about his involvement in the alleged burglary which he maintains were the basis of the revocation of his probation, but that he was not afforded any hearing in which he could answer the allegations made against him.

At the time of filing his petition for writ of habeas corpus, the petitioner was an inmate in a Wisconsin State correctional institution. However, on June 4, 1969, subsequent to filing the instant writ, the petitioner was released from prison in Wisconsin and was paroled to a federal detainer. The petitioner had previously been sentenced to a term of eight years pursuant to a federal conviction. The petitioner is thus currently a parolee of the State of Wisconsin, incarcerated in a federal prison in Terre Haute, Indiana.

ISSUES

The respondent does not contend that the present petition is moot or that this court lacks jurisdiction to consider it by virtue of the fact that petitioner was paroled from prison in Wisconsin subsequent to filing this petition for writ of habeas corpus. I have concluded that the petition is not moot and that this court has jurisdiction to consider it. The petitioner's parolee status is sufficient "custody" for the purpose of § 2241 et seq., and this court's jurisdiction. The possible adverse effects of the petitioner's probation revocation are sufficiently important "collateral consequences" to save the petition from mootness although the petitioner is no longer technically incarcerated by virtue of the probation revocation. See Sibron v. New York, 392 U.S. 40, 50-55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 235, 237-240 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970); and Hewett v. North Carolina, 415 F.2d 1316, 1320-1321 (4th Cir. 1969).

The petitioner's first contention is that the due process clause of the Fourteenth Amendment and the "fundamental principles of liberty and justice" which flow from the due process clause require that a probationer be given notice and hearing prior to the revocation of his probation.

The issue of the necessity of a hearing prior to probation revocation has been the subject of an increasing volume of commentary.³

On August 19, 1970, the United States Court of Appeals for the Seventh Circuit decided the case of Hahn v. Burke, supra. The Hahn case involved an appeal from a district court denial of a petition for writ of habeas corpus. In Hahn, one of the petitioner's contentions on appeal was that the revocation of his probation⁴ without a hearing violated his constitutional rights.

The Seventh Circuit found that the revocation of the petitioner's probation without affording him a hearing was violative of "the basic requirements of due process." In reaching its decision, the Hahn court considered the bases which had been utilized by other courts to reach a contrary conclusion that a hearing before probation revocation was not required. Since similar arguments are urged by the respondent in this case, it is worth noting how the Hahn court treated these issues. Regarding the "privilege-right" distinction, the Court said:

"* * * While we are mindful that probation is a privilege and not a right and is subject to the conditions of the court, see Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), essential procedural due process no longer turns on the distinction between a privilege and a right. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L.Ed.2d 287 (May 23, 1970); Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 22 L.Ed. 2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed. 2d 965 (1963); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). See also Von Alstyne, The Demise of the Right—Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1967-8)." Id., 430 F.2d 103.

With regard to the argument that probation is a form of contract, a condition of which is the waiver of right to a hearing, the Hahn Court disagreed saying:

"* * * Probation is in fact not a contract. The probationer does not enter into the agreement on an equal status with the state. * * *"

The Court then quotes from Judge Celebrezze's dissenting opinion in Rose v. Haskins, 388 F.2d 91, 100 (6th Cir. 1968), wherein Judge Celebrezze stated:

"* * * if the negative pregnant that is implicit in the contract theory is true (that if the parolee had not agreed to summary revocation he would have had the right to a hearing), then that theory has recognized that a right to a hearing is inherent in the revocation situation. Waiver of such a valuable right is not to be lightly determined, and when the `choice' of the parolee is to remain in prison or accept such a burdensome provision, the `choice' to accept parole can hardly be termed a voluntary waiver of the right to a hearing. * * *"

The Court in Hahn, in finding that due process dictated a hearing prior to probation revocation, referred to the recent United States Supreme Court case of Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L.Ed.2d 287 (1970). In Goldberg, the Supreme Court held that welfare recipients have a constitutional right to a hearing before termination of public assistance benefits. As noted in the Hahn opinion, the Supreme Court in Goldberg stated at page 262, 90 S.Ct. at page 1018:

"* * * The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be `condemned to suffer grievous loss,' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. * * *"

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