Goolsby v. Gagnon

• Decision Date: 10 February 1971
• Docket Number: Civ. A. No. 70-C-330,70-C-498.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: John GOOLSBY, 27379-A, Petitioner, v. John R. GAGNON, Warden, Wisconsin Correctional Institution, Respondent. Jeffery PATTERSON, Petitioner, v. Elmer O. CADY, Warden, Wisconsin State Prison, Respondent.

322 F. Supp. 460

John GOOLSBY, 27379-A, Petitioner, v. John R. GAGNON, Warden, Wisconsin Correctional Institution, Respondent.

Jeffery PATTERSON, Petitioner, v. Elmer O. CADY, Warden, Wisconsin State Prison, Respondent.

Civ. A. Nos. 70-C-330, 70-C-498.

United States District Court, E. D. Wisconsin.

February 10, 1971.

Robert J. Lerner, Milwaukee, Wis., for petitioners.

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

OPINION AND ORDER

REYNOLDS, District Judge.

John Goolsby and Jeffery Patterson, both inmates in Wisconsin correctional institutions, have applied for writs of habeas corpus pursuant to Title 28, United States Code, § 2241 et seq. Both petitioners were parolees from Wisconsin correctional institutions and had their paroles revoked pursuant to § 57.06, Wisconsin Statutes, without a hearing. The central issue raised in both petitions is whether or not the due process clause of the Fourteenth Amendment to the Constitution requires that a parolee be given a hearing prior to the revocation of his parole.

I. FACTS

A. Civil Action No. 70-C-330, Goolsby v. Gagnon

The petitioner filed for writ of habeas corpus in another branch of this court in May of 1970. On June 17, 1970, petitioner was granted leave to proceed in forma pauperis and a response was ordered from the respondent. On July 29, 1970, an opinion and order denying petitioner the relief requested was entered. Thereafter on September 3, 1970, the order of July 29, 1970, was vacated, the Court stating that he was of the opinion that the previous opinion and order should be set aside in light of the decision by the Court of Appeals for the Seventh Circuit in the case of Hahn v. Burke, 430 F.2d 100 (decided August 19, 1970), rehearing denied September 29, 1970. On September 14, 1970, counsel was appointed by the court to represent the petitioner, and briefs were requested from both sides regarding the impact of Hahn v. Burke, supra, upon the issues raised in petitioner's application for writ of habeas corpus. The case was transferred to this branch on November 2, 1970.

On July 6, 1967, petitioner was convicted of robbery in the Circuit Court of Milwaukee County. For this offense the petitioner received an indeterminate sentence of not more than four years. On January 7, 1969, petitioner was released on parole. On October 20, 1969, his parole was revoked. It is stated on the parole revocation order and warrant, dated October 10, 1969, that the petitioner absconded from supervision. The date of this violation is given as June 4, 1969. It also stated on the order and warrant that the petitioner's whereabouts was discovered when he was convicted of disorderly conduct and fined $25 in the Milwaukee County Court.

Petitioner maintains in his traverse to the response filed by respondents that he did not abscond from supervision but, rather, was "acting on his parole officer's word." Petitioner contends that he is entitled to a hearing prior to the revocation of his parole and that he is entitled to the assistance of counsel at that hearing.

B. Civil Action No. 70-C-498, Patterson v. Cady

On September 1, 1970, petitioner filed an application for writ of habeas corpus in another branch of this court. On that same date, petitioner was granted leave to proceed in forma pauperis and a response was ordered from the respondent. On September 29, 1970, counsel was appointed by the court to represent the petitioner. The case was transferred to this branch on November 2, 1970.

It appears from the state department's violation reports, which are attached to respondent's response as appendices, that petitioner was convicted on June 28, 1968, while on parole, of operating an automobile without an operator's license. Petitioner's parole was continued in spite of this conviction. It then appears from another violation report dated July 16, 1969, that petitioner was charged with battery and that he left his parole officer's office without permission, thereby absconding from supervision. On July 21, 1969, petitioner's parole was revoked for absconding from supervision. There is, in addition, a further violation report indicating that petitioner was arrested on July 22, 1969, and charged with operating an automobile without the owner's consent, obstructing an officer, and driving without a driver's license. It is further stated in this violation report that the petitioner took certain steps against his parole officer when interviewed in jail, such as using abusive language and spitting in the officer's face. Petitioner was received at the Wisconsin State Reformatory on October 15, 1969, pursuant to his revocation. The state maintains that there was ample reason for the revocation of petitioner's parole, which may well be true. However, in petitioner's pro se traverse to the response filed by the state, the petitioner maintains that he never had an opportunity to contest any of the charges made against him, and he denies that the department had "ample reason" to revoke his parole. He claims the right to a hearing and to be represented at the hearing by counsel.

Both of the petitioners have been denied relief on state habeas corpus petitions filed with the Wisconsin Supreme Court.

II. ISSUES

In August of 1970, the Court of Appeals for the Seventh Circuit decided the case of Hahn v. Burke, supra. In Hahn, the Seventh Circuit found that there was a constitutional right to a hearing prior to the revocation of probation in Wisconsin. Petitioners herein contend that the rationale of Hahn applies with equal force to the revocation of parole. Thus, the issue presented is, given the principles enunciated in Hahn v. Burke, whether or not parolees as well as probationers are entitled to a hearing prior to the termination of their status as conditionally free men.

In Hahn, the Seventh Circuit stated:

"The state need not grant probation, but if it does so, it should not be able to arbitrarily revoke such probation without giving petitioner a reasonable opportunity to explain away the accusation that he had violated the conditions upon which his probation was granted. Citations omitted. When the state created conditions of probation it impliedly agreed to continue petitioner's probation as long as the conditions were satisfied. To allow the state to summarily revoke the petitioner's probation without a hearing to determine if the conditions upon which the probation was granted have been violated, is state action inconsistent with the due process guarantees of the fourteenth amendment." Id. at 104.

The Hahn court recognized that probation (like parole) is a privilege and not a "right." However, the court stressed that "essential procedural due process no longer turns on the distinction between a privilege and a right." The court then quoted from 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):

"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, 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. Goldberg v. Kelly, supra, 90 S.Ct. at 1017-1018." Hahn, supra, at 103.

In Goldberg, the Supreme Court found that public assistance recipients were entitled to a hearing prior to the termination of their assistance. The Hahn court found the situation of a probationer facing revocation of probation to be at least as strong as that of the public assistance recipient.

"* * * Weighing the `extent to which he the petitioner may be condemned to grievous loss' against `the governmental interest in the summary adjudication' we find the petitioner's loss of freedom to outweigh the added state burden of providing a limited hearing to allow petitioner to be confronted with his probation violation and to be heard." Hahn, supra, at 104.

The issue raised by the present petitioners is whether probation should be treated differently than parole in Wisconsin. Resolution of the issue requires applying the test from Hahn to parole revocations. It is important to note that this issue was not decided in Hahn v. Burke. At footnote 5 of that opinion, the Seventh Circuit stated: "Since we are not faced with the question of the constitutional right to a hearing pursuant to a parole revocation, we need not decide this issue." However, it is equally important to note that the Hahn court, after making clear that they were then only deciding the issue of probation revocation hearings, did go on to add: "(but see Celebrezze, J., dissenting in Rose v. Haskins, 388 F.2d at 97)." In Rose v. Haskins, the Court of Appeals for the Sixth Circuit held that there was no constitutional right to a hearing prior to the revocation of parole. The majority opinion relied heavily upon the "privilege-right distinction." Judge Celebrezze's dissent (which is quoted elsewhere in the Hahn opinion and typified as being "excellent") argued for the existence of a constitutional right to a hearing prior to the revocation of parole. Hence, while not expressly deciding the parole hearing question in Hahn, the court did clearly refer the reader to a dissenting opinion from another circuit where the result reached in Hahn was urged as proper in the case of parole revocations.

I turn now to application of the Hahn test to the context of parole revocations. What salient differences are there between probation and parole that could have an impact upon petitioner's potential "loss" and the governmental "interest in summary adjudication"?

With regard to petitioners' potential loss, the state argues that the loss in the case of revocation of parole is less than that suffered by a revoked probationer. I am totally unimpressed with such an...