Miller v. Quatsoe

• Decision Date: 19 October 1971
• Docket Number: Civ. A. No. 70-C-203.
• Citation: 332 F. Supp. 1269
• Parties: William James MILLER, Petitioner, v. Donald L. QUATSOE, Warden, Wisconsin State Reformatory, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

332 F. Supp. 1269

William James MILLER, Petitioner, v. Donald L. QUATSOE, Warden, Wisconsin State Reformatory, Respondent.

Civ. A. No. 70-C-203.

United States District Court, E. D. Wisconsin.

October 19, 1971.

Alan Marcuvitz and Peter J. Salza, Milwaukee, Wis., for petitioner.

E. Michael McCann, Dist. Atty., by Michael Ash, Asst. Dist. Atty., Milwaukee, Wis., and Robert W. Warren, Atty. Gen., by William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.

OPINION AND ORDER

REYNOLDS, Chief Judge.

This is an application for writ of habeas corpus pursuant to Title 28 U.S.C. § 2254. Petitioner is presently incarcerated in the Wisconsin State Reformatory, having been convicted of armed robbery (Wis.Stats. § 943.32) and sentenced to an indeterminate term of not more than twelve years in the Wisconsin state prisons. Petitioner took no appeal from his conviction for armed robbery but sought a writ of habeas corpus in the Wisconsin Supreme Court on the grounds that Wisconsin unlawfully acquired jurisdiction over him and that the juvenile waiver hearing in which the juvenile court waived jurisdiction over him was defective. The Wisconsin Supreme Court, after an evidentiary hearing, denied per curiam the application for a writ (Unpublished Opinion Miller v. Quatsoe, Case No. 70-81 (1970)). Petitioner, for the reasons presented to the Wisconsin Supreme Court, now seeks a writ of habeas corpus from this court. The parties have submitted briefs and orally argued the matter before me. For the reasons set out below, I grant petitioner's application but stay it pending action by the State of Wisconsin.

On April 16, 1968, knowing that Mr. Miller, the petitioner (then age 17—born September 10, 1950), was in Indiana, the Children's Court of Milwaukee County, Wisconsin, issued a request for the return of petitioner from Indiana to Wisconsin to face allegations of delinquency. On April 18, 1968, detectives from the Wauwatosa, Wisconsin, Police Department took custody of petitioner and returned him to the detention facility at the Children's Court Center in Wisconsin. Mr. Miller was held without a hearing until April 20, 1968, a Saturday.

While in custody at the detention facilities, Mr. Miller was apparently involved in some disturbance, and the detention facility personnel wished to remove him. In any event, in the early morning of Saturday, April 20, an assistant district attorney phoned the county judge, and the judge agreed to hold a juvenile waiver hearing for Mr. Miller and two other juveniles. No petition for a waiver hearing was ever served on Mr. Miller, nor were his parents contacted. Pursuant to the judge's request, an attorney was contacted about 8:00 A.M., and he agreed to act as guardian ad litem for petitioner and the two other juveniles (apparently all three were involved in the same incident). The attorney arrived at the Children's Court Center at about 8:30 A.M., reviewed the records furnished by the district attorney's office and Children's Court Center, and conferred (for the first time) with Mr. Miller and the two other juveniles. On the record before me, all that is known about the files which were reviewed by the appointed attorney is that they were the files of the district attorney and the Children's Court. What background information they contained about petitioner, a resident of Minnesota who prior to escape was incarcerated in Minnesota's Circle Pine Boys' Home, is unknown.

The waiver hearing was commenced at about 9:30 A.M. with neither a clerk nor a court reporter present. An attempt was made to call a court reporter but none was available and the guardian ad litem stipulated that a dictation machine could be used to record the proceedings. The guardian ad litem also informed the court that he was prepared for a hearing. At the hearing, which lasted about an hour and a half, testimony was taken. At the end of the hearing, the judge waived juvenile court jurisdiction over the petitioner after making specific findings to explain his decision to waive. Subsequently Mr. Miller was tried as an adult and convicted of armed robbery. Sometime during the week following April 20, it was discovered that because of either a malfunction or erasure, the tape recording of the waiver hearing could not be transcribed. As a result, the only records of the waiver hearing are the judge's personal notes taken at the hearing (which are not before me) and the formal order waiving Children's Court jurisdiction. Neither petitioner nor his guardian ad litem was notified of this discrepancy. At the evidentiary hearing ordered by the Wisconsin Supreme Court pursuant to petitioner's application for state habeas relief, none of the participants at the waiver hearing had more than a dim recollection of that event.

Petitioner advances four grounds for issuance of a writ: (1) The State of Wisconsin improperly brought petitioner back from Indiana; (2) petitioner was not afforded effective counsel at the waiver hearing; (3) inadequate notice was given petitioner of the waiver hearing; and (4) no reviewable record of the waiver decision was made.

Petitioner's first ground that Wisconsin improperly brought Mr. Miller back from Indiana is without merit. Even assuming that Mr. Miller's return to Wisconsin was improper under state or federal law, such impropriety does not impair the power of a court to try a person for a crime. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952); United States v. Ruffin, 389 F.2d 76, 77 (7th Cir. 1968); United States v. Hoffman, 385 F.2d 501, 503-504 (7th Cir. 1967); O'Shea v. United States, 395 F.2d 754 (1st Cir. 1968); LaFranca v. Immigration and Naturalization Service, 413 F.2d 686, 689 (2d Cir. 1969); Government of Virgin Islands v. Ortiz, 427 F.2d 1043, 1044 (3rd Cir. 1970); McCord v. Henderson, 384 F.2d 135, 136 (6th Cir. 1967); Sewell v. United States, 406 F.2d 1289, 1292 (8th Cir. 1969); Charron v. United States, 412 F.2d 657, 659 (9th Cir. 1969); Hobson v. Crouse, 332 F.2d 561 (10th Cir. 1964).

Petitioner's remaining grounds for issuance of a writ are founded on the supposition that constitutional guarantees of Fourteenth Amendment due process are applicable to juvenile waiver proceedings held pursuant to Chapter 48 of the Wisconsin Statutes. Chapter 48 as it is pertinent to this case is described in Gibson v. State, 47 Wis.2d 810, 815 177 N.W.2d 912, 914 (1970):

"The Children's Code (ch. 48, Stats.) provides that `exclusive jurisdiction' is vested in the juvenile court over any child who is alleged to be delinquent because he has `violated any state law' (sec. 48.12(1), Stats.). `Child' is defined as a person under eighteen (sec. 48.02(3)). Only if juvenile jurisdiction is waived as provided in sec. 48.18 can a child charged with a crime against the state be prosecuted in an adult criminal court." (Emphasis added.)

The United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), dealt with the juvenile waiver proceedings of the District of Columbia. It was held that waiver proceedings similar to the proceedings by which petitioner was waived were "critically important," id. at 556 and 560, 86 S.Ct. 1045, and that "there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons." Id. at 554, 86 S.Ct. at 1053, quoted with approval in In re Gault, 387 U. S. 1, 30, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The court went on to state that while waiver proceedings could be of a more informal nature than "a criminal trial or even of the usual administrative hearing" it must "measure up to the essentials of due process and fair treatment." Id. at 562, quoted with approval in In re Gault, supra, at 30, 87 S.Ct. at 1057. In Gault, supra, it was held that a juvenile must be accorded full due process in a hearing where delinquency was determined.

Both Kent (waiver proceedings as required by federal statutory law) and Gault (delinquency determinations as governed by the Constitution) were respectively and expressly limited to the question before the court. Kent, supra, at 556, 86 S.Ct. 1045; Gault, supra, at 13, 87 S.Ct. 1428. However, the constitutional implications clearly present in the language of Kent were heightened in Gault when the Supreme Court in conclusion stated:

"As we said in Kent v. United States, 383 U.S. 541, 554 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), with respect to waiver proceedings, `there is no place in our system of law for reaching a result of such tremendous consequences without ceremony * * *.' We now hold that * * * a delinquency hearing must be in accordance with our law and constitutional requirements." 387 U.S. at 57, 87 S.Ct. at 1459; note also, supra, other portions of Kent cited in Gault.

In In re Whittington, 391 U.S. 341, 344, 88 S.Ct. 1507, 1508, 20 L.Ed.2d 625 (1968), the court in remanding the case to the state court in light of its decision in Gault specifically noted:

"* * * Upon such remand, the Ohio court may, of course, also consider the impact, if any, on the questions raised by petitioner of the intervening order of the Juvenile Court requiring him to face trial in the adult courts."

Since that time the weight of authority has been that "Kent prescribes constitutional duties." United States ex rel. Turner v. Rundle, 438 F.2d 839, 842 (3rd Cir. 1971), and the cases cited therein at 842 n. 11.

Respondent in his brief to this court appears to agree that Kent has constitutional application, and for the reasons stated by Judge Craven in Kemplen v. State of Maryland, 428 F.2d 169 (4th Cir. 1970), rehearing denied, rehearing en banc (6-1) denied, and by Judge Van Dusen in United States ex rel. Turner v. Rundle, supra, I agree that at the very least (and without implying that more may not be required):

"* * * that the Sixth Amendment, as applied to the

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