State ex rel. Mulligan v. Department of Health & Social Services, No. 76-177
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | ABRAHAMSON; COFFEY |
| Citation | 273 N.W.2d 290,86 Wis.2d 517 |
| Decision Date | 09 January 1979 |
| Docket Number | No. 76-177 |
| Parties | STATE ex rel. Barry C. MULLIGAN, Petitioner-Appellant, v. DEPARTMENT OF HEALTH & SOCIAL SERVICES, State of Wisconsin, Respondent. |
Page 290
v.
DEPARTMENT OF HEALTH & SOCIAL SERVICES, State of Wisconsin,
Respondent.
Decided Jan. 9, 1979.
Page 291
Richard M. Sals, Asst. State Public Defender, (argued), for petitioner-appellant; Howard B. Eisenberg, State Public Defender, on brief.
James H. Petersen, Asst. Atty. Gen., (argued), for respondent; Bronson C. La Follette, Atty. Gen., on brief.
ABRAHAMSON, Justice.
This is an appeal from a judgment affirming a decision of the Wisconsin Department of Health and Social Services to revoke the probation of Barry Charles Mulligan. We affirm the judgment.
Mulligan was found guilty of indecent behavior with a child contrary to sec. 944.11(2), Stats., and was sentenced to a prison term not to exceed eight years. Sentence was stayed, and Mulligan was placed on four years' probation to the Milwaukee County Adult Probation Department. [86 Wis.2d 518] In December, 1973, the trial court transferred Mulligan to the custody of the Department of Health and Social Services (DHSS).
The record shows that Mulligan was an alcohol abuser. While in the custody of the Milwaukee County Adult Probation Department he was frequently arrested and fined for drunkenness. It appears that on the advice of a counselor with the Milwaukee Alcoholic Rehabilitation Services, Mulligan voluntarily committed himself for three weeks of treatment.
Shortly after he was transferred to the custody of DHSS, Mulligan signed a standard-form probation agreement to which his probation agent had appended two special conditions: (1) "I will not partake of any alcoholic beverages unless so directed by a licensed physician; (2) I will maintain my residence at Dunbar House (a half-way house) I will first request permission to move from the agent should I wish to move out." On January 27, 1974, less than a month after signing the agreement, Mulligan was hospitalized in a comatose state, purportedly having ingested barbiturates and alcohol. On the basis of Mulligan's admission that he had had a few drinks, his probation agent recommended that probation be revoked for violation of the condition of probation. Mulligan was accorded both a "probable cause" preliminary hearing and a full hearing at which he was represented by counsel. Mulligan's defense was that he had not violated the no-alcohol condition. He denied telling his probation agent that he had drunk beer, and he asserted that his behavior must have been the result of his ingestion of a combination of antabuse and a prescribed hiccup medicine containing alcohol. He was unable to produce a prescription for the medicine. The DHSS revoked Mulligan's probation on the ground that [86 Wis.2d 519] Mulligan had consumed alcohol in violation of his probation agreement. 1
Mulligan sought review of the revocation order by means of a petition for writ of certiorari directed to the sentencing court. State ex rel. Johnson v. Cady, 50 Wis.2d 540, 549, 550, 185 N.W.2d 306 (1971). The trial court upheld the probation revocation.
Page 292
On appeal Mulligan asserts that it was a violation of his constitutional rights (Eighth and Fourteenth Amendments) to impose as a condition of his probation that he not partake of alcoholic beverages without providing him with treatment for chronic alcoholism. He contends that imposing a no-alcohol condition of probation on a chronic alcoholic and revoking probation when the alcoholic yields to his irresistible compulsion to drink amounts to punishment for being ill, contrary to the principles established in Robinson v. California, 370 U.S....
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State v. Urban, No. 17–098
...from "more or less continuous drinking to excess of alcoholic beverages"); State ex rel. Mulligan v. Dep't of Health & Soc. Servs., 86 Wis.2d 517, 273 N.W.2d 290, 292 (1979) (finding no-alcohol condition valid absent showing that defendant is chronic alcoholic, namely "involuntary drinker" ......
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State v. Urban, No. 2017-098
...from "more or less continuous drinking to excess of alcoholic beverages"); State ex rel. Mulligan v. Dep't of Health and Soc. Serv., 273 N.W.2d 290, 292 (Wisc. 1979) (finding no-alcohol condition valid absent showing that defendant is chronic alcoholic, namely "involuntary drinker" whose "s......
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People v. Berkley
...who is pathologically unable to refrain from drinking (see, e.g., State ex rel. Mulligan v. Department of Health & Social Servs., 86 Wis.2d 517, 273 N.W.2d 290; State v. Oyler, 92 Idaho 43, 436 P.2d 709; see also, Sweeney v. United States, 353 F.2d 10). To the contrary, although defendant n......
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State ex rel. Gomez v. Department of Health and Social Services
...as conceded by Gomez the Wisconsin Supreme Court has never adopted the reasoning in Sweeney. See State ex rel. Mulligan v. DH&SS, 86 Wis.2d 517, 519-20, 273 N.W.2d 190, 292 (1979). Because our state supreme court has not adopted Sweeney, no basis exists under present Wisconsin law for concl......
-
State v. Urban, No. 17–098
...from "more or less continuous drinking to excess of alcoholic beverages"); State ex rel. Mulligan v. Dep't of Health & Soc. Servs., 86 Wis.2d 517, 273 N.W.2d 290, 292 (1979) (finding no-alcohol condition valid absent showing that defendant is chronic alcoholic, namely "involuntary drinker" ......
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State v. Urban, No. 2017-098
...from "more or less continuous drinking to excess of alcoholic beverages"); State ex rel. Mulligan v. Dep't of Health and Soc. Serv., 273 N.W.2d 290, 292 (Wisc. 1979) (finding no-alcohol condition valid absent showing that defendant is chronic alcoholic, namely "involuntary drinker" whose "s......
-
People v. Berkley
...who is pathologically unable to refrain from drinking (see, e.g., State ex rel. Mulligan v. Department of Health & Social Servs., 86 Wis.2d 517, 273 N.W.2d 290; State v. Oyler, 92 Idaho 43, 436 P.2d 709; see also, Sweeney v. United States, 353 F.2d 10). To the contrary, although defendant n......
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State ex rel. Gomez v. Department of Health and Social Services
...as conceded by Gomez the Wisconsin Supreme Court has never adopted the reasoning in Sweeney. See State ex rel. Mulligan v. DH&SS, 86 Wis.2d 517, 519-20, 273 N.W.2d 190, 292 (1979). Because our state supreme court has not adopted Sweeney, no basis exists under present Wisconsin law for concl......