State ex rel. Niederer v. Cady

• Decision Date: 20 April 1976
• Docket Number: No. 528,528
• Citation: 240 N.W.2d 626,72 Wis.2d 311
• Parties: STATE ex rel. Richard NIEDERER, Appellant, v. Elmer O. CADY, Warden, Wisconsin State Reformatory, Respondent. (1974).
• Court: Wisconsin Supreme Court

Page 626

240 N.W.2d 626

72 Wis.2d 311

STATE ex rel. Richard NIEDERER, Appellant, v. Elmer O. CADY, Warden, Wisconsin State Reformatory, Respondent.

No. 528 (1974).

Supreme Court of Wisconsin.

Argued Jan. 6, 1976.

Decided April 20, 1976.

Howard B. Eisenberg, State Public Defender, and Ronald L. Brandt, Asst. State Public Defender, for appellant.

Michael R. Klos, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

HEFFERNAN, Justice.

The petitioner for habeas corpus, Richard Niederer, was a parolee who was permitted, under the provisions of sec. 57.13, Stats., the Out-of-State Parolee Supervision Act, to leave the State of Wisconsin for the purpose of employment in Minnesota. Because of conduct which the parole authorities determined to be sufficient for revocation, the defendant was returned to the State of Wisconsin, his parole was revoked, and he was required to complete his sentence. His petition for habeas corpus was quashed by the circuit court.

The petitioner argues that he was deprived of his constitutional rights, because the act under which he was permitted to work in Minnesota denies him the right to an extradition hearing prior to his return to Wisconsin. He also contends that the procedure adopted by the State of Wisconsin in the pick up of compact parolees denies him equal protection of the laws, because a parolee who absconds from the state is entitled to an extradition hearing, while one who leaves the state with permission is denied that right.

He additionally argues that he was entitled, under Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, to a preliminary hearing, in respect to his parole revocation, in Minnesota at the location that the incident which triggered the revocation occurred.

Upon his return to Wisconsin, he waived the right to a final administrative hearing on revocation; and he alleges that that waiver was not voluntary and knowledgeable.

We conclude that the Out-of-State Parolee Supervision Act is not unconstitutional on the ground that it denies the right of an extradition hearing; and we further conclude that the use of that statute in respect to compact parolees does not deny equal protection of the law, because there is a legally recognizable difference between the status of a parolee who leaves the state with permission and one who absconds from the state.

We decline to address ourselves to the facts which Niederer claims support his contention that he was denied both statutory and constitutional rights in the manner in which his revocation was heard or in respect to the method in which certain waivers were obtained. We conclude that, insofar as Niederer is concerned, this appeal is moot.

The record and the statement at oral argument demonstrate that Niederer was discharged from custody in September of 1974. Hence, in respect to him, there is nothing before this court for determination. Were the status of Niederer the only question before this court on appeal, we would dismiss without opinion, because the petitioner's rights in the controversy were terminated by lapse of time. However, we retain this appeal, because it involves questions of public interest, even though it has become moot in respect to the interest of Niederer.

The State Public Defender's office substantially acknowledges the mootness of Niederer's claim, but correctly urges that we decide the statutory and constitutional questions, because they involve the right of the state to enforce a statute that potentially affects significant constitutional rights of a large class of individuals--parolees who have left the state pursuant to interstate compact (sec. 57.13, Stats.)--and thus pose questions which are capable of significant repetition. ¹

The record shows that this defendant was given a mandatory release from prison. He was placed on parole, but he requested that he be afforded the out-of-state privileges extended under sec. 57.13, Stats. That statute recites the congressional authorization for the State of Wisconsin to enter into compacts with other states of the United States to permit persons convicted within a 'sending state' to reside in another state party to the compact, the 'receiving state,' while on probation or parole. While in the 'receiving state,' the parolee is supervised by the appropriate probation or parole authorities of that state. Minnesota and Wisconsin are both parties to this interstate compact.

Crucial to the resolution of the constitutional dispute posed in the intent case is sec. 57.13(3), Stats. That portion of the statute provides:

'57.13(3) That the duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are expressly waived on the part of states party thereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state; provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.'

This statute, then, specifically abrogates sec. 976.03, Stats., the Uniform Criminal Extradition Act, in respect to parolees who have been released to another state under the compact. The only formality required under sec. 57.13(3) for the retaking of an out-of-state parolee is that the official from the 'sending state' who desires to retake the parolee establish his authority and the identity of the parolee.

The record shows that it is the practice of the department of corrections to secure a specific waiver of extradition from a parolee when he applies for permission to go to another state. While it is appropriate and necessary that the parolee be informed of the provisions of the statute which make extradition unnecessary, the execution of a waiver is superfluous, for no parolee who goes to another state under this statute has either a constitutional or statutory right to insist on the utilization of the Uniform Criminal Extradition Act.

The State Public Defender apparently argues that extradition is a constitutional right, which affords to anyone sought to be removed from one state to another a full blown extradition hearing, and that the failure to afford such a hearing violates due process.

We conclude that, under the constitution and the implementing federal statutes, no right to extradition is conferred upon a fugitive or upon one in the position of an out-of-state parolee. In the event that extradition is appropriate or necessary, there are indeed certain statutory rights that are conferred upon persons sought to be extradited. These, however, are not of constitutional proportions, unless it appears that a state applies these statutory provisions arbitrarily or capriciously or that the practices constitute a denial of equal protection of the law.

However, the question which we must first resolve is whether extradition is a right that is constitutionally afforded one sought to be removed from one state by the authorities of another.

The Uniform Criminal Extradition Act, sec. 976.03, Stats., details procedures to be applied when extradition is sought. The rights afforded under extradition acts are, however, statutory and not constitutional.

In Lascelles v. Georgia (1893), 148 U.S. 537, 542, 13 S.Ct. 687, 689, 37 L.Ed. 549, the United States Supreme Court said:

'The sole object of the provision of the constitution (Art. IV, sec. 2) and the act of congress to carry it into effect is to secure the surrender of persons accused of crime, who have fled from the justice of the state whose laws they are charged with violating. Neither the constitution, nor the act of congress providing for the rendition of fugitives upon proper requisition being made, confers, either expressly or by implication, any right or privilege upon such fugitives . . . (or) exemption from trial for any criminal act done therein.'

The United States Supreme Court has gone so far as to say that, constitutionally, a prisoner may be tried even though the extradition process is totally ignored in removing him from an asylum state, and even under circumstances where he is removed by force. Ker v. Illinois (1886), 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Mahon v. Justice (1888), 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283; Frisbie v. Collins (1952), 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541. In the latter case, the court stated:

'. . . due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.' Frisbie, p. 522, 72 S.Ct. p. 512.

In Ponzi v. Fessenden (1922), 258 U.S. 254, 260, 42 S.Ct. 309, 310, 66 L.Ed. 607, the United States Supreme Court stated:

'One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its law in order that the other may also subject him to conviction of crime against it. . . . Such a...