State v. Goulette, S

Decision Date29 October 1974
Docket NumberNo. S,S
Citation65 Wis.2d 207,222 N.W.2d 622
PartiesSTATE of Wisconsin, Appellant, v. William Leo GOULETTE, Respondent. tate 138.
CourtWisconsin Supreme Court

Robert W. Warren, Atty. Gen., Charles R. Larsen, Asst. Atty. Gen., Madison, for appellant.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison (Charles E. White, River Falls, of counsel), for respondent.

Walter F. Kelly, Milwaukee, amicus curiae for Wis. Civil Liberties Union Foundation.

BEILFUSS, Justice.

Because the respondent was given a parole hearing in May of 1974 and released on parole in July, 1974, the case is moot. An order of this court either affirming or reversing the judgment appealed from would accomplish nothing insofar as the respondent is concerned. He has had the hearing he sought and he has been granted the affirmative relief he sought. An order of this court deciding the issues on the appeal could in no way affect his present status and the appeal is moot. 1

Even though we have concluded this appeal is moot we deem it advisable to comment upon some of the issues raised because of their possible effect upon subsequent cases.

The major issue raised which may be the subject of future concern is whether the Parole Board's recommendation to refuse the granting of a parole is subject to judicial review.

In Tyler v. State Department of Public Welfare (1963), 19 Wis.2d 166, 119 N.W.2d 460, this court held that the refusal of a parole board to grant parole was not judicially reviewable under the Administrative Procedure Act, secs. 227.15 to 227.21, Stats. The State argues that the reasoning and holding of that case should be applied to this case and that review by certiorari should be denied. The respondent, through the State Public Defender, contends that Tyler deals only with procedures provided for in the Administrative Procedure Act and is not authority for a rule that judicial review is not available and that certiorari is available.

The State contends that the fact that a prisoner has no right to parole bears on the broader questions of whether there can be any judicial review of a parole refusal. Both parties cite State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 185 N.W.2d 306, wherein this court concluded that '. . . the basic requirements of due process and fairness require that the department provide a limited hearing. . . . ' to parolees prior to revocation of their parole. We also stated, however at pages 549, 550 of 50 Wis.2d, at page 311, of 185 N.W.2d, that:

'Once having determined that petitioners are entitled to revocation hearing, we deem it advisable to consider the right of review of the department's action in revocation. It is well established in this state that where there are no statutory provisions of judicial review, the action of a board or commission may be reviewed by way of certiorari.

'We, therefore, hold that petitioner's right of review of a revocation hearing is by certiorari directed to the court of conviction. . . .' 2

The State argues that because there is no right to parole and because there is no taking of anything from the applicant as there is in revocation, the action of the Parole Board is not subject to review by certiorari. This court has never so restricted the availability of the writ. See Marquette Savings & Loan Asso. v. Twin Lakes (1968), 38 Wis.2d 310, 156 N.W.2d 425. We held there that a common-law writ of certiorari was proper to review the purely discretionary refusal of a villege board to grant a liquor license. In that case there was no taking of anything from the applicant and the applicant had no right to a license since the relevant statute provided only that '(e)ach town board, village board and common council may grant retail licenses. . . .' Sec. 176.05, Stats.

The court in Tyler, supra, stated at pages 172, 173, of 19 Wis.2d at page 465, of 119 N.W.2d:

'The general rule is that refusal to parole is not subject to judicial review. The fact that the courts of other states decline to review administrative refusal to parole is not conclusive on the question of whether our statutes make such refusal subject to proceedings for review under sec. 227.15ff, Stats., but their decisions demonstrate that judicial review of such refusal would be unprecedented. We consider them persuasive that 'legal rights . . . or privileges' in sec. 227.15 should not be construed t include a prisoner's interest in parole.

'A general statement appears in 67 C.J.S. Pardons, § 20, pp. 604--605, as follows:

"A parole is a mere matter of grace, favor, or privilege, and a prisoner is not entitled thereto as a matter of right. Subject to the limitations imposed by statute, the question whether a prisoner shall be paroled is a matter for the discretion of the paroling authority, whether it be a court or an officer, board, or commission.

Under the statutes and decisions, the discretion of a parole board, commission, or officer as to releasing or refusing to release a prisoner on parole is absolute and not subject to review by a court where the board, commission, or officer acts according to law and without violation of, or departure from, positive statutory requirements."

However, as urged by amicus curiae, the proposition that judicial review is not available no longer remains valid, as more and more courts, especially where alleged constitutional deprivations are involved, are adopting the rationale expressed by the court in Johnson v. New York Board of Parole (2d Cir. 1974), 500 F.2d 925, regarding review of the board's refusal to grant parole:

'. . . Nor do we suggest that the courts should serve as 'super-Parole Boards.' But judicial review should be available where the Board has arrogated to itself decisions properly made only by the legislature, when the Board's decision in a case is inconsistent with statutory directives, when improper criteria are used, or when its decision has no basis in the prisoner's file. . . .' 3

In light of the foregoing it seems clear that Tyler, supra, should not be extended to deny review by certiorari of parole refusals. Certiorari has traditionally been held to be available where statutory appeal is inadequate or non-existent, State ex rel. Johnson v. Cady, supra; Outagamie County v. Smith (1968), 38 Wis.2d 24, 155 N.W.2d 639; and where there is no other adequate remedy, Wardsworth v. Sibley (1875), 38 Wis. 484; State ex rel. Meggett v. O'Neill (1889), 104 Wis. 227, 80 N.W. 447. We are of the opinion that the refusal of the Parole Board to grant parole offers an appropriate opportunity for the issuance of the writ, subject as always to the discretion of the court. Consolidated Apparel Co. v. Common Council (1961), 14 Wis.2d 31, 109 N.W.2d 486; State ex rel. Goldsmith Bldg. Co. v. Bolan (1951), 259 Wis. 460, 49 N.W.2d 409.

In State ex rel. Johnson v. Cady, supra, the court ruled that review of the parole revocation hearing was by certiorari directed to the court of conviction. Sec. 253.11(1), Stats., as amended by 1973 Assembly Bill 1076, also provides that review of revocation hearings on certiorari should be by the committing court, whether circuit or county. We believe that this procedure should be adopted for parole refusals as well.

The well-settled rule in Wisconsin is that on review by certiorari the reviewing court is limited to determining: (1) Whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 94 N.W.2d 711; State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis.2d 243, 111 N.W.2d 198; State ex rel. Kaczkowski v. Fire & Police Comm. (1967), 33 Wis.2d 488, 148 N.W.2d 44, 149 N.W.2d 547; State ex rel. Hippler v. Baraboo (1970), 47 Wis.2d 603, 178 N.W.2d 1. As stated in State ex rel. Ball v. McPhee, supra, 6 Wis.2d at page 199, 94 N.W.2d at page 716:

'Construing the phrase 'acted accrding to law,' we deem the word 'law' means not only applicable statutes but also the common law concepts of due process and fair play . . ..'

Because the appeal from the judgment of the trial court remanding the record to the Parole Board and directing procedures and standards is moot, we will not review nor discuss the specifics of the trial court judgment--except to note that a hearing with minimal due process or fair play standards should be provided at a parole hearing and that some form of comprehensible and adequate record should be kept and provided for purposes of review.

We do not deem it advisable for further comment upon the manner of conducting the hearing nor the adequacy of the standards which apply because we are informed that the department is now in the process of formulating, in written form, the procedures and standards to be used by the Parole Board in parole hearings. Our review of the necessary procedures and standards should await the department's determination of these questions, provided, of course that they are forthcoming and effective within a reasonably short period of time.

Appeal dismissed.

ROBERT W. HANSEN, Justice (dissenting).

The writer would here reverse the trial court, dismiss the writ of certiorari and affirm the decision of the state parole board denying the privilege of parole to the respondent. The writer sees a parole as a privilege granted, within the discretion of the paroling authority. 1 The applicable statute provides only that the department 'may parole an inmate of the Wisconsin state prisons.' 2 It contains no provisions for standards, the fulfillment of which entitle an inmate to parole. The writer would grant judicial review by certiorari of denials of parole but with such review limited to a consideration of whether the board acted...

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