Van Ermen v. State Dept. of Health and Social Services

• Court: Wisconsin Supreme Court
• Writing for the Court: BEILFUSS; HEFFERNAN
• Citation: Van Ermen v. State Dept. of Health and Social Services, 267 N.W.2d 17, 84 Wis.2d 57 (Wis. 1978)
• Decision Date: 21 September 1978
• Docket Number: No. 77-251,77-251
• Parties: Robert VAN ERMEN, Respondent, v. STATE of Wisconsin, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, and Donald Percy, as Secretary of said Department, Appellant.

Page 17

267 N.W.2d 17

84 Wis.2d 57

Robert VAN ERMEN, Respondent, v. STATE of Wisconsin, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, and Donald Percy, as Secretary of said Department, Appellant.

No. 77-251.

Supreme Court of Wisconsin.

Argued June 7, 1978.

Decided June 30, 1978.

Rehearing Denied Sept. 21, 1978.

James H. Petersen, Asst. Atty. Gen. (argued), with whom on the briefs was Bronson C. La Follette, Atty. Gen., for appellant.

Steven P. Weiss, Asst. State Public Defender (argued), Howard B. Eisenberg, State Public Defender, for respondent.

The Department of Health and Social Services revoked the parole of the petitioner, Robert Van Ermen. On certiorari review the circuit court vacated the revocation order and ordered that Van Ermen's parole be reinstated. The Department appeals.

BEILFUSS, Chief Justice.

The facts underlying this case are set forth in the findings of the Department's hearing examiner: ¹

"In 1961, Mr. Van Ermen, the parolee, was convicted of First Degree Murder. He was convicted of murdering a 63 year old woman after sexually assaulting her during an episode of heavy drinking. Van Ermen maintained he 'blacked out' and was unable to recall anything in detail concerning the incident.

"He received a commutation of his life sentence in 1972, from the Governor and was paroled to field supervision in April, 1973. As a condition of his parole he was forbidden to drink any alcoholic beverages whatsoever at anytime. In implementing the Parole Board's restriction, the parole agent who received Van Ermen on parole incorporated in his parole agreement a prohibition against drinking as follows: 'absolutely no drinking at anytime or place by order of the Parole Board.'

"Prior to his release to parole, Mr. Van Ermen had been working at the Thill Company of Oshkosh on a work release program. He maintained that employment after his release to the date of his recent arrest and detention on July 10, 1976.

"His parole supervision was uneventful and according to the agent, 'went very well.' He maintained employment, he reported satisfactorily, he cooperated with his agent, and during the course of his parole, he married his present wife. No problems arose during the course of this supervision until July, 1976.

"In April, 1976, the agent learned from C.S.A. Martin that Van Ermen was occasionally drinking. The agent planned to talk to Van Ermen about his admitted consumption of alcohol, on the next meeting in June, 1976. When they met, they discussed Van Ermen's 14 year old stepdaughter and his wish to move closer to his work. The agent forgot to talk to Van Ermen about his drinking.

"On July 10, 1976, Robert Van Ermen violated the terms of his parole by consuming at least six cans of beer at a Summerfest celebration in Berlin, Wisconsin. Shortly thereafter, he was arrested for an alleged sexual molestation of an 8 or 9 year old girl. He is presently charged with criminal conduct in Fond du Lac County and is being detained on $50,000 property bond and a parole hold.

"The examiner finds that the allegation that Mr. Van Ermen consumed alcohol in violation of his parole agreement, has been proven. This conduct is a serious violation of his parole supervision in view of the fact he was granted a 'no drink' parole by the Parole Board. The conduct is serious enough to warrant revocation of his parole.

"The examiner finds that the Bureau of Probation and Parole was complied with the law in this revocation. Mr. Van Ermen understood that he was not to drink whatsoever. There were indications throughout supervision that alcohol and its consumption was discussed. There is no doubt that Van Ermen knew that he was not to drink. The fact that Mrs. Van Ermen advised C.S.A. Martin her husband had an occasional drink which information was relayed to Agent Meenk, should not have given Van Ermen the impression that he had a license to begin drinking. Meenk's silence on the subject during their June meeting should not have been considered by Van Ermen as a modification of the agent's position in monitoring his behavior. Van Ermen had a responsibility and duty to discuss his drinking with agent prior to any consumption whatsoever. This is especially so when considering the part drinking Van Ermen contends played in the underlying murder. The examiner finds that not to revoke parole at this time would unduly depreciate the seriousness of the offense and further that, Robert Van Ermen should be removed from the community to protect the community from his further criminal conduct."

The hearing examiner's recommendation of revocation was accepted by the Department and Van Ermen's parole was revoked on September 23, 1976.

On February 7, 1977, Van Ermen petitioned the circuit court for Sheboygan County, the court of his original conviction, for a writ of certiorari. The writ was issued on February 16, 1977. A hearing was held on June 10, 1977, and the court rendered a decision on August 31, 1977. The court noted that the sole reason given by the Department for the revocation was the violation of the "no drinking" clause; in all other respects Van Ermen abided by the terms of his agreement. The court emphasized the testimony of the parole agent, Van Ermen's wife, and Van Ermen's neighbors to the effect that Van Ermen was a model parolee in all other respects.

The trial court stated that the decision to revoke parole is a two-step process, and quoted from Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972):

"The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?"

The court stated that it was clear that Van Ermen had violated the "no drinking" clause of the agreement but concluded that the examiner's finding that failure to revoke would unduly depreciate the seriousness of the violation was not supported by the facts. Because the agent had been aware of similar prior violations but had not taken any action on them, the court concluded that the seriousness of the offense was depreciated by the Department itself.

As to the second finding that parole should be revoked because Van Ermen must be removed from the community to protect it from further criminal activity the trial court again questioned the proof behind the assertion. It concluded, despite the contrary position of the Department, that the Department was basing its finding on the arrest for alleged child molestation. The only other basis for such a finding was a 1972 neurological examination report which indicated that Van Ermen might be dangerous if intoxicated. The trial court concluded that this was not sufficient to show any need to remove Van Ermen from the community for its protection.

In conclusion, the court held that the Department's order was arbitrary and capricious, "representing the Department's will to revoke because of the pending sexual assault charges and not the Department's judgment on the drinking violation." On September 16, 1977, judgment was entered vacating the revocation and ordering the reinstatement of Van Ermen's parole. The Department filed notice of appeal on the same day.

This court ordered the Department to restore Van Ermen to parole status pending appeal. It should also be noted that on October 21, 1977, the sexual molestation charge against Van Ermen was dismissed upon the motion of the Green Lake County District Attorney.

Review of a parole revocation by certiorari is limited to the following questions:

" '(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.' " Snajder v. State, 74 Wis.2d 303, 310, 246 N.W.2d 665, 668 (1976). ²

The trial court concluded that numbers (3) and (4) of the rule were not complied with; that the board's action was arbitrary and capricious, representing its will and not its judgment, and that the evidence did not support the revocation. We disagree, and conclude that the circuit court exceeded the scope of its certiorari review powers. The judgment must be reversed.

When a court on certiorari considers whether the evidence is such that the Department might reasonably have made the order or determination in question, the court is not called upon to weigh the evidence; certiorari is not a de novo review. The inquiry is limited to whether there is substantial evidence to support the Department's decision. State ex rel. Ball v. McPhee, supra, 6 Wis.2d at 200, 94 N.W.2d 711. It is the province of the Department to weigh the evidence in a revocation case. A certiorari court may not substitute its view of the evidence for that of the Department.

There was substantial evidence to support the revocation order. Van Ermen violated a special "no drinking" condition of his parole. The violation of this condition takes an added importance when it is remembered that drinking played...