Pisano v. Shillinger

expressly incorporated they were therein. is no majority reason—and the offers See, Paul Fire and Marine support suggestion Wyo- St. Ins. Co. none—to that 1, 763 Albany County ming attorneys School Dist. No. competence lack the (Wyo.1988). 1258-59 The trial draft an policy. may insurance It this any the lack of myopic court noted exclusion thinking kind that causes the safety agreement highway the W.A.R.M. frequently employ state of high- and concluded that W.A.R.M. covers counsel, counsel, outside often out-of-state However, way safety claims. W.S. 1-39- represent important it in affairs which was effect at the time W.A. litigation. adopted, specifically R.M. was excludes I would hold that there was insurance purport such does not claims. W.A.R.M. 39—118(c)(ii).However, under W.S. 1— liability beyond extend that contained agreement W.A.R.M. does not extend liabil- the Governmental Claims Act. The trial ity design, to negligent street construction was, therefore, wrong. court’s conclusion immunity pro- maintenance because reversed, It should be not because the W.A. 1-39-120, vided under W.S. and the W.A. insurance, agreement R.M. was not but agreement R.M. appellant provided ** * expand because its terms it did not any it did not “waive immunities beyond liability provided the Gov- granted or retained in the statute [Govern- Act, including ernmental Claims W.S. 1-39- mental Claims Act].” 120. I would reverse on the bases stated in reasoning Beyond legal applicable specially concurring this and dissenting case, I this have other concerns about the opinion. result the reaches. If self-insur- insurance, ance is not what is it? What is coverage? are claims How made? they paid? agree

How are I that the non- approach non-liability

insurance resolves particular but foresee a multi- problems

tude of in future cases. l-42-105(c)

ming statute authorized the policies, creation of a board to establish PISANO, Petitioner, George regulations rules and the state-run local governmental program insurance because SHILLINGER, Respondent. Duane program subject was not to the state insurance If laws. W.S. 1-42-109. self-in- No. 90-294. l-39-118(c)(ii) surance under W.S. is not Supreme Wyoming. Court of insurance, then is the W.A.R.M. or unregulated? other self-insurance board July compelled I am to make one final com- majority opinion

ment. The contains the

following footnote: legislative

“We also doubt that the intent making Wyoming attorneys

included who

prepare joint powers agreements into ex-

perts policy on insurance draftsman-

ship.” Maj. op., n. 5. implies Wyoming

The statement attor-

neys competence lack the to draft insur- policies.

ance surely Such criticism is un- Wyoming attorneys

deserved. are called

upon to many types agreements draft very

and contracts and do so well. There 6-4-107, W.S.1977,

then was sentenced years to a term of not less than seven nor years more than fifteen Wyoming Penitentiary. By State order of the ming State Board Parole entered on September Pisano placed was on supervised parole. During 1989, and more particularly a series of events occurred that chronicled in are a Petition Preliminary Hearing for to Determine Probable Cause/Reasonable Grounds for a by parole Violation of Parole filed a officer on November 1990. These events in- presence cluded the place Pisano in a intoxicating beverages sold, where were consumption beverages, alcoholic automobile, damaging damaging an fur- home, nishings leaving in a the state of permission, Wyoming without and failure prescribed to attend mental health counsel- 6, 1990, ing. Secretary On December Parole Board of filed a verified Rec- and, ommendation for Revocation of Parole on a day, that same member of the Board of Parole executed and issued an Order of Arrest. was Pisano arrested on that war- Wyoming Program, Public Defender custody rant and has been since that Munker, Defender, Leonard D. State Public 10, 1990, time. On December a Cornia, Defender, Mike Sr. Asst. for Public Wyoming Department examiner for the petitioner. allega- Probation and Parole found that the Meyer, Gen., B. Joseph Atty. Sylvia Lee violation, parole except tions of for one Haekl, Gen., Deputy Atty. respondent. relating entering place to Pisano a where beverages alcoholic were sold and two re- URBIGKIT, C.J., Before lating having left Pisano the State of THOMAS, CARDINE, MACY and permission, Wyoming had without been GOLDEN, JJ. probable sustained there and that was THOMAS, Justice. cause to recommend that Pisano be re- turned before the Board of Pa- The essential case is hearing. role for the an whether individual who has re- been parole from Wyoming leased on State 19, 1990, On December Pisano Penitentiary is entitled to be admitted to Motion this Court a to Set Bail. On apprehension his bail after and detention as an December Order to Show a violator. The before case comes Why Appearance Cause Amount an juris- as a original the Court matter of the Bond Should Not be Set Order of This corpus. diction of Court in 24,1990, Court was entered. On December Court holds that there is no to bail Response a the State filed to Order to violator, and that the Petition Opposition Show Cause and to Motion to Corpus Writ Habeas denied. should be together Set Bail with a Memorandum of briefly. The facts can be stated On Support Response Oc- Law in of State’s to Or- George (Pisano), Opposition tober Pisano der to and in Show Cause having guilty found been of the crime of Motion to On the day, Set Bail. same an voluntary manslaughter proscribed by Emergency Petition for Writ of Habeas and, lied Pisano do articulate of Pisano

Corpus filed behalf Motion Dismiss revocation. to bail on December for Writ Habeas Emergency Petition respect rule with Sup- of Law in Corpus a Memorandum parole, of in the ab revocation Emergency Peti- to Dismiss port of Motion opportu providing of statute for that sence Corpus were filed of Habeas tion for Writ authority no for a nity, is that there is the Warden on behalf of sought to order release when bail is court (Warden). Penitentiary State See, e.g., Aguilera v. Cali parolee. a issue now before this court The real Corrections, 247 Department fornia of unlawfully restrained is whether Pisano 150, (1966); Cal.Rptr. 292 Cal.App.2d 55 by the he liberty Warden because of his Kotsos, rel. v. Ill.2d People ex Tucker 68 pending a admitted to bail has not been 88, 295, (1977); Ill.Dec. 368 N.E.2d 903 11 parole. of his the revocation Skinner, Calloway v. People ex rel. 33 recognized general 23, 178, We 347 N.E.2d N.Y.2d N.Y.S.2d 300 Queens following right is no to bail (1973); rule that there Hardy v. Warden of 716 Men, statutory authorization. absent conviction House Detention 56 Misc.2d of Sorrentino, 410, Wyo. 233 P. State v. 82 332, (N.Y.Sup.1968); Jan 288 N.Y.S.2d 541 142, (1925). The 1477 thrust of 34 A.L.R. Porter, 768, uary v. 75 Wash.2d 453 Boulter, 263, In re Wyo. 5 Sorrentino Klundt, Ogden v. (1969); 876 15 Wash. (1895), with the views together 39 P. 875 v. 475, (1976); Gaertner App. Crocker, 385, 5 State v. articulated 159, 150 370 35 Wis.2d N.W.2d (1895), right limit the P. 40 681 has been also, N. Cohen & J. Gobert, (1967). See 1, 14, in Article Section to bail articulated 9.03, The Law Probation and Parole of the State of of of the Constitution (1983). pertinent cases are at 417-20 The ming prior conviction. This is to bail no accord that there is constitutional rule found consistent with right Eight Amendment to bail under the Right cited Annotation: cases of of the Constitution of United States Pend- to Bail in State Court Defendant Warden, Metropoli- America. Galante v. ing Appeal Conviction —Modem tan Correctional Center and United (1984). Cases, 237-239 28 A.L.R. 4th Commission, 573 F.2d 707 Parole States Second Judi- State v. District Court of In Thomas, v. (2nd Cir.1977); Pihakis 470 District, (Wyo.1986), cial 191 715 P.2d v. Penn (S.D.N.Y.1979); Lee F.Supp. 721 right is a court did hold that Parole, sylvania Board Probation & of the will of the right subject to substantive v. Burgess (E.D.Pa.1979); F.Supp. 1043 467 procedural legislature. Consequently, Roth, In (E.D.Pa.1979); F.Supp. 1155 387 pre- adopted rules the court would Law, re 21; Cal.Rptr. 10 Cal.3d 109 fol- that authorized bail vail over statutes (1973); People rel. Callo ex 621 513 P.2d lowing conviction. Skinner, 23, 347 N.Y. way v. 33 N.Y.2d Kunkel (1973); 300 N.E.2d 716 question to bail for S.2d The Pennsylvania, v. man Commonwealth in this is a novel violation Parole, 40 Pa. Morrissey v. Board Probation and are satisfied court. We (1979). See, Brewer, 33 396 A.2d 898 92 S.Ct. Cmwlth. 408 U.S. States, (2nd Supreme Argro v. United 505 (1972), F.2d 1374 484 in which L.Ed.2d Connecticut, v. Cir.1974); Roberson 501 articulated the Court the United States Cir.1974); Hamilton v. New (2nd 305 process rights parolee, is not au F.2d Mexico, (10th Cir.1973); Bloss F.2d right to for a constitutional bail. thority (6th Cir.1970); Michigan, case, fact, 421 F.2d 903 court said that in that (1st Cir.1970); Whitney, re 421 F.2d 337 pending a final parolee may be detained Heyd, rel. Fink Morrissey. We also United States ex hearing. affd, W.R.Cr.P., (E.D.La.1968), F.Supp. F.2d 7 are satisfied that Rule cert, denied, (5th Cir.1969), 7-10-104, (§§ 396 U.S. 7-10-101 and statutes (1969); Gen- (June 24 L.Ed.2d 172 Repl.)), and re- W.S.1977 cited (Fla.1974); power Nuckolls, detention as a violator.” 292 So.2d ung v. (La.1977). actual Pitre, issue is 353 So.2d words! Frank v. has attached violation of actu-

The same construction until status of Law; Li majority again of state constitutions. provisions ally been determined. Robinson, 365 A.2d 170 Conn. rephrases actually since in this now istro suspect- there is for a determines parole violator to have bail ed best, foregoing cases es At process. administrative revocation What tablish, is discre judicial appeal is taken from happens Gobert, also, tionary. N. Cohen & J. See revocation is not now that administrative and Parole. We The Law Probation addressed. right no admit hold that Pisano has be and that the record of violations symptomatic, ted to bail decision is as crime This he persuades nation, this court that arithmetically in this instance increases of Pisano’s admitted to bail. solely through should those who find a solution accel seem to manifest an parole violations jail. jail, then throwing people First capacity of to con erating diminution his hearing possible jus- consideration of a and of trol his and to avoid violations even, forbid, behavior reformation tice or heaven Const, need not parole. his We conclude we prevention. Wyo. art. 15.1 appropriate decide in this case what majority and The difference between the if another court should set rule would be my indeterminacy there this writer is about violator. We hold bail for having an actual violation until been right admitted to that Pisano has no to be judicial proceeding the administrative or and, unlawfully consequently, he is not completed to make that determi- has been by the Warden. detained guilt preliminarily I do not assume nation. Therefore, his his Motion to Set Bail and charges accept I do not violation. Emergency Petition for Writ Habeas held; otherwise, hearing is as facts until a are denied. An order Corpus appropriately alternative, the other why bother. With denying the Mo- entered forthwith rights to reincarcerate government leaves Emergency Petition tion to Set Bail and the unsupervised hands of one in the Corpus. for Writ of Habeas completion of the administrative before overtly necessary pro- agency URBIGKIT, C.J., dissenting files a rights protection. vide constitutional opinion. Scarpelli, U.S. 93 S.Ct. Gagnon v. (1973); Morrissey L.Ed.2d 656 URBIGKIT, Justice, dissenting. Chief Brewer, 408 U.S. presented from this decision dissent L.Ed.2d 484 alternatively by Motion to Bail and Set Emergency an Petition for a Writ Habe- I. majority denies Corpus for which this as following dur- access to reincarceration BAIL THE OF RIGHT TO NON-ISSUE administrative directed APPEAL DURING in- majority phrases parole. revoke as- bypassing non-determined but “to be After quiry about entitlement whether consti- guilt, are not faced with a apprehension after his sumed we admitted to bail 1987). interesting thing is that the statistics decision does not address an abstract 1. This 850,000 outdated, e.g., then Dependent in the article are subject. ethnic factors on isolated later, today, just years differences, four almost geographical it is foreseeable confined — "Supervision” cases increased one million. justice system supervi- present criminal that the 3.2 million to somewhere close from about country people, in this of about five million sion continues, in number. five million since if the rate of increase why participation percent population within voter declines. ten of the adult We wonder reach See, significant citizenship right example, forfei- present the discus- One cause lifetimes. Austin, by felony & J. It’s About Time: ture conviction. See Billis sion in J. Irwin (NCCD 1990). (Wyo. Crowding Solving Crisis America’s Prison subject Wyoming parallel law That hypothesized tutional issue right has a upon appeal. regarding post-conviction This is to bail application of bail history. In the conjecture, the basic rather direct and consistent true because without Boulter, following right early Wyo. conviction within case In re of bond today Wyoming (1895), exists that an this court determined discretion P. 875 consistently existed since 1909. express and has forbid admission statute provides precedent no subject proper Consequently, That sentence. bail was not after present decision. judicially for our The court granted. determined law, it matter of under common was a occur “someone” assumed What would away” had been “taken discretion which post-con- existent to eliminate the by statutory provision. sentence Id. after conjectural. Certain- viction bail at best Sorrentino, 39 P. 875. State v. on ly, if the elimination 233 P. was determined the constitutional appeal is directed to chill changed by involv- the law had been after state, then at least appeal in this appeal following ing a second remand appeal constitutionali- one intrinsic to valid judgment provided correction of the surely ques- ty change be in would general issue on the teaching subject tion. The basic right appeal.2 on initial simple phraseology of and direct Const, 1, 14, provision Wyo. of art. § legislature obviously became disen- states: and, result chanted with the re Boulter by suffi- persons All shall be bailable session, ap- provided in its 1909 that sureties, except capital offenses cient to duty “it of the court fix peal shall be proof pre- is evident when given by defen- reasonable bail to be great. sumption Excessive bail shall following conviction of bailable fel- dant” fines required, imposed, nor excessive except degree. ony, murder in second punishment be nor cruel or unusual 136, (1909), ap- 1 Wyo.Sess.Laws ch. inflicted. 27, This of proved 1909. structure Feb. mandatory fol- Wyoming that bail was law appeal is an intrinsic function of Since an conviction, except for lowing non-bailable determination, inter- guilt it takes activated murder, degree was offenses and second pretation by judiciary in constitutional 105, Helton, Wyo. in v. 72 261 terminology visited State application by using that does (1953), in P.2d 46 the context of determin- exception which is not not exist or unstated supreme might grant court right whether the provided deny appeals bail giv- having without first consideration this time in state in 1991. this necticut, Cir.1974); (2d regarding right to F.2d 305 Hamilton cases cited 501 The numerous Mexico, (10th discretionary of bail consideration v. State New 479 F.2d 343 of appeal Cir.1973); have no relevance to the issue Heyd, States ex rel. Fink v. 287 United provided to re- since quest (5th (E.D.La.1968), F.Supp. aff’d, F.2d 7 716 408 cert, at the of bail to be determined discretion 895, 192, Cir.), denied 396 U.S. 90 S.Ct. 24 application stat- the trial court consistent of State, (1969); 172 v. 440 So.2d L.Ed.2d Shabazz It is court rules since 1909. notewor- utes and State, (Ala.Cr.App.1983); Stiegele 1200 v. 685 thy provide these no real di- cases which State, (Alaska App.1984); 1255 Dobrova v. P.2d among catego- rection for our decision divide (Alaska App.1984), 694 P.2d 674 P.2d 834 aff’d classifications, bail, including right to ries and (Alaska 1985); Wassillie, 606 State v. 157 bail, right to be con- to be considered 1980); 189, (Alaska Pipinos, In re Cal.3d 1279 33 particular dependent sidered for bail 730, (1982); Cal.Rptr. 654 P.2d 1257 State v. 187 categories of- and certain of offense involved 82, Handa, (1983); 66 Huihui Haw. conviction, there fenses where after Shimoda, 527, (1982); Haw. 644 64 pending appeal. Intermixed are further State, (Me.1981); People 428 Fredette A.2d 395 used, i.e., process issues of the Tate, 682, Mich.App. 134 352 N.W.2d 297 otherwise, corpus and broad 460, Fikaris, (1984); People v. 101 Misc.2d 421 signifi- posing “a decision about the individual (1979); Spitznas v. 648 P.2d N.Y.S.2d 179 Annotation, Right flight.” cant risk Defen- (Okl.Cr.1982); City 1271 Warwick v. Robalew- Pending Appeal to Bail dant in State Court ski, (1978); Cases, 669 120 R.I. A.2d Ex 28 A.L.R. 4th Conviction—Modem McBride, Hart, (1984). parte S.W.2d Tex.Crim. F.2d See United States v. (10th Cir.1985); v. State Con- Roberson Code, Helton, judge. the of- dification of the Criminal Procedure en trial degree murder so fense was a second dis- chapter Title its involved, court, cretion was chapter Although enactments. principles for the directing attention of the phraseology changed, the statute now court, trial related: provides no overt differentiation between exercising the discretion herein men- [I]n tioned, post-conviction pre-conviction applica- * * * the court should take into providing: tion of bail in as to or not the consideration whether * * * a) for an arrested offense not properly convicted defendant will con- punishable by may death be admitted to duct himself the meantime bail is bail. granted. might incidentally mention We * * * found decisions the fact we have b) pun- arrested for an offense from two courts which was held death be admitted ishable good refusing unless there is reason for at the discretion authorized bail, granted prisoner it should be * * *, judicial except the defen- officer appeal prosecuted good while an dant shall not be admitted to bail if the faith. proof presumption great is evident or the (citing Id. 261 P.2d at 48 State v. Water- man, 36 Idaho 210 P. 208 c) During pendency appeal in of an Marshall, City Sioux Falls v. S.D. (1925)). This court fur- N.W. bailable authorized [the recognized: ther may admit the defendant to bail officer] provision, It is clear that while under this proper. sum he deems mandatory upon judge it is the trial added).3 (emphasis sig- 7-10-101 W.S. grant ordinary felony in the case bail Wyo.Sess.Laws nificant additional facet of [upon appeal], required he is not as a 7-10-102, ch. 147 was W.S. entitled grant matter of law to such in the bail rules,” governed by “Matters wherein it degree case of conviction of second mur- was stated: der. by promulgated The rules Helton, case, 261 P.2d at 47. In supreme govern amount of the in the trial ming bond was vested court shall all court’s discretion. ex rel. Powell v. State terms, relating to the amount matters Ilsley, (Wyo.1963). Interest- bail, justification and conditions of of ingly enough, specific provisions of forfeiture, procedures for sureties and continued in in the 1909 law effect same exoneration enforcement and phraseology by and considered this court or default of the conditions of breach v. District State Court Second Judicial of bail. Dist., (Wyo.1986), de- essence, legislature recognized and post-conviction right termined that a to bail ap- adopted procedure into statute the and consequently substantive and not re- plication provided for W.R.Cr.P. 8 pealed by adoption of rules recog- supreme court. This last case also in 1978. which had been last amended priority corpus nized of of use habeas However, the statute was not confined to right for a test of the to bail. recognition by implied terms of W.R.Cr.P. 33(f) provid- but also included W.R.Cr.P.

II. ing that the defendant be admitted to CURRENT WYOMING STATUTORY pending proceeding a for the revoca- AND RULE PROVISIONS FOR BAIL probation. history of All of this tion linguistic development demonstrates interesting metamorphosis An occurred right regard to the 1909 statute with the reco- to be considered for bail exists Const, right language interpreted only Wyo. If this is to be art. 14 where the § 3. case, grant right permissibly clearly "except capital to bail in each it is absolute offenses.” overtly compared is unconstitutional when any portion exception nal of the time of sentence following with the conviction murder in the second release on and his capital or between his offenses of A to bail when revocation degree. return to the institution unless board we are also exists and probation involved directs otherwise.

istrative revocation left to has discretion diction second possibility that to consider bail consider, although degree murder, where the in a defendant it has pending trial court offense is admin- appeal juris- went Under direction shall: director, 7-13-407(a)(iv) ^[*] probation and ^[*] # states: supervision ^[*] parole agents ^{[*] [*]} period parole. of during his into a bar (iv) of each Supervise per- the conduct specific bail re- In addition to the probation, or conditional son Const, art. Wyo. sources visits, § reports through personal release 1, 2, contains art. Wyoming Constitution § means, report appropriate and other all; process; art. due equality to § writing required by the as often as operation uniform art. § court, board or institution^] Furthermore, in this law. general states: W.S. 7-13-408 Const, significance: Wyo. art. has § (a) offi- The state privilege of the writ notify appropri- cer shall the board or the unless, suspended corpus shall not be ate court or institution determined or invasion the when case rebellion retaking given consideration should be may require it. public safety reincarcerating person under the provides: Constitution supervision department who life, liberty inherent their probation, pa- of his violated a .condition pursuit happiness, all mem- and the release. Prior role other conditional equal. human race are bers of the notification, hearing shall be held Const, art. this section within a rea- accordance with time, life, sonable unless deprived waived No probationer, parolee liberty or conditional property without practicable, law. soon as releasee. As follow- any hearing, the ing ap- termination of Const, Wyo. 6. art. § agent report propriate officer or to general shall have All laws of a nature court, institution, or a the board furnish operation. uniform a copy hearing the record make Const, art. 34. regarding disposi- the recommendations 7-13- Applicable include W.S. statutes parol- the probationer, tion to be made of 7-13-407(a)(iv), 403, 7-13-404, and 7-13- Pending any or ee conditional releasee. 7-13-403 states: section, proceeding pursuant to this the (a) parolee legal custody A is in the custody appropriate agent may take under control of the board and probationer, parolee and detain the or from may be returned to institution for a conditional releasee involved rea- paroled he violation a which was period prior sonable of time to the hear- parole. his condition of ing. hearing If to appears officer (b) by ordered retaking Unless otherwise agent or or reincarceration board, parole shall be returned follow, violator likely agent may to take he was to the institution re- custody probationer, of and detain the orig- of his leased to serve the remainder parolee for a rea- or conditional releasee inal sentence. hearing period sonable after the or waiv- arrange may necessary er as be added.) (Emphasis W.S. 7-13-404 states: retaking or reincareeration. the sen- computing the remainder of (b) pursuant violator, Any hearing to this sec- served tence given origi- may his tion the state against no credit shall be be before officer, (2) designated Upon During penden- his hear- Review.— any person cy judge officer or other autho- appeal, justice or of a court pursuant rized of this state to laws having jurisdiction may admit a defen- alleged probation, parole hear cases of or dant in such sum as shall be violations, except conditional release proper deemed in all bailable cases. The hearing person officer shall judge justice allowing may or making allegation of violation. time revoke or amend the order admit- (c) respect any hearing pursu- With ting the defendant to bail. section, probationer, parol-

ant to this

ee or conditional releasee:

(i) notice in (c) Shall reasonable Terms. writing of the nature and content of (1) Any person charged with an of- allegations including to be made punishable fense other than an offense purpose notice that the of the death, shall, appearance at his before proba- is to determine whether there is judicial officer, be ordered released that he com- ble cause believe personal trial on his recogni- mitted a violation that lead to a zance the execution of an unse- probation, parole revocation of or con- appearance cured bond in an amount release; ditional specified officer, judicial unless (ii) permitted Shall be to consult officer determines the ex- any persons whose he assistance ercise of his discretion that such a re- desires, reasonably prior hear- reasonably ap- lease will not insure the ing! pearance person required. of the (iii) Shall have the to confront such a When determination is made the any person and examine who has made shall, judicial officer either in lieu of or in allegations him, against unless the relief, addition to the above methods of hearing officer determines that impose following the first of the condi- present confrontation would a substan- reasonably tions release which will present subsequent danger tial appearance assure the of the person; harm to the or, single gives trial if no condition (iv) admit, May deny explain assurance, any combination follow- alleged may present violation ing conditions: proof, including and other affidavits evidence, support of his contentions. (d) A record of proceedings under determining which conditions of preserved this section shall be made and reasonably appear- release will assure by stenographic either through means or ance, shall, the officer on the recording the use of a machine. information, basis of available take into provides pertinent part:

W.R.Cr.P. 8 in account the nature circumstances of (a) Right to bail. charged, weight the offense the of the accused, against evidence the Before the ac- person Conviction.—A ar- ties, family employment, rested for an cused’s finan- punishable by offense not resources, cial character death shall A and mental con- person be admitted to bail. dition, length the of his residence in the punishable by arrested for an offense community, his record of may death convictions and any be admitted to bail appearance judge pro- his record of at court court or authorized law to do so ceedings flight discretion, prosecution or of to avoid giving in the exercise of appear proceedings. or failure to weight to the court evidence and to the nature offense, except and circumstances of the proof

that where the is evident or the presumption great (h) a defendant shall not corpus. Any per- Habeas accused — be admitted to bail. aggrieved by application son of this State, (1991); Weisser v. for a writ of habeas may apply

rule State, (Wyo.1979); and Knobel v. P.2d corpus. (Wyo.1978). 33(f) states: W.R.Cr.P. probation. court

Revocation of —The III. except probation after a revoke shall be hearing at which defendant OF TO BE THE REAL ISSUE RIGHT grounds apprised on present and of FOR CONSIDERED BAIL DURING proposed. action is de- which such PAROLE PROBATION REVOCA- OR pending may admitted to bail fendant TION hearing. such of the determina- decisional quot- previously has been W.S. 7-10-101 minority tion of or rule within the 7-10-102, which ed and is W.S. followed interesting always is but well illustrat- law states: jurisdictions ed on issue of states or promulgated by The rules deny right revocation which govern all ming supreme court shall processes. probation of or terms, amount relating to the matters bail, justification and conditions A. states. non-bail forfeiture, procedures sureties exoneration enforcement states, among fifty Jurisdictions cited conditions of or default breach the United District of Columbia and bail. States, undoubtedly sort of where some deny probation or exists which 7-10-104 states: process, possi- during the could (a) charged person A commis- bly total three and fourth serious sion bailable offense ad- Washington jur- is question. principal by: mitted to bail Klundt, Ogden v. 15 Wash. isdiction cited. (i) court; supreme justice A (1976); January App. 550 P.2d (ii) judge A district or district court Porter, 768, 453 P.2d 876 75 Wash.2d of the district which commissioner Ogden, at 39 determined charged; person is “[ajbsent express statutory authoriza- (iii) county county judge, A court tion, Washington the courts of are without county adjunct or court commissioner power parolee on release bond county commissioner which violating in custody arrested held charged; person People Calloway ex rel. See parole.” his (iv) justice peace A of the Skinner, 347 N.Y.S.2d 33 N.Y.2d charged. county (1973), 300 N.E.2d 716 based admin- impression application Two first issues responsibility parolee agency istrative within statutes are defined Gaertner conduct and 35 Wis.2d terminology, of whether the (1967), where the N.W.2d time,” period of means until “a reasonable burglary charge concur- completed and a reincarceration proceeding joined rent violation petition to whether a revoke specific entitling Without could be denied. categorization in the parole is included legislation, parolees are not entitled bail criminal offense. hearing. Hardy pending or release Queens House Parallel to the administrative revocation Warden Detention for Men, probation 56 equally Misc.2d 288 N.Y.S.2d 541 process relates which (N.Y.Sup.1968). cited parole, judicially by there is created fourth state and county attorney petition majority justify and the State to process through Cooney v. Park principle and court decision. See Kunkelman by same is reflected Com., County, Pennsylvania cert. Bd. 1287 Probation (Wyo.1990), — Parole, and judgment vacated 40 Pa.Cmwlth. granted and U.S. A.2d Kunkelman, (1979). —, petitioner In 115 L.Ed.2d 965 nothing by corpus. which have to do with the challenged a detainer relief requested Adjudicatively, rather here. this The issue was not revocation but case presents right parolee denied. of the detainer from which bail was to be judicially considered for bail admin- accuracy complete In interest of proceedings, istrative revocation which ness, by cited although the cases were not provided by right specifically court rules majority, there are two other states process judicial if the revocation. approach apparently a different which probation parole and revocation. between To make some sense out of this “Alice in California, that a it is determined Wonderland”, where subjects is best exclude custody in parolee technically remains presented. that are not To be disconnected although not in serving his sentence previously discussed in detail is bail custody, jurisdiction during the physical since it has existed in after conviction remains in the revocation ming since 1909. The difference between waiting cancellation is and the individual right pre-conviction with limita- eligible parole. Aguilera for California considered for tions and the to be Corrections, pt. 247 Cal. post-conviction as a matter of discretion De (1966). App.2d Cal.Rptr. See presented after are neither conviction sub- directly point in similarly, although not jects reasonably dispute. here nor issues question, involving “parole hold” since issue, way If someone finds a to create the Law, 21, 109 Cal.Rptr. re 10 Cal.3d enough appropri- time can the future (1973). seems to follow Illinois ately assigned judicial review when it People the same thesis. ex rel. Tucker v. Comment, has a real issue. Constitution- Kotsos, Ill.2d 11 Ill.Dec. Bail, Right al 51 Mich.L.Rev. Law— (1977). ad N.E.2d 903 The Illinois court Identically, proceeding this equal protection by contention dressed an present does not the absolute of the different treatment between virtue parolee; it addresses the to be probation parole. That court found the pending revocation considered rights protected by constitutional test now broad compel of mandamus to action on revoca language apparently denies. The discre- “parole hold” tion. What was effect a generally prevalent is con- tion umbrella for one of the indi status was majority’s decision into an verted appeal. included in the viduals who was jurisdiction judi- of the alternative decision Furthermore, proceeding this ciary to act. Alice would indeed be at home questions only administrative revocation make the issues here “Wonderland” we since, by rule and case proceedings both parolee who asks consider- law, recognized right this court completion of the ation for bail pending judi- responsibility to consider bail proceeding. administrative revocation Ob- cial revocation. time, viously by this those issues for the way or since he

case are moot one another although not Finally, proceeding, penitentiary under a is either the state revocation, provides no authenti- revoked status or continues on cation for a different result whether the rejected, revocation but we retain an issue in initi- action is administrative significance which in this odd dis- about agency since the state ation administrative cussion, significant rights important statute, 7-13-408, does not procedural questions are considered.4 probation, differentiate nor does ap- design a to be W.R.Cr.P. 8 difference The issue should be confined sub- plied post-conviction added as a function of ject presented without flourishes Commission, important Substantively, 219 U.S. this case involves an v. Interstate Commerce capable 498, 515, 279, 283, (1911); reoccurring issue of law which S.Ct. 55 L.Ed. 310 31 County evading Dist. Wassillie, (Alaska 1980); review. Natrona School v. State 1019, (Wyo.1988); Ryan, No. 764 P.2d 1032 1 Robinson, 170 Conn. 365 A.2d 109 Liistro v. Doe, Honig S.Ct. 484 U.S. 108 98 (1988); Southern Pac. Terminal Co. L.Ed.2d 686 284 embarking an case Clearly, Before extensive responsibility. this court

court’s majori- it should noted the Knobel, analysis, and 576 Weisser, 600 P.2d 1820 ty things two determines does procedural declined to delineate —first for and petitioner to bail existed no parole probation and difference between * * * best, the then concludes that “[a]t identity the recognizing when revocation grant discretionary.” I authority to is bail by United Su- application used the States discretionary authority is say worst the at U.S. preme Gagnon, Court to as a fact purports and this court act Morrissey, U.S. S.Ct. 1756 properly developed record finder without a Weisser, P.2d at S.Ct. 2593. We said petitioner for opportunity the and without 1:n. factually now exer- respond where we Scarpelli, U.S. Gagnon discretionary decision for denial. cise a (1973),the 36 L.Ed.2d 656 93 S.Ct. date, Obviously argument about this late be- important differences Court found is like propriety the of exercised discretion parole revocation tween swatting delayed moths wet in this area’s Morrissey the proceedings and extended All spring. It does not now reach realism. requirements probation- due-process in this was bail anyone ever wanted case proceedings. revocation by petitioner until the few weeks for statute, 7- agency administrative held, hearing final revocation could be 13-408, indiscriminately applies and with- passed. seem to now some months We “probation, parole or out differentiation to again leverage here en- sample of law other conditional release.” There is incarceration. forcement—instant not, Having excluded this case is any present- what kind no factual record of here decision discretionary we of what this can deni- reach ed sustain which in administra- actually is about—whether al decision. proba- of either

tive revocation Consequently, question: consider we tion, rights to obtain consideration do parolee to be con- Should a exist? by judicial action Wyoming for bail under law when sidered process is the administrative revocation judicial authority to limit decline pursued? know that the Since we justice character so that this subject is in board recision decision itself pro- judicial is revocation confined review, hereby determine we whether Furthermore, compelling I find no cesses. sometimes, always, or never available specific precedent addressing this issue consideration.5 conflicting requires a conclusion which many provided in the among the citations protection equal due The fundamental might any which be add- others process parol- law was established for Con- ed. I find eases of ee-probationer by Gagnon, stitution, and this court's our state statutes Morrissey, U.S. S.Ct. protection equal rules by buttressed 471, 92 2593. conditional U.S. requirements provide due which parolee (probationer) generat- freedom of a equally termination with liberty protected by statute is a interest ed category of procedure generally Four- by the Due Process Clause of the post-conviction appeal Until authorization. may not be ter- teenth Amendment which attempt key away com- process safeguards. we throw minated everyone sta- Morrissey within broad pletely mandated tus, adjudicative justification for socie- parallel I find no on the interest of bottomed rights parolee establishing ty to be considered for bail and the whether limitation so, and, action to reincarcerate violation has occurred when administrative under whether all of the circumstances is commenced. provided appeal Clearly, public of the courts occur defender could legal agency significant re- denial or habeas cor- nor extended administrative record remedy Addressing specifically jurisdiction approach pus as a included search. obviously 8(h). participation in accord case law in W.R.Cr.P.

285 integration and eventual quality of violation calls habilitation into Furthermore, 429 Moody Daggett, society. expan- See revocation. the recent 85, 78, 274, 97 50 L.Ed.2d 236 S.Ct. probationer’s rights U.S. in the area of sion (1976). These the existence cases establish Supreme the United States Court in rights constitutionally which are of basic 411 Gagnon Scarpelli, U.S. 93 protected the United States Constitu- (1973) sug- 36 L.Ed.2d 656 tion. gests granting Gagnon, of bail. Court, alia, required inter a mat- as

It is with the character of those estab process probationer ter of due that a rights supplemented by lished basic as due hearing prompt preliminary afforded a process equal protection considerations apply Wyo. probable that I art. 8 and determine whether cause exists Const. §§ 2,6 power separation as art. well a violation believe provision, to discern from the somewhat Following preliminary occurred. disconnected status of statutes and court hearing, a final must be allowed rules that the to consideration of bail prior to an ultimate determination con- exists has to exist under our but cerning probation. the revocation of process equal protection re own State, at 1398. Id. See likewise Dobrova v. Annotation, quirements. Validity, See (Alaska App.1984), 674 P.2d 834 aff'd Equal Under Protection Clause Four (Alaska 1985). Amendment, Re teenth State Statutes A similar to discretional considera Parole or Pardon lating to Convicted Shimoda, Criminal, tion was found Huihui v. 35 L.Ed.2d 775 and Anno tation, (1982), Right in State Court Haw. 644 P.2d 968 where the of Defendant Pending Appeal recharged to Bail Convic accused was on bail and with Cases, tion —Modern 28 A.L.R. 4th another serious offense. A state constitu statutory found in elim tional violation was ination of discretion. The discre countervailing authority judiciary tionary right of the Washington-New rule was York-Wisconsin pro pending completion of the revocation formulated with extensive discussion in ceeding recognized is also in a series of (Alaska Martin v. Galante-Appel eases: federal Carmine 1974), where the discretional interest Warden, Metropolitan lant v. Correction making bail available the revocation affirmatively considered. al Center and the United States Parole was * * * (2d Commission-Appellees, 573 F.2d 707 appellant we hold that While Cir.1977); States, Argro v. 505 F.2d United neither entitled to bail under the Alaska (2d Cir.1974); 1377-78 and Pihakis v. Act, Bail Constitution nor the Alaska we Thomas, (S.D.N.Y.1979). F.Supp. suggest bail should be withheld through general, bail was considered proceedings only in unusual corpus. power exercise of the of habeas judges Trial have wide latitude in cases. Marsh, (3rd 227 F.2d 528 Cir. Johnston imposing prehear- conditions for suitable 1955); release, Siegel Parole v. United States other than the denial of bail. (S.D.Fla.1985); Com’n, F.Supp. may The denial of bail constitute a need- Luther, disruption probation process ex rel. Hebei v. less of the United States (N.D.Ill.1982). program’s objectives F.Supp. of re- negating See likewise Const, Const, Wyo. previous- Wyo. provides: art. 6 and 14 were art. §§ § two, ly quoted pages respectively, powers government five and of this state Const, provides: departments: this dissent. art. are divided into three distinct legislative, judicial, executive and and no open every person All courts shall be charged persons or collection of injury person, reputation for an done to belonging powers properly justice the exercise of property with- administered sale, departments delay. one of these shall exercise out denial or Suits brought against powers properly belonging others, to either of the the state in such manner legislature may by except expressly law as in this constitution in such courts as the permitted. direct. directed or subject re- addressing That text 1374; v. Nuc Genung F.2d Argro, (Fla.1974); lates: Bernhardt kolls, 292 So.2d (Fla.1974); and State, 288 So.2d

v. courts, including some federal few [A] (La.1977). Pitre, 353 So.2d v. Frank ones, parolees to granted bail have (7th Molina, 627 F.2d 71 Luther irrespective Cf. of the lack of probationers, Cir.1980). statutory language on constitutional authority for this for this address The source of subject point. that we It is that Gobart, agreed upon, & J. al- totally in N. Cohen result appeal as outlined Parole, 9.03 on the appears to be based though § Probation The Law of em- (footnotes omitted and (1983) general powers. One inherent at 416-17 court’s original): common law phasis judges that have view is persons under authority to admit to bail course, of a constitutional the lack Of execution of custody, at least until preclude states their does not may help power this proceed- While allowing in revocation the sentence. bail if it it is doubtful probationers, not address laws do some ings. Most state longer proba- are no parolees who extends bail jurisdictions A related view jurisdiction. Of those under court tion revocation. point, probationers that, point, courts on statutes on having statutes absent right to be grant bail to generally accorded inherent are pa- frequently, Clearly, Less lawfully for bail. them. persons considered before to be opportunity given awaiting are hear- rolees a revocation probationer being qualify released on bail. as before ing would hand, Parolees, may the other has led to court. in treatment difference This as habeas such remedies have to use claim a viola- parolees in which litigation the ambit of corpus to come within proba- protection vis-a-vis equal tion Finally, some jurisdiction. court’s parolees argument The tioners. statutes, courts, controlling subject to no functionally similar probationers are power they have the Supreme simply conclude by the supported somewhat proceed- pending revocation Scarpelli Gagnon dictum Court’s the source of identifying 778, 782, ings 1759- without U.S. [411 authority. their to the effect L.Ed.2d 656 ] Morrissey tion of parole revocation to revocation the revocation [367 ing with stated: [D]ue whether does not should not be question * * * guarantee F.Supp. ^[*] there is no probation.” In United States applies procedural ^[*] require consideration general proposition that of due proceedings, certainly commends “difference admitted ^[*] parole and the revoca- * * (E.D.N.Y.1973)], a process between ^[*] * court, relevant to Schrieber, cryptically ^[*] defendant process if the start- if it ^[*] jurisdiction and Id. at 418. ty acted law in tion of the tion to 1-27-128. W.R.Cr.P. discretionary cating factual record. of habeas ing §§ 7-10-101, corpus is undertake initiating remedy first jurisdiction recognition of the inadvisably corpus to assess 8 and 7-10-102 and 7-3-216 decision constitutional writ recognized by court rule the evaluation then by legislative authentica- existed here, alternatively consider- without an historical stature first in why found in habe- deny rejecting authenti- in addi- majori- statutory provision re- Wyoming bail of the defen- circumstances individual corpus, in almost traceable of re- lated postponement case make dant’s first present, can be identical form of Parole until the Board commitment Compiled Wyoming, Laws weigh- found a careful the course which acts 37: ch. involved dictates. of he values equally charge- also, probationer, who case be may, plaintiff offense, granted bail, with fault or is to be committed, or his bail be miti- able let to judicial in increased, to consideration for bail justice may as re- access or gated proceeding. quire. later,

Now, years is found as W.S. application also in I would look further 1-27-128: twentieth-century considerations to committed, that came into the law before phraseology let to petitioner may be Wyoming or mitigated parole increased existed the Constitution his bail be

bail or I the adopted. would find offense requires. justice as (W.S. 7-10-104) equally 7-10-101 and §§ the apparent as demonstrated from It is justifying reincarcera- extend to conduct previ- federal law generally unquestioned probationer parolee tion of the or the fol- court, any as habeas ously cited that this lowing the case for revocation as would be court, authority grant has recognized It felony conviction. proceeding. pendency of the habeas “offense” can traced back to the word Furthermore, addressed in specifically as Wyoming, ch. Compiled Laws of rule, 8, the Wyoming bail W.R.Cr.P. 42, including concept for which the issues is proper proceeding to address bail answer, recognizance “a prisoner is held to 8(h). corpus. W.R.Cr.P. habeas appearance for his to answer shall be taken effectively speedy enforced tri- Wyoming charge before the court which properly demon- al one time which then cognizable[.]” Those words can be same is great uti- validity of the writ’s strated precisely fit within the jurisdiction. lization within this State agency criteria “to deter- administrative (1908). An Keefe, Wyo. 98 P. probable cause to mine whether there is contempt of court case resolved extended committed a that he has violation believe corpus re- through habeas by this court * * may lead to a revocation W.S. provides further valuable re- lease some 7-13-408(c)(i). Shaver, Miskimins v. view. statutory terminology is Noteworthy in 58 P. 411 provisions empower the the arrest which through I assurance obtain comfortable parole agent a limitation of a reasonable concepts judiciary determined legal is obtained or an time until a warrant corpus jurisdiction habeas hearing is held under the administrative proceeding any reconfinement revocation process serves the same statute. This concept of this as a basic constitutional hearing in preliminary function as a government power and the branch of context. Nowhere initial criminal trial corpus. We are then not habeas statute, 7- probation-parole entire W.S. agency pro- parole-administrative with 13-401, suggestion provided that ceeding probationary- difference from statutes, 8 or the bail either W.R.Cr.P. clearly to bail judicial process where 7-10-104, both of which W.S. 7-10-101 and I rule and statute. find exists under both proba- of the predate the last re-enactment Morrissey a delinea- Gagnon then statute, tion-parole exclude which, equal protection-due process tion of process from the to differentiate one serve Constitution, under the would other.7 authority inquire properly leave and follow- pa- Starting with the constitution summary reincarceration of the when law, statute, rule and case occurs in the same fashion that rolee involving not “Probation” means a sentence Unquestionably, is a difference in defini- there imposes probation conditions and under W.S. confinement which tion between provisions sentencing other of law. W.S. 7-13-401 and in the court retains 7-13-401(a)(vii) states: modify conditions of the sentence or the con- resentence the offender if he violates permission con- "Parole” means to leave the ditions!.] institution in which a fines of the recognized conditions, way, the difference is In a another specified but does confined under Weisser, discharge also this court in operate person[.] in comment of the 7-13-401(a)(x) P.2d at 1324: states: To good society produced. authority of will be application conjunctive exemp- suggest that there an absolute parolee to both board all circum- imprisonment tion from under confused. Out of is at best probationer every incongruent with stances would be this, that an offense conclude all of would society, political notion law incarceration for which is an occurrence of all civil the end would be destructive and, consequence, either as a result Therefore, those incarcer- liberties. jurisdiction case the direct necessi- ations arise from absolute intervention with through corpus “Every act of ty just. are jurisdiction to assure court has parole, the another, for which there is one man over for rein- until a basis that bail is available necessity tyrannical.” is not absolute properly established is either carceration only spirit principles are not These absolutely there was rejected. this case law, very the common but the foundation indication, sug- evidence, argument or political philosophy upon American petitioner would gestion that this afforded rests. voluntarily make himself available hearing or revocation proceedings. Conse- ^{[*] [*] [*] [*] [*] [*]} during this decisional quently, denial of bail deep Eng- into The roots of bail extend rele- for final determination period required originated Bail as a device to lish law. to the time gates governmental conduct payment “wergeld.” It insure the bail, any time past centuries when developed into a mechanism for later form, unlikely or nonexistent once freeing prisoners. untried Bail’s func- impose “authority” con- determined give liberty prison- to a tion is not ini- presentation of the finement er, the extent of the law. but to secure charge. tial Thus, recurring question those designing system charged the bail IV. has been where to strike balance individual and social charac- between the CONCLUSION ter of man. from the denial of respectfully I dissent Duker, A Right to Bail: Historical corpus which was petition for habeas (1977) 33-119 Inquiry, Alb.L.Rev. during the administra- filed to obtain Debaccaria, Essay An (quoting M. Hopefully, dis- proceeding. tive revocation and foot- and Punishment Crime Cooney, regarding what occurred omitted). I do not find that balance notes mean that a to bail should properly struck here. to have been provided. to bail would be Consequently, respectfully dissent. legal great English commentators inherent in the common law is tell us that regard personal for a man’s profound Nevertheless, imprisonment is freedom. premise that some imposed under the exclusively through the administrative might to observe that this fected appropriate It (§ 7-13-409) questionable value processes. statute concern, light However, is the of our statutory where holdings Reisch, the constitutional case, Knobel, supra, State v. concepts if that conduct consti- are not altered (Wyo.1971), and Smith 491 P.2d 1254 tuting endangers the individu- an offense which (Wyo.1979). In the appropriately proven al with reincarceration said, essence, opinions we two latter the district court never proceeding: in some revocation jurisdiction loses over probation and officer shall The state probationers. the Reisch we its own notify appropriate or the court or the board 33(f) Rule is consistent with held that it is determined consideration institution if grant probation concept that courts which retaking reincarcerating given should be power to revoke it. inherent supervision depart- under the however, not, upon possi- pass here We do has violated a condition of his ment who might separation-of-powers issue which ble probation, other conditional release. pro- revocation of in a case where 7-13-408(a). sought be ef- bation under 7-13-409

Case Details

Case Name: Pisano v. Shillinger

Court Name: Wyoming Supreme Court

Date Published: Jul 26, 1991

Citation: 814 P.2d 274

Docket Number: 90-294

Court Abbreviation: Wyo.