*1 (3), Thus, would violative of sec. 111.36 Stats. opinion department this court that the order solely by limiting application modified must be its complaint. as Such order modified affirmed.
By Judgment modified, modified as and, Court. — affirmed. Secretary Appellant, Cresci, ex Schmidt,
State rel. Department Services, of Health & Social Respondent.* Argued February 4,
No. 151. March 1974. Decided 1974. (Also reported 361.) 215 W.N. * rehearing denied, Motion for May costs, without *3 by appellant C. Wood For the James there a brief by Egre reply James Milwaukee, Dennis C. brief argument Associates, Milwaukee, oral Wood & all by James C. Wood. argued respondent by
For the Charles the cause was R. attorney оn the Larsen, assistant with whom general, attorney general. Warren, Robert briefs was W.
A brief curiae David Glowers amicus R. filed for Wisconsin Civil Union. Milwaukee Liberties F. Ebbott of A amicus curiae was filed John brief Rights, Milwaukee for Latin American Union Civil Community Together, Inc. Inc., and Felons and August *4 4, J. On James T. T. Hansen, Connor Milwaukee in the circuit court for convicted Cresci was robbery, contrary to county sec. of two counts armed terms of ten 943.32, was sentenced two Cresci Stats. crimes, years prison these in the state for each Wisconsin concurrently. to run two sentences paroled 22, 1970, on manda- Cresci was On December agreement signed parole on tory and standard release date. this same in 19, 1971, Milwaukee
On Cresci was arrested June county operating a motor vehicle without a for driver’s obstructing an officer. license and 21, Larsen, parole agent, On June Bruce Cresci’s County Cresci at the Milwaukee Jail interviewed and dis- possibility day, cussed The next revocation. parole signed hold on Cresci after was released Cresci an agrеement. agreement parole amended The amended original agreement except was identical following added the additional conditions: any “7. operate I will not at time a motor vehicle. County “8. I will not travel out of Milwaukee without permission my parole agent. agree “9. I p. weekdays to a curfew of m. on 12:00 Friday Saturday Nights.” on 1:00 a. m. & days Three later, 25,1971, June on Cresci was arrested Sheboygan friends, with three Roman, Mrs. Rachel Margaret Rosso, charges Thomas Langer, Rose issuing worthless At checks. the time Cresci was arrested he had possession. He $700 claimed of this $500 given sum had been to him his mother as bail for a custody. brother who was in The escaped, brother had hence the bail not needed had returned the money to his mother. subsequently
Larsen was notified of Cresci’s arrest Sheboygan parole and decided recommend that Cresci’s requested be revoked. hearing Cresci hearing and Donald Schneider, R. examiner, notified Cresci, by July 25, letter dated that a had been July 80, set for 1971, which would determine whether there was cause revocation of his following based reasons: “1. operating You admitted to a vehicle without permission your advance supervising agent and without operator’s an giving license a false name and producing person’s another operator’s police license to a 19,1971; officer on June “2. traveling You admitted to out of Milwaukee County Sheboygan, Wisconsin, you where were ar- *5 your of violation 25, 1971, in direct rested on June agreement 22,1971.” of parole June amended parole revoсa- at the Larsen and testified Cresci both hearing hearing examiner, tion held Schneider. before given not that he had Larsen at the testified county after he permission to leave Milwaukee Cresci agreed signed agreement he in which had had he permission. admitted that not to leave Cresci without that he permission, without but claimed left Milwaukee morning driving of June 25th had been around asleep he in the fell with his three other friends when he dis- was awakened car, back seat of and when he They Sheboygan. they to werе covered that had driven going stop eat to return Milwaukee decided but charge they They check as arrested on the first. were leaving the were restaurant. Langer affidavits,
Roman, all Rosso submitted hearing, that Cresci not involved also testified at the Sheboygan. passing in the checks in Counsel bad charge argues Cresci, check appeal, on this that against has Cresci been dismissed. Langer Roman,
Cresci testified that when Rosso morning 25th, at came his house on the June about they m., if wanted or 11 o’clock a. аsked him he “. . . thought they go riding he around.” Cresci said meant leaving riding they meant not realize around town and did town. Langer that Cresci had
Roman, Rosso and all testified way Sheboygan. slept all the Rosso had driven car they Budget rented from rental and claimed which territorial they that know restriction did agreement. also testified that Rosso when Cresci’s morning, ap- they house Cresci went to Cresci’s done peared tired. further Cresci testified some had evening. heavy drinking previous plans Langer group morning had testified going Sheboygan, but thаt Cresci had no idea *6 they going- what and fallen in the asleep were to do had ear. hearing,
At conclusion the examiner filed a synopsis testimony findings of fact with and his The bureau recommendation. examiner found proven allegations. had established its The examiner parolee also found “. . the credi- . witnesses’ subject bility suspicion,” severe and that action capricious arbitrary. of the bureau was neither nor The examiner recommended A formal revocation. revocation subsequently secrеtary order was issued by Department of Health & Social Services. September 3, sought 1971,
On Cresci review decision certiorari in Milwaukee circuit court. On 1971, department October the action taken revoking parole was arbitrary found be neither nor capricious by the circuit court. appears subsequent parole
It also revocation, subject which is again this appeal, Cresci was paroled. While thus on parole, he was arrested con- of robbery victed and sentenced to a term years, of ten run concurrent with the sentеnce which he had been paroled.
The appeal issues raised on this are as follows: department’s 1. Whether revocation of Cresci’s parole arbitrary capricious ?
2. Whether Cresci was improperly denied his the assistance of counsel hearing? at his
Revocation. In State ex Cady rel. Johnson v. (1971), 50 2dWis. 540, 547, 185 N. W. it was determined that al- though there statutory right was no to a revoca- hearing: tion process fair- requirements due “. . . basic require department provide a limited hear-
ness that the ing with their petitiоners to allow be confronted they if desire. and to be heard so violation *7 requirements of Johnson further basic the considered required process hearing of the due at such a and record Morrissey hearing. Subsequently, v. Brewer such a in (1972), Sup. 92 33 L. Ed. U. Ct. S. Supreme that 484, the United Court determined States process re- the due clause of the amendment fourteenth quired opportunity the an an that state afford individual prior parole at stated, to heard to of and be revocation page 480: begin proposition the the “We with revocation parole part prosecution of
of the full not a and thus criminal rights panoply pro- a due defendant such a ceeding parole does not to . .” apply revocations. . discussing stages revocation, In parole various of a the Supreme emphasized the there United Court States thought equate no revocation the actual was hearing prosecution any Thus, to a criminal sense. having applies process due determined that proceedings, questiоn “the what remains Morrissey supra, page process Brewer, due?” answering it the question, was determined requirements (a) process include minimum due written parole; (b) notice of the violations of disclosure claimed against him; (c) opportunity parolee the evidence present person docu- heard and witnesses and be mentary evidence; (d) the to confront and cross- (unless hearing examine witnesses the adverse officer good allowing specifically cause for not confronta- finds tion) ; (е) body “neutral detached” such as a and parole board, traditional members of which a need not lawyers; (f) judicial officers and written statement by relied on and the fact-finders evidence as to the revolting parole. reasons for supra, page 550, Cady,
In State ex Johnson v. rel. hearing could be the revocation held that review of conviction, obtained certiorari the court of issued and stated: scope re- “. . . further conclude that We department’s view be addressed whether shall arbitrary сapricious represented action was and its judgment. will and its “ presumed it informa- ‘The board is to have had before revocation, tion which warranted the order of its determination matter is conclusive unless prisoner prove by preponderance can evidence capricious. arbitrary action That board’s squarely prisoner, burden rests sustain if he fails to burden, the courts interfere with the will not ”
board’s decision. . .’ . *8 parole the hearing, At revocation that Cresei admitted 1971, 19, when arrested for the traffic violation on June gave police he the officer false name and and address using he had altered he at that the driver’s license the was However, the record that time. reflects in recommenda- placed strong emphasis for revocation, tion the examiner Sheboygan episode. on the also he Cresei admitted that county parole agent’s left Milwaukee without his knowl- edge Sheyboygan or and went to consent with his friends 25, impossible on June deny 1971. It for him was to this Sheboygan day. because arrested the It same neсessary pass for the examiner to the credibili- ty witnesses, specifically and he addressed himself subject. to performing the responsibility, the rejected testimony examiner the of Cresei and wit- his nesses to the effect that Cresei had not known June go party that the intended from to Milwaukee Sheyboygan they to until after Sheboygan. arrived rejection and haveWe record examined arbitrary testimony and witnesses was not Cresci his capricious. therefore, as to We, nor conclude that grounds fol- procedure parole for revocation John- doing, ex rel. lowed in the mandate of both State so Morrissey Brewer, supra, Cady, supra, were son v. substantially not met his and the defendant has followed proving to arbi- revoke was burden of that decision trary capricious. or
Right to counsel. to whether There be considered issue of remains improperly denied his assistance Cresci was hearing. of counsel at his Schneider, prior hearing, Examiner to stated nor the bureau of neither Cresci to have the assistance оf at the would be entitled counsel lawyer hearing. Shortly Raymond Porter, thereafter, hearing, appeared at the asked be who with Cresci agreed represent present Porter to abide Cresci. participation and was the examiner’s decision as appear from the record permitted remain. It does anything attempted say or do which Porter ever appears prohibited. Rather, that Porter the examiner agreed examiner Porter be an inactive would attempted point participant. Porter make a When heard, Cresci, to do However, he was allowed so. questioned part, the witnesses on his own the most behalf. *9 participate that counsel could The decision not was ruling undoubtedly of court in based Cady. supra, page Johnson, ex Johnson v. In rel. State majority 554, limited and we followed courts Mempa Rhay 128, Sup. 254, 389 (1967), S. 88 Ct. v. U. stating: particular 336, to facts, 19 its L. Ed.
410 Mempa majority “However, of courts considered apply require context, factual not its thus hearing. probation at a or counsel revocation We holdings adopt majority here of the determine presence that the of counsel the revocation is at required.”
Subsequent Johnson, to our decision in United Appeals Court of States Circuit con Seventh probation the matter of in sidered revocation adult appeals. Gagnon; four v. Fink consolidated Gunsolus Hoppe Cady; Scarpelli Gagnon & v. (1971), v. 454 cases, Fed. 2d In these it decided that retained participate counsel must be allowed to revo hearing and, probаtioner process cation if indigent, due required appointment of counsel to assist at hearing. granted Supreme The United States Court Scarpelli. Gagnon Scarpelli certiorari (1973), v. 411 778, Sup. 1756, U. S. 93 Ct. 36 Ed. 2d 656. L.
In time Ap between the decision of the Court peals cases, in the identify four here which we as Gagnon v. Gunsolus and that of the United States Su preme Scarpelli, Court in we decided State ex rel. Bernal (1972), 626, v. Hershman 721, Wis. 2d 196 N. W. 2d (1972), Oestrich v. State 222, 2dWis. 198 N. W. 2d 664.
In ex State rel. Bernal v. Hershman, supra, juvenile determined that a had a at a counsel proсeeding liberty to revoke supervision under after delinquent custody had been found and his transferred Department pursuant Health & Social Services provisions (ch. of the Children’s Code Wiscon- statutes).1 sin 1 Gagnon Scarpelli, supra, page 789, footnote it was juvenile charged generally stated: A “... with violation of a applicable differently already-convicted statute situated from an probationer parolee, higher degree pro and is entitled to a Therefore, any tection. language . . .” do not we withdraw Bernal, way any modify holding. or in its *10 probation State,
In Oestrich an adult supra, we held v. proba representation er was entitled counsel at sentencing tion revocation a deferred situation. arrived at on the of an We conclusion not basis independent judgment primarily policy or decision, but relationship, in the interest of because federal-state Appeals the of decision of the of for Court United States supra. Gagnon, the Circuit in v. Seventh Gunsolus Supreme decision, Since the the Gunsolus States United Scarpelli Gagnоn supra. Scarpelli, Court v. has decided duty that the held state was under a constitutional provide indigents probation counsel all all revoca Scarpelli, tion cases. court stated: requirements [hearing requirements “These of Morris sey supra] Brewer, in themselves serve as substantial against peti protection revocation, ill-considered argues supplied. tioner this counsel need never be What argument overlooks is effectiveness rights guaranteed by Morrissey may in some circum depend probаtioner on the of stances or use skills which parolee unlikely possess. Despite informal proceedings nature of the rules absence of technical procedure evidence, or or the unskilled unedu may difficulty probationer parolee cated or have well disputed presenting version of a set of where facts requires examining presentation the examining or cross- offering dissecting or the or witnesses complex documentary evidence. “By token, Appeals we think that the samе Court accepting respondent’s erred in contention that the State duty provide under constitutional counsel for in- digents in all or cases. While appeal impose simplicity, a rule such direct regard has it would disadvantages collateral costs and serious without particular or the likelihood in a need case cases, for a constructive contribution counsel. In most probationer parolee has been convicted of commit- ting charges against another crime or admitted the hаs may justifiable And while in some have a him. excuse for the violation or a revocation is cases convincing why reason appropriate mitigating not the disposition, *11 susceptible kind proof evidence of this often or is not investigation simple require ex- is so as not to either or Gagnon position supra, pages Scarpelli, v. counsel.” 786, Scarpelli rigid process not further that due held so require significant informality, as to that the interests of flexibility, always economy, be It must sacrificed. Scarpelli, suprа, page 790, was further determined in “that the decision as to the for must made need counsel be case-by-case on a in basis the exercise of sound discre- a charged authority responsibility tion the state with administering system.” for The Supreme attempt United did States Court not to forth set specific guidelines authority for the to follow in state determining provide counsel, whether or not to but did prescribe definite factors must be considered and procedure following certain that must in the be followed language: possible prudent attempt “It is neither nor to formu- precise guidelines late a and detailed set providing be followed determining in when the of counsel is neces- sary applicable process meet requirements. The due preliminary hearings facts are in and circumstances final susceptible variation, of almost infinite and a con- responsible discretion must be allowed siderable agency making may Presumptively, the decision. be provided said that counsel should be where, in cases after being tioner or right request informed of proba- counsel, the parolee makes request, timely such a based on a (i) and colorable claim that he not has committed the alleged liberty; public upon violation of the conditions which he is at (ii) that, or if even the violation is a matter of uncontested, record or is there are substantial justified mitigated
reasons which make or the violation and inappropriate, are reasons complex or develop present. counsel, otherwise difficult or In passing rеquest appointment responsible agency also consider, especially should cases, doubtful probationer whether appears to be every capable speaking effectively for himself. request or preliminary case in at a which for counsel refused, grounds final for refusal should succinctly Gagnon Scarpelli, v. stated the record.” supra, pages 790, 791. argues State, supra, Petitioner that Oestrich does v. specifically state was based whether the decision grounds. However, state federal constitutional Oestrich of the decision in direct result Gunsolus supra. many Gagnon, Furthermore, it has been stated I, times Constitution art. sec. Wisconsin relating counsel, process to due and the are *12 substantially corresponding provisions the same as in course, is, the United Constitution. “It of within States power higher apply the of this court constitutional required by standards than those that are of the states Taylor (1973), federal constitution.” State 60 2d v. Wis. Taylor 210 several W. cites cases N. higher imposed in which we have so a How- standаrd. right ever, since the of a declaration constitutional hearings probation counsel at all revocation holding upon in Oestrich the enunciated was based Gagnon by which been overruled v. Gunsolus has now language Scarpelli, supra, the of Oestrich to effect right pro- the at Henceforth, is withdrawn. counsel hearings bation and will be determined case-by-case the basis consistent with mandate of Scarpelli. arriving recognize decision,
In at that Scar we pelli right indigent represented concernеd of an to be hearings. at case, such In the counsel instant precise appear issue is to retain counsel to hearings at Scarpelli, 6, page 783, these footnote expressly not consider this issue. are unable did We any why discern reason valid retained counsel should always hearings permitted participate be whereas subject indigent
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The extent to which retained parole revocation participate in counsel hearings the result of determination must be case-by-case de- hearing agency and such on a basis upon the exercise sound terminаtion must be based par- request for counsel In event a discretion. grounds refused, ticipation by retained counsel succinctly in the record. be stated refusal should such retained counsel does further hold if We would participation hearing, should participate in the such the exercise sound discretion also based hearing agency therefore set and the reasons forth the record. case, examiner not exercise did instant determining petitioner neither
any discretion *13 parole en would be nor the bureau hеaring. As assistance of counsel at the titled to have existing previously stated, the rule of State under then required supra, Cady, he not to ex rel. Johnson v. was hearing the in this case that do so. We observe Gagnon, supra, prior v. to the decisions Gunsolus held supra. v. State, and Oestrich of the conclude record,
From our examination we rights petitioner case the of the were no in this way prejudiced of the this determination examiner. Langer, Roman, Rosso who testified Witnesses
415 petitioner, behalf of the also swоrn affidavits. submitted testimony Essentially, the contents their conformed respective their affidavits, each of which was acknowledged July Raymond 4, 1971, C. before Porter, appears lawyer present who at the be hearing violating in behalf of Cresei. Cresei admitted agreement. of the terms he The defense at- tempted to complex establish not “. . . or otherwise develop present.” difficult The issue before credibility. opinion examiner was one areWe adequately supports the record his determinatiоn. Since we have limited State ex rel. Bernal v. Hershman, supra, juvenile proceedings Stats., 48, under ch. language State, supra, withdrawn the in Oestrich it v. is necessary retroactivity not consider issue of raised by petitioner.
By Judgment affirmed. Court. — “hearing (dissenting). agen- C. J. Since the Hallows, hearing cy” majority as used is officer Department employee of the Services, of Health & Social impartial person the most to decide whether the may represented by I parolee be counsel. would construe granting parolee our Wisconsin Constitution as representation at the administrative level. An attorney on certiorari comes too late. joins
I am authorized to state that Mr. Justice Wilkie in this dissent. (dissenting). I J. would reverse. While
Heffernan, opinion pays Gagnon lip the court’s service to Scarpelli Sup. (1973), 778, 411 U. S. Ct. ignores A
L. Ed. its rationale. reasonable reading Scarpelli hearing may demonstrates that only proceed without counsel in those cases where the undisputed. historical facts of the violation are Scarpеlli emphasizes question of counsel in a approached case-by-case on a *14 referred to Scarpelli, page Instances are 790.
basis. right appear only the to is therein where there finding indigency, counsel, there a retained but when is provide the state must counsel. may should it counsel “Presumptively, said that being of his provided where, after informed be right cases parolee request probationer or makes counsel, to timely claim and colorable request, on a based such alleged violation of (i) not committed the has liberty; (ii) that, upоn or which he is at the conditions public or if the a matter of is even uncontested, violation record is justi there which reasons are substantial mitigated revocation in the violation make fied or complex appropriate, are or other reasons develop present. passing In on a difficult wise request responsible appointment counsel, for the agency consider, especially cases, in doubtful also should capable speaking probationer appears to bе whether request effectively every case which himself. preliminary refused, at a or final is for counsel grounds succinctly in for refusal should be stated Gagnon pages Scarpelli, supra,
the record.” 791. majority opinion The did not finds that the examiner right denying of retained coun exercise discretion participate. The failure to exercise discretion when sel required, Scarpelli, is, it it under Wisconsin as is McCleary (1971), law, an abuse of v. State discretion. 263, 282, 182 2d Wis. N. W. fact-finding an issue which Cresci raised went intentionally procеdure, i.e., did he violate the conditions parole, or the technical violation of his unknown beyond him and his control. When this situation was posed, the examiner to was incumbent exercise his explain on the record administrative discretion and deny decision to counsel.
Contrary Scarpelli arbitrarily rule, Cresci fact-finding procedure. in a counsel denied Right fully retroactive counsel under sixth
417 (See Wainwright (1963), 372 amendment. Gideon v. 335, Sup. 792, 799, 2d 93 2d U. S. A. L. Ct. L. Ed. R. follow.) right-of-counsel and the cases right counsel, a de- there is a constitutional Where fully application, fendant is entitled to a retroactive even though denying right here the examiner was not deny of the rule that aware he could not counsel without exercise discretion. demonstrated right affecting The to counsel is a constitutional one fact-finding process. integrity Neither court, court, any can the con- nor other “sunburst” respect The effect the constitution in stitution. Sewrpelli fully retroactive, of counsel is applies judgment to this case. The must reversed.
I am authorized to state that Mr. Chief Justice join in and Mr. Justice Wilkie this dissent. Hallows Respondent. Pfeifer, Appellant, Pfeifer, February 4, Submitted March No. 204. 1974. Decided (Also reported 419.) in 215 N. W.