*1 others, Appellant, v. Forte, ex Ferris, State rel. Respondents. Argued July 1,

No. 76-226-CR. June 1977. Decided 1977. (Also reported 594.) in 255 2d N. W. *2 by appellant Ewers For there were James J. briefs by argument Eisenberg, Ewers, Giesen & and oral Ewers, J. all of James Madison. argued respondents

For the the cause was James attorney Petersen, general, E. assistant with on whom general. Follette, attorney Bronson La was C. brief ABEAHAMSON, L. J. Richard Forte was convicted robbery July 2, twenty- on armed 1969. He received a five-year Waupun sentence State Prison, he was supervision placed with in-state in 1973. The complete not reveal record does conditions of his September parole. 22, 1975, On Forte was convicted of carrying weapon a concealed but his not was re January 12, at that time. On voked he was ar suspect in the murder of rested as one Sam Andérson. county days jail, Dane Forte was re- After three charged May the murder. leased, with and Charles day requested and received On his release Forte permission parole authorities from the Wisconsin travel further allowed remain Illinois. He was pending acceptance supervision there of his acceptance but, That after sub- authorities. refused pend- proposed conditions, mission of modified was still ing following place. when events took request May,

At the of defense counsel for Charles county proceeded trial Dane court the Uniform Act to the Attendance of Secure Witnesses Within Without State Criminal Proceedings.1 certificate, pur- The trial court issued Sec. reads follows: *3 “(1) as in ‘Witness’ used this section includes a Definitions. testimony any person proceeding investiga- in whose desired or is by grand jury action, pro- prosecution tion a in a ceeding. any territory ‘State’ of the includes United States and subpoena the of District Columbia. ‘Summons’ includes a order requiring appearance or other notice the aof witness. testify Summoning “(2) to anotheR witness in this state in state, by any (a) judge of a court of record in state which If a commanding persons provision that has made within its laws testify in of and this state certifies under the seal attend state to prosecution pending in that there is a criminal such court such investigation grand jury court, is or that a has commenced or (cid:127) being person commence, the is a that a within state about to grand jury investigation, prosecution or witness in such material required specified presence for a number of and that his will be any presentation judge days, upon of such certificate to of a county person is, judge in such of record in which such court the hearing place for a and make an fix a time and shall order shall place appear directing a at time and certain for the the witness hearing. “(b) hearing judge the If the determines that the witness at necessary, hardship that it will not undue material and cause is compelled testify prose- to attend and in to the witness to be the jury investigation grand state, other and that cution or a prosecution pending, the laws judge of 976.02(3) requesting a (a),

suant see. county Forte county, (the a where court Cook commence, grand jury investigation is about to has commenced or through be re- any which the witness and of quired other state give ordinary travel, wit- by to the pass course of will and criminal protection of civil and the service from arrest ness process, copy summons, judge with shall issue testify directing and attached, attend the witness to certificate grand pending, prosecution is or where in the court where the commence, at investigation jury is about to commenced or has hearing specified place In such in the summons. and time facts stated prima of all the facie evidence the certificate shall therein. “(c) be taken the witness If certificate recommends said request- custody an officer into immediate and delivered to requesting state, ing in the such his attendance assure hearing, judge may, direct that such in lieu of notification of the hearing; brought him for before said witness be forthwith desirability hearing being judge such satisfied custody certificate delivery, determination the for which may, desirability, prima proof in lieu facie of such shall be issuing subpoena summons, be forth- order that said witness custody request- officer of the taken into and delivered an with ing state. “(d) provided, witness, If the as above who is summoned being properly person paid the sum some authorized or tendered ordinary 10 cents a for each mile traveled route mile prosecution and from the court where $5 day required for each he is travel and attend as a good cause to as directed in the fails without attend provided punished punishment summons, he shall be for the disobeys a summons issued from court of witness who in this state. record *4 peom testify “(3) anotheR state in summoned to Witness state, (a) person by state, If in a which its laws has this provision commanding persons made its borders to at- within testify prosecutions, grand jury investiga- in tend and commence, state, a tions commenced or about in this is material prosecution pending state, in a in a court of in this witness record investigation grand jury or in a which has commenced or about is judge may commence, a of such court a issue certificate under stating specifying of the court facts and the seal these the num- hearing if resided) a to determine summons to conduct testify in directing attend and issued Forte to should be May pending. prosecution the court where the hearing county April 27, held in Cook that Forte at which time the Illinois court determined necessary witness, attend- was a and material that his hardship him undue ance the trial would not cause protect him from and that would the laws Wisconsin days required. in- ber of be certificate witness will Said clude a recommendation that be taken into immediate the witness custody and delivered an officer of this state to assure his presented attendance in This certificate to a this state. shall be county judge of a in court of record in which witness is found. testify “(b) If the attend and in this witness summoned to he state shall tendered sum of 10 cents mile each ordinary mile traveled route and from the court where prosecution day for each re- that he is $5 quired to travel attend as witness. A witness who has appeared required in accordance with the summons not be shall longer period to remain within this state a of time than otherwise coming ordered court. If such into this state, good testify fails cause to attend and as without directed punished punish- summons, provided in the he shall be for the disobeys ment witness a summons from a who issued court of record this state. op PROCESS, (a) If Exemption “(4) ARRESTand service PROM directing in obedience to a summons person into state comes this testify in this state he shall not while this to attend him subject to arrest or the service to such summons criminal, in connection with matters which process, civil or state under the entrance into this summons. arose before through going person passes state while to an- “(b) If this attend to a summons to in obedience other returning therefrom, shall not so he while that state while subject through to arrest or the service passing state be this criminal, with matters arose process, in connection civil or to this state under summons. his entrance before op interpretation. Uniformity shall be “(5) This section so enact interpreted make uniform the law the states which as to it.”

506 (as process and criminal stated

arrest and service civil Accordingly, court). certificate of the Wisconsin directing appear at Forte to a summons was issued Forte, county May 4, 5, and 1976. trial in Dane on proper obeying summons, went to Madison time. grant the trial

At Forte refused immunity jailed contempt The and he of court. agent, day Carlson, parole Kent next Forte’s Wisconsin jail placed name on noticed Forte’s roster investigation parole him detainer on to allow time for 57.06(3), into reasons his incarceration. Sec. day following contempt lifted, Stats. order was parole but because detainer Forte remained in jail. May 10, 1976, subject parole On while still to the detainer, complaint Forte was served with a criminal charging first-degree days him with murder. Two later petitioned corpus, challenging he for writ of habeas his grounds detention on the 976.02(4) violated sec. (a), protected him from arrest or the process. of civil and Subsequently service parole proceedings alleged revocation commenced, were vio- being possession lations weapons knives and other ¡three alleged different occasions. All violations prior occurred to Forte’s return to Wisconsin under the April 27, summons issued presently 1976. Forte is an Waupun, inmate at having been revoked. His petition corpus argues for habeas that the revoca- proceedings tion are void and that he must be returned proceedings to Illinois before further may be taken against him, in fulfillment immunity granted him 976.02, Stats. dispute

There no that Forte was extradited from counterpart the Illinois of sec. Stats.,2 procedural and that requisites all for his 156-1 to ch. secs. 156-6. Ill. S.H. *6 extradition It complied as a also witness were with. undisputed proceedings that no revocation were actively under the ex- consideration when place. Opposing petition, respondents tradition took the argued that under the Out-of-State Supervision Act,3 Parole could Wisconsin have removed Sec. reads as follows: governor “The of this state is authorized and to enter directed compact any into a on behalf of this state with state of United the legally joining substantially States therein in the form as follows:

“A COMPACT. among contracting states, signatories “Entered into and the hereto, congress with the consent the of of the United States of America, granted by granting an act entitled ‘An act the consent congress any agreements of to two or more states to enter into compacts cooperative and effort mutual assistance in the prevention purposes.’ of crime and for other contracting solemnly agree: “The states “(1) competent duly That ju- shall be for the constituted party dicial and administrative of a authorities state to this con- (herein ‘sending state’) any permit person tract called to con- placed probation victed of an within such offense state and on any party or released on to reside other state to this (herein compact ‘receiving state’) probation called while on parole, if “(a) person family Such is in fact a of resident or has his residing receiving employment within the can state and obtain there; or “(b) Though receiving not a of resident state and hav- not ing family residing there, his receiving state consents to such person being sent there. “(c) granting permission, Before opportunity such be shall granted receiving investigate to the state prospec- the home and employment person. tive of such receiving state, “(d) meaning of A resident within the section, one who been has an actual this inhabitant such continuously year prior coming for more than one state sending sending and state has not resided -within state immediately preceding than 6 continuous months more the com- been of the for which he has mission offense convicted. there; proceedings court

Forte from Illinois without II- dispatched representatives have Wisconsin could receiving of visita- “(2) duties each will assume That state any- parolees supervision probationers or over tion governed sending duties will he state and the exercise those probationers prevail own its same standards that parolees. duly sending “(3) That accredited officers receiving apprehend re- there all enter times parole. purpose person probation no For take authority establishing required other than formalities will identity person All and the of the retaken. of the officer fugitives justice legal requirements extradition obtain party hereto, part expressly are waived on of states sending per- persons. The state to decision retake such *7 upon probation re- or shall be and conclusive not son receiving state; provided, however, if the that parolee within viewable probationer seeks retake or the time when state against receiving there be him within state should any having charge, suspected com- or he should criminal offense, state he shall retaken such not be mitted within receiving discharged until from the consent of state without prosecution imprisonment for such offense. duly sending “(4) That accredited officers of the state will permitted being any transport prisoners through retaken and be all parties compact, interference. such states this without may designate “(5) governor That the of each state an officer who, acting jointly contracting states, other with like officers of promulgate regula- appointed, if and when shall such rules and may necessary effectively carry be deemed to more tions as the terms of this out compact. “(6) compact immediately operative That this shall become upon by its ratification state as it other between and ratifying. so states When ratified it shall the full state or have state, force effect law such the form within of ratification ratifying to be in accordance the laws of with state. compact “(7) That this shall continue in force remain binding upon ratifying by such renounced until du- it. obligations renouncing of a ties and hereunder state shall continue probationers parolees residing as to therein at the time of finally discharged by sending withdrawal until state. compact by authority Renunciation this shall be the same

509 pick up without Wisconsin linois and return Forte to (3), recourse to extradition. 57.13 Sec. Stats. writ application

The circuit for the court denied the 15,1976, appeal on June followed. this important are It is that in we to make clear this case determining relationship not secs. 976.02 57.13, Stats., statutory problems, or the or constitutional any, may if if exist the state has choice which Cady, State ex rel. Niederer v. of two to use. statutes Cf. rel State ex (1976); 626 72 Wis.2d 240 N.W.2d Gray, Garner v. (1972). 55 Wis.2d 163 N.W.2d issue, presented This decided on the case is narrow case, Wisconsin, facts whether the State having proceeded may 976.02, Stats., under there- sec. determine that is not bound that statute.

In bar, the case at proceeded the Wisconsin trial court to have Forte this returned to attend and in a criminal action. The cer- judge tificate of circuit county, Dane 976.02(2) (b), stated that the laws of Wis- protect consin Forte from process.4 arrest After a by sending it, writing which ratified 6 months’ notice oí its compact intention to party withdraw other states thereto. “(9) section This as the cited ‘Uniform Act for Out- ” Supervision.’ of-State Parolee provides part: *8 The certificate in Forte, if “4. That said Richard as such comes into directing of Wisconsin in the State obedience to a him to summons testify trial, attend and at said the of the of laws State Wisconsin through may required and of which said witness pass by ordinary give trial, the course of travel to attend said protection process, him from the or arrest the service of civil criminal, or in connection with matters which arose before his pursuant entrance into said state to said summons. purpose being is made for “5. That this certificate the of judge County Cook, presented a of the a of court of record of is, proceed- Illinois, upon Forte of said Richard where now State

hearing Court of the Circuit before the criminal division (a), the 976.02(3) County, Cook to sec. for testify in judge to Forte issued summons May’s as trial, reiterated Wisconsin’s which summons process.5 protection of Forte arrest surance state, that, public policy, the matter of hold as a We having of Il- invoked the the laws and courts of State having linois, and the assured Forte State of Wisconsin process exemption from arrest or he was witness while Wisconsin, Wisconsin, may not, in in Forte arrives protections or limit withdraw assured laws or the court documents invoked filed. The de- tainer order to an is tantamount arrest. See sec. 57.06 (3), State, Huebner v. 33 Wis.2d ings compel Forte to at the said Richard attend prosecution in Court criminal before this State trial in said upon days set forth.” and dates hereinbefore of Wisconsin provides part: in summons presence as a witness for . . of said Richard Forte “. upon required following of said trial on the State Wisconsin is days commencing day May, (3) 4th for three on the dates: of the 1976 and of Wisconsin which laws State A.D. prosecution pending, such other state states through attending which said Richard Forte said witness required pass by ordinary trial said course give protection travel, him from arrest of civil and the service process going passing through and criminal while said directing state, in said Richard said obedience to Summons testify in said in said Forte to attend and State of Wisconsin prosecution returning therefrom, in connection criminal and while pur- which arose before his entrance into said with matters appears Summons, to said all of which from Certificate suant Judge County, the Circuit Court Dane of Wis- State assigned to trial Circuit Court criminal matter for consin County, Wisconsin, record, State court of of which a Dane part copy made a is hereto attached and hereof: and it further of said found that attendance Richard Forte as such witness upon aforesaid said trial the dates as a witness the State upon prosecution of Wisconsin said will not cause undue hardship said Forte.” Richard

511 (“The (1967) 147 646 of arrest N.W.2d central idea an taking detaining person is or action word custody subject liberty so as to the actual con- to making person trol arrest.”). and will Respondents 976.02(4), Stats., that contend sec. greater immunity not intended to create from arrest process necessary preserve than would the status quo person prior as it existed extradition aas Department, taking custody witness. The Forte into Wisconsin, doing while he was in county, Dane that it 57.13(3), was entitled to do under sec. were argument interesting Forte still in Illinois. This is an legal interpretation, contrary absolute, but unqualified language unequivocal, 976.02, Stats., of sec. Ill. S.H. ch. 156-6, secs. 156-1 to and the documents issued the Wisconsin and Illinois courts. As the Okla Appeals homa Court of Wright Criminal said in v. Okla homa, 500 P.2d (1972) 588 : delivery “As condition of the Uniform Act demands guarantee against arrest or summons while the wit- going to, coming

ness at, demanding from the state.” deciding relationship We are not of sec. 976.02 and or the merits revocation. hold, Under the case, circumstances we as matter public policy, duty the state had conform statute act, under which it chose Forte and right rely the Illinois conformance, courts have a and that this court must enforce conformance.6 6 Shaughnessy, Accardi v. (1954); United 260 347 U.S. Cf. Sangamon Valley Leahey, (1st v. 1970); States 434 F.2d 7 Cir. Corp. States, (D.C. 1959) ; Television v. United 269 221 F.2d Cir. by Agencies Regulations, Their Own Note, Violations 87 Harv. (1974). agency government scrupu “An L. Rev. must lously rules, regulations, procedures observe es- which it has *10 cause remanded reversed and

By Court. —Order a grant petition writ to Forte’s for directions with prisoner, to be released paroled corpus; Forte, a habeas legal custody Department of Health of the to paroled prisoner. supervision a for as Social Services respect- HANSEN, (dissenting). I J. T. CONNOR majority fully and would from the decision dissent court. of the trial affirm the order undisputed. The are Forte was returned to Wis- facts response appear to as witness in consin Illinois to sec. to certificate and summons issued Stats., Aet 976.02, the Extradition Wit- Uniform for proceedings nesses Actions. The the re- in Criminal instigated by turn of Forte were defendant in a case appears in the then court. It also Wisconsin appear at the Forte time returned as a Wisconsin parole prior he was conviction in Wis- knowledge that he consin and with the parole consent of the Wisconsin authorities.

During the course of trial Forte was testify, trial contempt court found him in of court incarcerated. While incarcerated,- he was thus making agent parole jail a routine check of the roster name, observed Forte’s instituted revocation proceedings upon prior based his conduct his return appear Wisconsin as His witness. was re- he was a penal voked and returned to institution. facts, majority hold would that a writ of On these granted corpus because should under habeas Stats., 976.02, when Forte returned Wisconsin so, do it fails to its action When cannot stand and tablished. Heffner, v. strike United States courts will down.” 420 F.2d 1969). (4th Cir. Such deviations “cannot 811 be reconciled principle government laws, ours is a the fundamental with Lenfest, (2d 398 1968). Hammond v. F.2d not men.” Cir. in a witness “protection he case was afforded from arrest and the process.” civil service of and criminal majority sees the narrow issue to be whether Wisconsin, having proceeded

may thereafter determine it not bound the statute. They then continue to “public hold as a policy” matter of that Wisconsin protections not withdraw or limit the assured the laws involved or the court documents perceive I filed. do not case, this to be the issue nor do I consider it to appropriate an case for the ex- judicial ercise of a public policy determination. *11 my opinion,

In is whether issue applicable to or can be construed so as to include parole proceedings. revocation was not re- Forte parole, turned to he Wisconsin because but to appear prompted as witness in a criminal case. One is inquire Forte, happen what if would the conduct of while Wisconsin under as a summons judgment parole pro- such that authorities, ceedings should be instituted to parole? revoke his effect, respectfully majority has,

I that the submit judicial legislative decision amended enactment. say proceeding The statute must now read “give requires the state to protection witness arrest and the service of process pro civil and criminal revocation ceedings.” provisions apply of sec. 976.02 do not proceedings revocation and the order of the trial court should be affirmed.

I am authorized to Mr. Justice HANLEY join Mr. Justice ROBERT W. HANSEN in this dissenting opinion.