*1 plan to control larger in with area is accordance development of all.” for the benefit rezoning tract of a authority found where can be No called large here tract was the 42-acre involved as prop- swpra, the zoning. Racine, “spot” Cushman v. In Heaney feet; v. erty question feet was Oshkosh, property acres. supra, was 4.5 opinion that does further this ordinance are of the
We zoning “spot” the recommendations not involve because upon village plan commission were based and board long-range planning affect considerations which community. fact whole This is evidenced rezoning included within was CAM’s zoning community, which ordinance for the entire master subject of numerous studies. was - rezoning legal was and in ac- conclude We statutory requirements cordance with the law legislative power a reasonable exercise village of Menomonee Falls. Judgment
By the affirmed. Court. — Petitioner, Gray, Warden, ex Garner, rel. State Respondent. Argued September 12, 1972. 5, 1972. October
No. State 34. Decided reported (Also 163.) in 201 2d N. W. *5 argument petitioner For the oral there were briefs and public by James H. McDermott, state defender. respondent argued by For the the cause was William Platz, attorney general, assistant with whom on A. general. attorney Robert Warren, brief W. objections to J. Petitioner raises various Wilkie, procedure papers filed, followed here and to the con- tending noncompliance provisions of the Uni- with the alleges 976.05, Petitioner form sec. Stats. noncompliance: six distinct instances Chicago police 1. The detainer was filed de- partment county party, rather than the correct the Cook attorney (or acting him). state’s his assistants honoring premature 2. There was of the Illinois temporary custody request. judicial “approval” tempo-
3. There is a lack rary custody request.
4. There is an inference that the Illinois detainer filed longer October, 1971, was no on file at time attorney’s temporary custody. Illinois state’s authorities failed to Wisconsin furnish the authori- copies with ties of Illinois the certificate of inmate status. *6 complaint de- warrant are
6. The Illinois arrest fective. considering objections to the any petitioner’s
Before of procedure necessary here, to consider followed it is first by petitioner’s chal- the two raised constitutional issues lenges provisions the Uniform Detainer of delivery of under which the Illinois authorities seek petitioner.
Issues. any provisions 1. of of the Uniform Are subject challenge? constitutional petitioner hearing may entitled to a wherein he Is legality impending delivery contest to Illinois? his challenge.
Constitutional urges due-process equal-protection Petitioner con- challenges stitutional to the Uniform Detainer Act. Specifically, right petitioner’s as to the violation of argues process, petitioner due that while the Uniform seek, by Detainer Act him to motion, allows to have disapprove this for tem- porary custody, provision no there is in the act which being right. assures him of notified of example, For provision there is no prompt which assures notice to a lodged of a detainer which against has been Indeed, petitioner, him. asserts provision there is no requires at all which anyone the warden or else to in- right petition form him of his governor.1 This deficiency, according to petitioner, violative right process. to due question petitioner There some as to whether was informed governor. The record does indicate he was informed of the detainer. petitioner equal protection, Contending a denial Uniform compares the Uniform Detainer Act to adopted Act, which has also been Extradition Criminal argues extradition under this state.2 He sought extradited be act there is by of record of his advised a court to be no advice such the extradition act. He asserts required between difference the detainer act. This arbitrary gives acts, asserts, to an he rise the two among prisoners who Wisconsin irrational classification sought under one authorities out-of-state rather than the other. provides (a) Detainer Act of the Uniform Art. IV *7 custody temporary thirty-day receipt period
a after a sought during may petition prisoner request the which sending deny request.3 governor the to the of the state requires an institution the warden of act elsewhere The confining any notify prisoner “promptly” the to him of lodged right against to him and of detainer which his is request disposition final information indictment, the complaint upon or ly, which the detainer is based.4 Crucial- Act the Uniform Detainer nowhere
the mandates right prisoner peti- a to inform to either warden tion his governor deny custody release, or to seek the his July 976.03, Stats. This Uniform Act became effective Sec. 1, 1970. 976.05, (a), pe a Sec. Art. IV Stats.: “. . . there shall he days receipt custody request] after riod of 30 the the [of appropriate request honored, authorities before the within which sending period governor disapprove request of the temporary custody availability, upon for or his either own motion upon prisoner.” or motion 976.05, (c), department, Art. Ill “The Sec. Stats.: or war having custody den, prisoner prompt other official or of the shall ly any lodged inform him of the source and contents of detainer against right him and also inform him of shall his to make disposition request indictment, a for final information or complaint on detainer is which the based.”
legal custody challenging A warden transfer. relief his only prisoner final must inform a of his consenting waiving disposition, thereby extradition and body production court for to the purposes of his in another state’s prosecution.5 act does However, of further nothing shall be construed state that therein contained any right may deprive to contest he have legality delivery.6 of his petitioner’s position It basic this act does deny protect timely custody request corpus bring writ habeas challenging impending transfer. objections King of these
Some same were raised Maryland Special Appeals State,7 wherein the Court of including condemned the Uniform for not assuring compliance by sanctions authorities various provisions. according Mary- Thus, with the act’s nothing compelling court, land there was in the act prompt upon prisoner’s request warden’s action prompt disposition provided well, III.8 art. As provision prompt requiring there nois notification lodgedagainst prison- correctional officials detainers er to the warden of an institution. Thus warden can- “promptly” not in his turn inform thereof required (c). as he is under art. Ill (same variations) instant In the case act with minor nothing mandating there in the Uniform Detainer Act *8 (as distinguished even the warden an institution of. from judge)' prisoner right a petition to inform the of to bring corpus or a writ of habeas to contest custody transfer. 5 976.05, (e), See sec. Art. Ill Stats. 6 976.05, (d), Sec. Art. IV Stats. 7 (1969), App. 652, 658, 5 Md. 249 Atl. 2d 468. 8 problem King The predominantly speedy involved the trial provisions of the Uniform Detainer Act.
583
due-process
argues
here-
violation
there
no
The state
is
currently
practice
to inform
the act
it is
as
custody
prisoner
re-
or
of a detainer
existence
a
governor.
right
petition
quest
for him and of his
suggests,
Interstate
Handbook on
Indeed, the state
signed copies
for
Control
Crime
states
prisoner.
custody
temporary
The state
must be sent to
Dodge county
court
a
in the circuit
notes decision
also
requiring
right
peti-
timely
of his
notice to
governor. Finally,
cases
the state notes
several
tion
right
suggest prisoner
“com-
no inherent
which
right
sovereignty
plain
to exclu-
strict
waives its
if one
custody
in order
him
vindication of its laws
sive
subject
him to conviction of
also
other
9
only
argues
against
Therefore,
state,
it.”
crime
delivery
rights
prisoner has
to another
to contest his
granted
ap-
him statute.
are those
state
parently
has no
feels
informed
corpus
and habeas
when the
his
merely
statute
rights.
gives
those
him
argument, however,
The state’s
several estab-
overlooks
doctrines. The first
that a statu-
lished constitutional
given
constitutionally required,
torily
right,
albeit
arbitrarily
denied.10
second
cannot be
doctrine
right necessarily implying existence of a
that of the
The one
thereof.11
without the other
as
notification
having
meaningless
attorney
an
9
254, 260,
Sup.
309,
(1922),
42
258 U.
Ponzi v. Fessenden
S.
Ct.
584 having
appellate be notified review without thereof.12 Act fails that the Uniform We conclude granted
protect adequately
prisoner’s right,
in
a
of habeas
act,
or seek writ
rights
failing
corpus by
notification of these
to mandate
petitioner.
procedural
to the
violation
This
due-process requirements
cons
federal
argues
practice
that
titutions.13 The state
because the
rights
give
prisoners
generally
there is
notice
court
held
no constitutional defect. This
construing
has
legis
the court “must ascertain the
statute
language
by the
intention
disclosed
stat
lative
as
scope,
subject
history, context,
in relation to
ute
its
object
matter, and the
intended to be remedied or accom
14
plished.”
recently
This court
also
has
stated
meaning
legislative
“[t]he
aof
act must be determined
15
says.”
what it
from
prevailing practice
respect
informing
with
prisoners of their
is not
relevant consideration
determining
validity
the constitutional
of an
In
act.
question
the instant
a serious
situation
exists
to wheth-
petitioner
er the
of his
informed
to contest
validity
custody
of his
transfer.
court
held
This
require
a statute
be construed to
which
elements
12
(1972),
370, 382,
Peterson v. State
54
2dWis.
196
2d
N. W.
837.
13 This court has held the United States and Wisconsin Con
respect
due-process
equal-
stitutions
to be similar with
protection
(1959),
318, 324,
Boden
clauses.
v. Milwaukee
8 Wis. 2d
Lathrop
156;
(1960),
230, 235,
99
2d
N. W.
v. Donohue
2dWis.
apply for a writ of habeas hearing upon corpus. the habeas argues Act has the Uniform
Petitioner arbitrary irrational classification Wis- an created sought by authori- prisoners out-of-state who are consin wholly depends upon which That classification ties. proceeded authorities. out-of-state long Supreme condemned Court has United States arbitrary statutory classifications.18 Herold,19 United recent Baxstrom v.
In the case of equal protection Supreme a denial of Court found States *11 statutory procedure person civil- could be in wherein ly prison of a sentence without committed at end necessary jury not former- trial for commitment of those ly imprisoned. The court held: Equal require protection persons “. . not all . does identically, require dealt it dis- be with but that a does purpose tinction made have some relevance to the 20 which the classification is made.” 21 Humphrey Cady in recent So also decision supreme court held: equal protection “. . . The claim be would seem to especially persuasive develops peti- if it on remand deprived jury tioner determination, of a or of other
procedural protections,
merely
arbitrary
decision
of the state to seek his commitment under one statute
22
than
rather
the other.”
This court
also
equal-pro-
addressed itself to the
holding
tection clause
the essential determination
be
“arbitrary
whether there was an
discrimination” either
18
(1942),
See Skinner v. Oklahoma
535,
Sup.
316
S.U.
62
Ct.
1110,
L. Ed. 1655.
86
19 107,
Sup.
760,
383 U. S.
86
Ct.
15 L. Ed. 2d 620.
20
page
Id. at
111.
21 (1972),
504,
Sup.
U. S.
Ct.
In oral sought usually utilized where tion custody. hand, ex- act, on the other The detainer not pressly *12 provides utilized it to be “whenever 26 imprisonment.” upon person a term of entered mutually The however, acts, are not exclusive. The two relating persons who to contains a section act extradition 23 501, 510, Murphy (1967), 2d 149 v. 34 ex rel. Voss Wis. State Sohopf (1970), 45 v. Schubert 2d ex rel. 595; Wis. State 2d N. W. 644, 2d 673. N. W. 173 24 supra, State, 16, page at 528. v. footnote Huebner 23 supra, Sehopf Schubert, 23, page v. at rel. footnote ex State 651. 26 976.05, (a), Ill art. Stats. Sec. awaiting imprisoned no basis
are trial.27 There is or relating use provided for its in either act reasons persons That in the instance of are incarcerated. who depend entirely upon arbi- determination “the seems trary custody under decision of the state” seek one statute rather than the other. ju- requiring
The Uniform Detainer hearing sought dicial wherein a there- who is explained under or bring legal appropriate challenging action, is con- stitutionally equal-protection under defective clause the United States Wisconsin Constitutions. hearing.
Petitioner’s to a hearing provided procedure A similar to that for in the Uniform Criminal Extradition Act would serve due-process equal-protection cure both the defects of the Uniform Detainer Act. provides extradition act
The that no arrested shall be delivered unless “he shall first be taken forth- judge with of a before court of record in this state.” enumerating continues, act the information which judge give sought-after party. must affording
By prisoners sought by out-of-state officials under the Uniform Detainer type this same hearing judicial rights, due-process advisement regarding defect notice of detainer and equal-protection is cured. defect is also cured longer arbitrary no existing that there is an distinction among prisoners resulting Wisconsin from out-of-state proceeding under authorities one act rather than the other. (5) (a), Sec. 976.03 Stats. 28 Humphrey Cady, supra, page footnote at Sec. 976.03 Stats. *13 hearing on required
In Huebner a v. State this court under necessity specialized treatment the issue the hearing required order in Act. That was Sex Crimes against constitutionality that act to save the as charge alleged afforded that the deviate sex was due protection. Huebner process equal In denied hearing required prescribed the court follows: sex crime and ment and mental examination and the ment with treatment or commit treatment under sec. 959.15 forded a treatment court can such ant dence, an examination shall own “. . . compel shall choosing, hearing have counsel » recommends We hearing be afforded place for his mental or attendance of hold and if he is subject such expressly on specialized treatment, appointed such when to a issue a witnesses, production waived hearing unable doctor presentence social, on a physical aberrations unless for him him the person probation the need Stats., he report of the by with provide psychiatrist him. The at is convicted of counsel, department for public that before in shall counsel, specialized physical expense defend- depart- depart- process of evi- be of his af- he a a hearing, along provided Huebner, A not as in but provided lines of in the Uniform Extradi- Criminal hearing prescribed Hueb- tion must be held. The unnecessary petitioner’s ner since bring act include a detainer writ of habeas hearing corpus. brought, When such writ is full (in county prisoner’s of record incar- court ceration) duplicitous had. would pro- would be It hearing type Huebner when the vide challenge expressly validity afforded impending detainer act transfer itself.32 30 Supra, footnote 16. pages 528, Id. at 976.05, (d), See. Art. IV Stats. *14 delivery any per- require, of
We to the therefore as sought by under the Uniform sons out-of-state officials hearing type they of Act, Detainer be afforded prescribed (10) by Crimi- of Uniform as 976.03 the sec. sought hearing prisoner Act, nal Extradition at which judge court the be delivered of be advised of record of the of the detainer and various existence rights under the detainer act. hearing petitioner, is the ordered
As instant already attorney, unnecessary petitioner is an as objec- specific rights, of and has advised launched custody point cannot At we tions the this transfer. alleged any noncompliance of of consider instances requirements of Uniform Detainer Act. with the fact-finding hearing perti- There be a on must facts challenges custody petitioner’s transfer. nent petition answer, this reason we must refer the For and county amended, to circuit court for wherein currently hearing incarcerated to hold such a and he to make findings prior to a of fact determination this legal questions in involved court amended answer.33 By the Court.—The matter to the Honor- referred Judge Henry Thir- able Circuit Gergen, Jr., G. finding Circuit, fact in connection teenth Judicial with the
allegations petitioner’s petition in an- findings amended, filed thereto as which swer shall days forty court on or after order with this before appointment public The becomes final. de- petitioner counsel fender as is continued for the proceedings temporary injunc- purpose of these and the is continued until further order tion herein of the court. (dissenting). J. Robert W. ma- court Hansen, jority adopted the Uniform examines in recently Schopf Schubert, done State ex rel. This page supra, footnote at in the thirty-nine jurisdictions,1 and finds three flaws proportions. The three fabric, each of constitutional adequate (1) imperfections Lack of are to be: asserted equal protection; (3) lack notice; (2) denial turn. process. Each is discussed due Lack notice. I. challenge ground prison- that notice to the on face, required adequately to the law on its
er is *15 major- applied petitioner. The the to not to the law as indi- “. . The record ity opinion that: . does footnotes informed of the detainer.” petitioner] he cate [the does, and he It was. itself, Detainer
Turning and Uniform to law the the authorizes, Uni- we find that the it Agreement, which re- Agreement (Form V) provides and Detainer form Signed copies must be sent to the copies. quires: “Five prisoner in cus- the official has prisoner to who the and supplied.) (Emphasis tody. .” . . provision De- specific in the Uniform
Despite this opinion the majority that Agreement, finds the tainer requiring prompt notifica- provision the . no . act has lodged against officials of detainers by correctional tion an Thus the war- institution. prisoner to the warden a ‘promptly’ inform turn the den cannot (c).” Ill required under Art. he is as thereof provision of the of the cited the mandate from Aside provides Agreement, act itself the Detainer Uniform governor the state receives under the this that, when temporary custody or avail- request for a written state, . prisoner in “. . there shall be ability of by receipt appropriate au- days the after of 30 period by Congress only agreement the of the adhered to is not The Agreement party (Interstate on Detainers Act aas United States 1397-1403) 1970, but is authorized the 84 Stat. of December USCA, 112). (4 Act sec. Consent Control Crime 2 The request honored .
thorities before ...” may disapprove governor provides that same section request temporary custody availability or upon upon motion act “. . . either motion his own prisoner.” (Emphasis supplied.) giv- only provision reasonable construction ing governor disap- right to move request requirement prove it also includes pris- of notice been filed that a governor. oner How could the challenge by motion be if not also exercised notice was Seeing statutory designed to assured? construction as save, scuttle,3 the writer would hold both notice disapproval required move exactly the act, set forth Uniform Detainer Agreement it authorizes. The writer no foundation sees pro- the claim that the Uniform Detainer Act does not vide timely for notice the prisoner, adequate. “Equal protection.” II. opinion majority Uniform holds the protection” “equal violate the assurance of the United
States Constitution. The Uniform the Detainer Act and Uniform placed side-by- Criminal Extradition Act are majority The side. that either act *17 judge who is to inform the demand made him of charged, surrender and the with which he is crime right corpus bring of habeas counsel and to writ legality Appointing counsel test the arrest. of his against public represent the defender act whom a detainer under detainer would is filed give plus oppor- information, the same challenge tunity governor’s the issuance of a warrant gives before it him the extradition act issued. The only point information a much but at later time governor after the has acted. require-
Put on the act detainer side of the scales the right challenge ment of to notice and to counsel and to governor before the has acted. Put on the extradition requirement being judicially side the scales the informed of one’s situation after is- has balancing large sued a warrant. like This is two stones against pebble. one Where small two substantive have added one procedure been information “equal been eliminated, protection” we no see argument, against at procedure. least not the new law process.” III. “Lack due majority opinion hearing procedure finds “a sim- provided
ilar to that for in the Uniform Criminal Extra- necessary dition Act” “due-process” to “cure” a as well “equal-protection” as the defect in the Uniform Detain- “hearing er Act. The procedure” reference to relates appearance governor’s before a judge, after the war- rant has been issued and placed named provided arrest, as for in the extradition act. It easy to see how the extradition appearance act court can hearing be termed a at all. What happens, and all happens, judge informs defendant of the extradition, demand for nature charge, to counsel and the legality to test by writ.
595 proceeding into an How this extradition fits —after per- governor’s after the and warrant issued has been turned over to before he is son has been arrested and fits— agent requesting this clear. How state —is where, why appearance needed postwarrant or such rights prisoner act, the earlier under the detainer has challenge even before to and counsel notice and to to gov- challenge governor acted, plus to has through not at counsel —is action writ ernor’s all clear. in the court did Even clear is how what this less analogized the basis
Huebner Case
can be
used
Huebner,
In
determi-
for what
here.
is mandated
a sex
or was not
nation of whether a defendant was
treatment,
to be
specialized
deviate in need of
held
independent proceeding
“. . . an
which determines such
rights
process
important
defendant
. . that due
.
hearing
requires a
. ...”
thereon
judge
majority
In
man-
the visit to the
which the
now
rights
cases,
in detainer act
no
at all are to be
dates
prisoner
determined. The
is to
be told
his situation
rights
challenge by
legality
to counsel and
writ
Under
Extradition
of his arrest.
the Uniform Criminal
informing
judicial
place
Act,
only after
is to take
governor’s
person’s
the issuance of
warrant
and the
Where,
under the Uniform Detainer
far
arrest.
notice,
disap-
earlier
to
to move the
prove
plus
acted,
before he
has
making
motion,
provided,
counsel in
such
are
can it be
is done in
act
said that what
extradition
cases is con-
stitutionally required in detainer act cases? The writer
requirement.
no
there is
such constitutional
thinks
process”
Unfortunately,
the term “due
come
expanding
quality,
contracting
an accordion-like
have
Huebner v. State
2dWis.
fining beyond it reasonable However, it. is stretched require detainer limit when it held to proceedings brought judge must be before a given certain information. the Uniform Where gives oppor- requires notice through legal tunity certainly coun- motion, make *19 acted, governor disapproval sel, for has even before the requirements of writer hold the the would constitutional process due have been met. only
It is to be added that the Uniform Detainer pending intended and serves to facilitate trials on persons prisons warrants indictments confined in timely in other is an efficient states. This aid processing pending op- Also, criminal it an cases. portunity persons imprisoned in one to have state charges against pending resolved them in other states. Any assumption prisoner are served interests being one state, sentence served in one before matters pending in resolved, other states are is erroneous. authorizing tempo- Uniform Detainer transfer of rary custody requesting to a purposes, state for trial permits clearing of the decks so that con- fined charges does face upon series of unresolved release.8 The Uniform Detainer Act both serves timely prosecutions timely cause of and of resolution of charges against pending prisoner. all deny writer would for writ of man- holding damus, challenges constitutionality Uniform Detainer Act to be without merit and (a) gives Contrast Art. Ill prisoner the detainer act which brought requesting he to trial in the state within days disposition, for a final with section 19 of the gives extradition act prevent which the discretion to going requesting from to trial in the state until after completed holding his sentence in the state. petition- the act challenges application (cid:127) n without substance. er in this case to be B. Leo Justice that Mr. I am authorized Hanley joins in dissent. Pires, Respondent.
State, Appellant, v. 5, September October Argued 1972. Decided No. State 57. 153.) reported 2d (Also in 201 N. W. notes available was requesting state this case. The conclusion that use of rights the Uniform Act denied the prisoner have would had under the Uniform Criminal procedure. Therefore, Extradition Act compared as to against prisoners whom the procedure extradition act followed, is, majority there the asserts, an “arbi- trary “unequal protection.” classification” and 2 976.05, (a), Sec. Art. IV Stats. long recognized It has been legislature that an act of the is to by any he sustained reasonable construction of the act. In re Appointment (1910), Revisor 141 Wis. N. W. 670. validity, the balancing, has approach, on If based constitutionality the challenge it a to finds the writer Uniform not to the Criminal Extradition Uniform Detainer Act. space to majority opinion devotes considerable The discussing to adequacy provisions the notice the pro- filing request for detainer prisoner the of a the mention It does not in the Uniform Detainer Act. vided filing given prisoner at of the no notice all is the act. request under extradition of a for detainer the rights given only after the commence There the governor’s warrant, not before.4 the issuance extradition act for Also, there is no under the governor deny request. the to move the rights person states, be- extradition act ing person upon extradited: “. . . No arrested such agent [governor’s] shall warrant be delivered over person . .” appointed . . him unless . . receive such rights accorded thereinafter listed.5 has been rights granted only governor operative after become and warrant issued. detainer acted Thus gives prisoners and two creates substantive found in the extradition act—the to notice and deny temporary to move the granted. custody it is before provides after that, It is true that the extradition act governor has acted and the warrant is issued arrested, person shall taken person such before (10), Also note: “The Uniform Stats. Criminal Sec. 976.03 provides prosecution if Extradition a criminal has been against asylum the laws instituted pending, governor, discretion, in his still either sur accused, discharged, or him until he render the hold is tried and asylum punished, 2d, state. . . .” 31 convicted Am. Jur. Extradition, pp. 935, 936, sec. 18. 976.03 Stats. Sec.