State Ex Rel. Bernal v. Hershman
This text of 196 N.W.2d 721 (State Ex Rel. Bernal v. Hershman) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The facts are that on December 10, 1968, Bernal, when he was thirteen years of age, was found to be a delinquent child by the juvenile court of Monroe county and his legal custody was transferred to the state department of health & social services pursuant to sec. 48.34 (1) (d) 4, Stats.1 The department pursuant to sec. 48.51 (2),2 after Bernal was in custody for some time, granted him his “liberty under supervision” and placed him in his mother’s home. This was on June 24, 1971, when he was sixteen years of age and he signed the usual agreement form of release. About October 24, 1971, Bernal left his mother’s home and violated the conditions of his release. His mother did not know where he was and there was some evidence he was living with a girlfriend. He was apprehended on January 5, 1972, by the Milwaukee police and was taken to the Milwaukee [629]*629police station for questioning about a burglary. The following day he was placed in the Milwaukee county children’s court center and on January 11, 1972, he was transferred to the reception center at Wales. Detailed reports of Bernal’s failure to comply with the regulations of the department were made by an officer of the department, which were reviewed and approved by several supervisors. A hearing was scheduled before the review board to determine whether his liberty under supervision should be revoked and if the revocation was approved, in what facility Bernal would be placed.
Bernal claimed he had certain constitutional rights to procedural safeguards at such hearing and demanded: (1) Release pending the hearing, (2) counsel at the hearing, (3) a list of the alleged violations, (4) the right' to have evidence taken at the hearing, (5) the right to cross-examine witnesses, (6) the right to produce witnesses, and (7) other rights. These demands were denied. Bernal was given an informal hearing and an opportunity to explain the alleged violations. His explanation was not accepted by the review board, which revoked his “liberty under supervision” and placed him in the Wisconsin School for Boys where he is now incarcerated. Thereafter he filed his petition in.this court for a writ of habeas corpus.
The referee, after hearing the evidence, took the view the issues presented were substantially the same as existed in State ex rel. Johnson v. Cady (1971), 50 Wis. 2d 540, 185 N. W. 2d 306, in which we held an adult convicted of a crime and on parole was entitled to a fair and meaningful administrative hearing at which he had a right to be heard on the alleged parole violations with a record made which would enable him to have an adequate judicial review by certiorari to determine whether the department acted capriciously or arbitrarily in revoking or sustaining the revocation of parole. The referee [630]*630found Bernal had such a hearing on January 18, 1972, before the review board and the action of the review board in revoking Bernal’s release under supervision was not arbitrary or capricious.
We agree with the referee that for constitutional purposes “liberty under supervision” as used in sec. 48.51 (2), Stats., of the Children’s Code is synonymous with “parole” as used in the criminal law. Thus the only question raised is what are the rights of a delinquent juvenile whose legal custody has been transferred to the department under sec. 48.34 (1) (d) 4, in respect to the proceeding revoking his liberty under supervision or “after care” as the professionals call it, for violation of conditions? We apply the Johnson Case to this question, excepting to hold a juvenile is entitled to counsel at the administrative revocation hearing. Since our decision in Johnson, the United States Court of Appeals for the Seventh Circuit decided in Gunsolus v. Gagnon (1971), 454 Fed. 2d 416, that retained counsel must be allowed to participate in the probation revocation hearing, and if the probationer is indigent, due process requires the appointment of counsel to assist at the revocation hearing. We are informed the department of health & social services follows the mandate of the Seventh Circuit in respect to revocation of adult probations. Since we see no essential constitutional difference between a parole of an adult and “liberty under supervision” of a juvenile, we believe the procedure should be uniform as far as practical, and we hold that as a matter of constitutional right a juvenile is entitled to retain counsel; and if he is an indigent, he is entitled to have the juvenile court in the county of his commitment appoint counsel upon his request to represent him at the revocation of his release to liberty under supervision. It may be that in some cases the state public defender will be appointed by this court to represent indigent juveniles. The hearing can be held wherever it is most convenient to the depart[631]*631ment. We understand there are 61 offices in the state where such hearings could be held.
A juvenile is entitled prior to hearing to be advised of his rights and to a timely written statement and notice of the reasons his parole revocation was recommended. We understand there exists an informal present practice for the department now to bring the juvenile before a juvenile court where he disputes the fact he has violated the conditions of his “after care;” we think an administrative hearing would be logical in the interest of uniformity. At such a hearing, he also has a right to an effective opportunity to defend by presenting witnesses, by cross-examining any witnesses produced, and by presenting his arguments and evidence orally. The department may use written records and case histories, but if their accuracy is contested, they should be proved. [A transcript of the hearing should be made and kept for at least a reasonable period of time.]
The referee’s report points out the inadequacies in the hearing afforded Bernal but concludes none of his con[632]*632stitutional rights were violated; we disagree. The report points out no attempt was made to prove any arbitrariness or capriciousness in the board’s action. But this may be because Bernal’s petition for habeas corpus strikes at the denial of constitutional rights and this court had not yet applied the Johnson Case to juvenile cases.
This court prior to the reference heard the oral arguments of the parties and is now satisfied the petition must be granted.
By the Court.
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Cite This Page — Counsel Stack
196 N.W.2d 721, 54 Wis. 2d 626, 1972 Wisc. LEXIS 1116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-bernal-v-hershman-wis-1972.