State v. Goulette

222 N.W.2d 622, 65 Wis. 2d 207, 1974 Wisc. LEXIS 1254
CourtWisconsin Supreme Court
DecidedOctober 29, 1974
DocketState 138
StatusPublished
Cited by52 cases

This text of 222 N.W.2d 622 (State v. Goulette) 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.

Bluebook
State v. Goulette, 222 N.W.2d 622, 65 Wis. 2d 207, 1974 Wisc. LEXIS 1254 (Wis. 1974).

Opinions

Beilfuss, J.

Because the respondent was given a parole hearing in May of 1974, and released on parole in July, 1974, the case is moot. An order of this court either affirming or reversing the judgment appealed from would accomplish nothing insofar as the respondent is concerned. He has had the hearing he sought and he has been granted the affirmative relief he sought. An order of this court deciding the issues on the appeal could in no way affect his present status and the appeal is moot.1

[212]*212Even though we have concluded this appeal is moot we deem it advisable to comment upon some of the issues raised because of their possible effect upon subsequent cases.

The major issue raised which may be the subject of future concern is whether the Parole Board’s recommendation to refuse the granting of a parole is subject to judicial review.

In Tyler v. State Department of Public Welfare (1963), 19 Wis. 2d 166, 119 N. W. 2d 460, this court held that the refusal of a parole board to grant parole was not judicially reviewable under the Administrative Procedure Act, secs. 227.15 to 227.21, Stats. The State argues that the reasoning and holding of that case should be applied to this case and that review by certiorari should be denied. The respondent, through the State Public Defender, contends that Tyler deals only with procedures provided for in the Administrative Procedure Act and is not authority for a rule that judicial review is not available and that certiorari is available.

The State contends that the fact that a prisoner has no right to parole bears on the broader questions of whether there can be any judicial review of a parole refusal. Both parties cite State ex rel. Johnson v. Cady (1971), 50 Wis. 2d 540, 185 N. W. 2d 306, wherein this court concluded that “. . . the basic requirements of due process and fairness require that the department provide a limited hearing . . . .” to parolees prior to revocation of their parole. We also stated, however, at pages 549, 550, that:

“Once having determined that petitioners are entitled to revocation hearing, we deem it advisable to consider the right of review of the department’s action in revocation. It is well established in this state that where there are no statutory provisions of judicial review, the action of a board or commission may be reviewed by way of certiorari.
[213]*213“We, therefore hold that petitioners’ right of review of a revocation hearing is by certiorari directed to the court of conviction. ...” 2

The State argues that because there is no right to parole and because there is no taking of anything from the applicant as there is in revocation, the action of the Parole Board is not subject to review by certiorari. This court has never so restricted the availability of the writ. See Marquette Savings & Loan Asso. v. Twin Lakes (1968), 38 Wis. 2d 310, 156 N. W. 2d 425. We held there that a common-law writ of certiorari was proper to review the purely discretionary refusal of a village board to grant a liquor license. In that case there was no taking of anything from the applicant and the applicant had no right to a license since the relevant statute provided only that “[e]ach town board, village board and common council may grant retail licenses. . . .” Sec. 176.05, Stats.

The court in Tyler, supra, stated at pages 172, 173:

“The general rule is that refusal to parole is not subject to judicial review. The fact that the courts of other states decline to review administrative refusal to parole is not conclusive on the question of whether our statutes make such refusal subject to proceedings for review under sec. 227.15 ff., Stats., but their decisions demonstrate that judicial review of such refusal would be unprecedented. We consider them persuasive that ‘legal rights ... or privileges’ in sec. 227.15 should not be construed to include a prisoner’s interest in parole.
“A general statement appears in 67 C. J. S., Pardons, p. 604, sec. 20, as follows:
“ ‘A parole is a mere matter of grace, favor, or privilege, and a prisoner is not entitled thereto as a matter of right. Subject to the limitations imposed by statute, the question whether a prisoner shall be paroled is a [214]*214matter far the discretion of the paroling’ authority, whether it be a court or an officer, board, or commission. Under the statutes and decisions, the discretion of a parole board, commission, or officer as to releasing or refusing to release a prisoner on parole is absolute and not subject to review by a court where the board, commission, or officer acts according to law and without violation of, or departure from, positive statutory requirements.’ ”

However, as urged by amicus curiae, the proposition that judicial review is not available no longer remains valid, as more and more courts, especially where alleged constitutional deprivations are involved, are adopting the rationale expressed by the court in United States ex rel. Johnson v. Chairman, New York State Board of Parole (2d Cir. 1974), 925, 930, regarding review of the board’s refusal to grant parole:

“. . . Nor do we suggest that the courts should serve as ‘super-Parole Boards.’ But judicial review should be available where the Board has arrogated to itself decisions properly made only by the legislature, when the Board’s decision in a case is inconsistent with statutory directives, when improper criteria are used, or when its decision has no basis in the prisoner’s file. ...” 3

In light of the foregoing it seems clear that Tyler, supra, should not be extended to deny review by certiorari of parole refusals. Certiorari has traditionally been held to be available where statutory appeal is inadequate or nonexistent, State ex rel. Johnson v. Cady, supra; Outagamie County v. Smith (1968), 38 Wis. 2d 24, 155 N. W. 2d 639; and where there is no other adequate remedy, Wardsworth v. Sibley (1875), 38 Wis. 484; State ex rel. [215]*215Meggett v. O’Neill (1889), 104 Wis. 227, 80 N. W. 447. We are of the opinion that the refusal of the Parole Board to grant parole offers an appropriate opportunity for the issuance of the writ, subject as always to the discretion of the court. Consolidated Apparel Co. v. Common Council (1961), 14 Wis. 2d 31, 109 N. W. 2d 486; State ex rel. Goldsmith Bldg. Co. v. Bolan (1951), 259 Wis. 460, 49 N. W. 2d 409.

In State ex rel. Johnson v. Cady, supra, the court ruled that review of the parole revocation hearing was by certiorari directed to the court of conviction. Sec. 253.11 (1), Stats., as amended by ch. 217, Laws of 1973 (1973 Assembly Bill 1076), also provides that review of revocation hearings on certiorari should be by the committing court, whether circuit or county. We believe that this procedure should be adopted for parole refusals as well.

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Cite This Page — Counsel Stack

Bluebook (online)
222 N.W.2d 622, 65 Wis. 2d 207, 1974 Wisc. LEXIS 1254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-goulette-wis-1974.