Summary
holding that a cause of action becomes moot when the petitioner receives the requested relief
Summary of this case from State ex Rel. Lindell v. LitscherOpinion
No. 145 (1974).
Submitted on briefs January 7, 1976. —
Decided February 3, 1976.
APPEAL from an order of the circuit court for Dodge county: HENRY G. GERGEN, JR., Circuit Judge. Appeal dismissed.
For the appellant there were briefs by Howard B. Eisenberg, state public defender, and Ruth S. Downs, assistant state public defender, both of Madison.
For the respondents there was a brief by Bronson C. La Follette, attorney general, and William L. Gansner, assistant attorney general, both of Madison.
The order appealed from dismissed a petition for a writ of certiorari to review a parole revocation order by the Department of Health Social Services.
The petitioner, Lloyd Renner (appellant here), was convicted of three counts of burglary and sentenced on February 3, 1969, to serve three concurrent terms of six years in a state penal institution. He was released on discretionary parole on May 3, 1972, and reached his mandatory release date on September 24, 1972.
Sec. 57.06, Stats.
Sec. 53.11(7), Stats.
In consideration for his release on parole, Renner was required to sign a standard probation and parole agreement which established certain conditions and standards of conduct to be adhered to while on parole. Among other things, Renner agreed to "make a sincere attempt to avoid all acts which are forbidden by law and contrary to public welfare or my own best interests" and to secure advance permission from his parole agent to "[o]wn or carry firearms or other weapon."
Renner's progress on parole was satisfactory up to the incident which prompted revocation. His parole agent had received no reports of misconduct from the police and Renner reported to him regularly. He was employed on May 10, 1973, by the Milwaukee Valve Corporation and worked steadily until August of that year. At that time he invested $4,000 in a Milwaukee tavern, the Bucks Inn, which he operated in partnership with his brother's ex-wife, Leona Renner. Renner's parole agent, Ben H. Bennett, was fully aware of his involvement in the tavern business.
Agent Bennett testified at the revocation hearing that on September 5, 1973, he discovered that Renner was being held in the Milwaukee county jail on criminal charges arising from a shooting incident in Renner's tavern. Bennett confronted Renner with the information contained in the criminal complaint. Renner's version of the incident, as related to Bennett at that time, was substantially the same as that given at his trial on the criminal charge and at the revocation hearing.
Renner testified that he attended a doubleheader baseball game at the Milwaukee County Stadium on August 31, 1973. While there he consumed three or four bottles of beer. He returned to the tavern at about 1:30 a.m., and discovered a woman with a ten or eleven-year-old child in the bar. He asked Leona Renner, who was in charge that evening, why she was permitting a minor to remain in the tavern. Mrs. Rennet told him she had asked the woman to leave but that she had refused. Renner asked the woman to leave and when she again refused he took hold of her arm and led her out of the tavern. As he was escorting the woman and child out the door, two men approached and objected to the manner in which he was treating the woman. He told them it was none of their business and turned to go back into the tavern. According to Renner, one of the men shoved him, forcing him to trip on the step, and followed him into the bar. He then turned and struck the man. His adversary picked up a bar stool and hit him on the left shoulder. Rennet wrestled the stool away and the men began to box. The man grabbed a chair and struck Renner's elbow, breaking it. Renner went behind the bar and secured a .38 caliber pistol with which he hoped to scare the man away. Renner stated the gun went off as he was attempting to unload it. The man left and Renner returned the gun to a drawer behind the bar.
Leona Renner, who witnessed the incident, substantiated Renner's version. However, Renner's adversary in the tavern fight, Lloyd Stubblefield, testified at the criminal trial that Renner was drunk and that he had pointed the gun at him and pulled the trigger several times. The gun did not fire but, according to Stubblefield, discharged as Renner was attempting to load it. Rennet was convicted on September 13, 1973, of violating sec. 941.20(1) (c), Stats., and sentenced to ninety days in the house of correction.
"941.20 Reckless use of weapons. (1) Whoever does any of the following may be fined not more than $200 or imprisoned not more than 6 months or both: . . . (c) Intentionally points a firearm at or toward another."
Following Renner's conviction, and on Bennett's recommendation, a parole violation warrant was issued by the department charging that Renner had violated the conditions of parole in that:
"Aforesaid admits to firing and possessing a .38 caliber pistol on September 1, 1973.
"Aforesaid was convicted of Reckless Use of a Weapon on September 13, 1973 in Milwaukee County Court and was sentenced to 90 days in the House of Correction."
The record indicates that a probable cause was scheduled for October 29, 1973, but it appears that no such hearing was held. The actual parole revocation hearing was held on December 11, 1973. In his "Synopsis of Testimony, Findings and Recommendation" prepared following the hearing, the hearing examiner recommended that Renner's parole be revoked. On January 10, 1974, Wilbur J. Schmidt, Secretary of the Department of Health Social Services, signed an order revoking Renner's parole.
Following his return to prison, Renner filed a petition for a writ of certiorari in the circuit court for Dodge county to review the department's action. In that petition Renner charged that the department acted arbitrarily and capriciously in revoking his parole. The department filed its return to the writ on March 13, 1974, and a hearing was held on April 11, 1974. Following that hearing the circuit court entered an order dismissing Renner's petition and affirming the department's action. Renner appeals from that order.
Renner, through his counsel, the State Public Defender, contends that the trial court erred in finding that the department's action was not arbitrary or capricious. The precise issues raised on appeal are: (1) Whether the department correctly found that the appellant's conduct constituted a violation of the conditions of parole; (2) whether the department was required to state reasons for revocation which evidenced the consideration of alternatives to a return to prison; and (3) whether the appellant, as a mandatory release parolee, was denied due process and equal protection when his good time credits were revoked without a hearing.
By letter dated January 6, 1976, the Assistant Public Defender has informed this court that Renner was again released on parole on September 12, 1975, and is scheduled to be permanently discharged on February 7, 1976. The issue now is whether the questions presented on appeal are moot. This court, as a general rule, will not consider questions which have become moot due to a change in circumstances unless the question is one of great public importance. State v. Seymour (1964), 24 Wis.2d 258, 128 N.W.2d 680. Only the issue regarding the revocation of good time credits might be said to have considerable public importance and that question has already been resolved by this court. See: Putnam v. McCauley (1975), 70 Wis.2d 256, 234 N.W.2d 75.
The other questions presented have importance only as between the parties to the appeal.
The question of mootness must turn upon a determination as to whether this court, by ruling in favor of the appellant on the issues raised, might afford him some relief which he has not already achieved by his re-release on parole. This determination should be made without reference to the merits of the appellant's contentions on appeal. A decision by this court that the department's action was arbitrary and capricious would compel Renner's release on parole. He is now on parole and has been since September 12, 1975. However, the Assistant Public Defender, in her letter, argues that the questions are not moot "[s]ince revocation is a blot on any individual's record." A decision by this court upon the issues raised will in no manner affect Renner's record of criminal convictions and sentences imposed. The relief sought by this appeal was release on parole. He has achieved that objective. The fact that his parole was revoked for a comparatively short period of time does not constitute such a "blot" upon his record so as to require judicial intervention.
The basis for the Supreme Court's holding in Morrissey v. Brewer (1972), 408 U.S. 471, 92 Sup. Ct. 2593, 33 L.Ed. 2d 484, that minimal due process requirements attach to parole revocation proceedings was that such proceedings threaten the loss of conditional freedom, a "grievous loss" contained within the concept of "liberty." Likewise, this court's determination in State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 185 N.W.2d 306, that revocation proceedings are reviewable by writ of certiorari followed directly from its conclusion, preceding Morrissey, that minimal due process rights must be afforded a parolee threatened with the loss of his conditional freedom. It is readily apparent that the detriment now sought to be remedied in this case is not of similar stature. It is not such a loss as would warrant, standing alone, the safeguard of judicial review.
In this case, consistent with department practice prior to Putnam, supra, the appellant's good time credits were automatically revoked upon revocation of his parole. Putnam requires that the department exercise its discretion in determining how much good time must be forfeited. The number of good time credits affects the computation of a prisoner's ultimate discharge date. The appellant's re-release on parole does not necessarily afford the relief required by Putnam.
More importantly, we hold Putnam is not to be applied retroactively. Renner's parole was revoked on January 10, 1974, and he was again placed on parole September 12, 1975. Putnam was decided on October 28, 1975.
By the Court. — Appeal dismissed.