PUBLISHED OPINION
Case No.: 94-3378
†Petition for
review filed.
Complete
Title
of
Case:STATE OF WISCONSIN
EX REL. LEONARD L. JONES,
Petitioner-Respondent,†
v.
DIVISION ADMINISTRATOR, STATE OF
WISCONSIN,
DIVISION OF HEARINGS AND APPEALS,
Respondent-Appellant.
Submitted
on Briefs: June 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 29, 1995
Opinion
Filed: June
29, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Michael
B. Torphy, Jr.
so
indicate)
JUDGES: Gartzke,
P.J., Sundby and Vergeront, JJ.
Concurred:
Dissented: Sundby,
J.
Appellant
ATTORNEYSFor the respondent-appellant the
cause was submitted on the briefs of James E. Doyle, attorney general,
and Peter J. Cannon, assistant attorney general.
Respondent
ATTORNEYSFor the petitioner-respondent the
cause was submitted on the brief of David A. Geier of LaRowe, Gerlach
& Roy, S.C. of Madison.
COURT OF APPEALS DECISION DATED AND RELEASED June
29, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3378
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN EX REL. LEONARD L. JONES,
Petitioner-Respondent,
v.
DIVISION
ADMINISTRATOR, STATE OF WISCONSIN,
DIVISION
OF HEARINGS AND APPEALS,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: MICHAEL B. TORPHY, JR., Judge.
Reversed and cause remanded with directions.
Before
Gartzke, P.J., Sundby and Vergeront, JJ.
VERGERONT,
J. The State of Wisconsin appeals from
an order vacating the decision of the Division of Hearings and Appeals to
revoke Leonard Jones's parole. The
trial court concluded that because the parole revocation hearing did not begin
within fifty days of Jones's detention in the county jail as required by
§ 302.335(2), Stats.,[1]
his parole could not be revoked. We
hold that the failure to begin the hearing within fifty days does not deprive
the Division of Hearings and Appeals of the authority to hear the matter of
Jones's parole revocation and that Jones's right to due process was not
violated by the four-day delay in commencing the hearing. We therefore reverse the trial court and
remand with instructions that it affirm the decision revoking Jones's parole.
On
September 8, 1993, Jones was arrested for possession of drug paraphernalia and
crack cocaine. He was charged with
violating his parole and detained in the Dane County Jail until November 1,
1993, when his parole revocation hearing began. He appeared at the hearing with counsel. At the end of the hearing on November 1,
Jones's counsel stated there would not be a problem if Jones remained in custody
until the hearing was continued on November 17 because the hearing had started.
Jones
dismissed his attorney after November 1 and refused to attend on November
17. Nevertheless, the hearing took
place and the administrative law judge ordered Jones's parole revoked effective
November 30. Jones appealed to the
administrator of the Division of Hearings and Appeals, who affirmed. Jones filed a writ of certiorari in Dane
County Circuit Court, making two claims:
(1) the Division of Hearings and Appeals lost jurisdiction to hold a
parole revocation hearing because it did not hold the hearing within fifty days
of his initial detention, and (2) his due process rights were violated by the
failure to hold the hearing within a reasonable time. The trial court agreed with Jones on the first claim and vacated
the decision revoking Jones's parole.
Section
302.335(2), Stats., provides in
part that "[t]he division shall begin a final revocation hearing within 50
calendar days after the person is detained in the county jail." We reject Jones's contention that the
Division of Hearings and Appeals lost authority to hold a hearing after October
28, fifty days from the date he was initially detained. We conclude the fifty-day period for holding
a final revocation hearing is directory, not mandatory.
Statutory
time periods may be directory or mandatory.
State v. Perry, 181 Wis.2d 43, 53, 510 N.W.2d 722, 725
(Ct. App. 1993). Generally, a statute
prescribing the time within which public officials are required to perform an
act is directory, unless the statute denies the exercise of power after such
time, or the nature of the act, or statutory language, shows that the time was
intended to be a limitation. Id.
Whether
a statutory time period is directory or mandatory presents a question of
statutory construction and is reviewed independently by the appellate
court. Perry, 181 Wis.2d
at 53, 510 N.W.2d at 725. The four
factors relevant to determining whether a statutory time limit is directory or
mandatory are: the objectives sought to
be accomplished by the statute, its history, the consequences that would flow
from the alternative interpretations, and whether a penalty is imposed for its
violation. Id. at 53-54,
510 N.W.2d at 726.
Section
302.335, Stats., does not suggest
that if a final parole revocation hearing is not held within fifty days of the
parolee's initial detention in the county jail, no hearing may be held. It provides in subsec. (3) that if a hearing
is not held within that time, the sheriff, tribal chief of police or other
person in charge of the facility may release the person after notifying the
department at least twenty-four hours before the release. The object of § 302.335 is to regulate the
length of time persons are held in county jails pending parole revocation
hearings. It does not regulate the
authority of the Division of Hearings and Appeals to hold those hearings.[2]
The
consequence of Jones's construction of the statute would be that any delay
beyond fifty days in beginning the hearing would prevent a revocation of
parole. We will not impose this serious
consequence in the absence of some indication that this is intended by the
legislature. We see no such indication.
The
consequence of adopting the State's interpretation of the statute is not, as
Jones claims, a disregard of his right to due process. Due process requires that Jones have a
parole revocation hearing within a reasonable time. State ex rel. Flowers v. DHSS, 81 Wis.2d 376, 396,
260 N.W.2d 727, 738 (1978). This
requirement exists even if the time limit in the statute is directory and
prevents the indefinite detention Jones claims will result from a directory
interpretation.
We
conclude Jones's right to due process was not violated by beginning the hearing
fifty-four days after initial detention instead of within fifty days.[3] In State ex rel. Flowers, the
court held that a delay of two months in holding a parole revocation hearing
was not unreasonable and was not a violation of due process. Id. at 396, 260 N.W.2d at
738. Jones does not contend that the
statutory fifty-day period violates his due process rights. The addition of four days does not.[4]
By
the Court.—Order reversed and
cause remanded with directions.
No. 94-3378(D)
SUNDBY, J. (dissenting). I
conclude that the language of
§ 302.335, Stats.,
clearly establishes that the time limits contained therein are mandatory. Statutory time limits may be construed as
directory "if necessary to carry out the legislature's clear
intent." In Interest of R.H.,
147 Wis.2d 22, 27, 433 N.W.2d 16, 18 (Ct. App. 1988), aff'd, 150 Wis.2d
432, 441 N.W.2d 233 (1989). I conclude
from the language of the statute that the "clear intent" of the
legislature is that revocation hearings must be held within the prescribed time
limits. I therefore dissent.
The title of
§ 302.335, Stats., assists
in determining the legislature's "clear intent." See Kell v. Raemisch,
190 Wis.2d 755, 759, 528 N.W.2d 13, 15 (Ct. App. 1994). The title is: "Restrictions on detaining probationers and parolees in
county or tribal jail." The
restrictions are not on the probationer or parolee; they are imposed on three
entities and persons: (1) the
Division of Hearings and Appeals in the Department of Administration;
(2) the Department of Corrections; and (3) the sheriff or
jailor.
To
"restrict" is to "circumscribe," "delimit,"
"set or mark the boundaries," "draw the line," and
"set conditions or limits."
J.I. Rodale, The Synonym Finder 1030 (1978).
The
"restriction" as to the Department of Corrections (department) is
that if a probationer or parolee is detained in a county jail, the department
shall begin a preliminary revocation hearing within fifteen working days
thereafter. The department may extend
this deadline, for cause, by not more than five additional working days upon
written notice to the probationer or parolee and the sheriff or jailor. Section 302.335(2)(a), Stats.
A "directory" construction is not possible when the
legislature has prescribed how a time limit may be extended. The department is not subject to the
five-day restriction if the probationer or parolee has either admitted his or
her guilt or has had that question resolved against him or her through a
preliminary hearing or an adjudication of guilt by a court. Id.
There
is also a restriction on the Division of Hearings and Appeals in the Department
of Administration (division). A
preliminary revocation hearing may be held by the department but a final
revocation hearing must be conducted by the division. The purpose of requiring the final revocation hearing to be
conducted before the division is to separate the adjudicatory function from the
prosecutorial function.
The
restriction imposed on the division is that it shall begin the hearing within
fifty calendar days after the person is detained in the county jail. "The department may request the
division to extend this deadline by not more than 10 additional calendar days,
upon notice to the probationer or parolee, the sheriff [or jailor], and the
division. The division may grant the
request." Section 302.335(2)(b), Stats.
Again, the legislature has prescribed how the hearing time may be
extended.
The
final restriction is on the sheriff or jailor.
Section 302.335(3), Stats.,
provides: "If there is a failure
to begin a hearing within the time requirements under sub. (2), the sheriff ...
or other person in charge of a county facility shall notify the department at
least 24 hours before releasing a probationer or parolee under this
subsection." This provision is
meaningless if the time limit is merely directory.
Considering
these restrictions leads to the conclusion that a final revocation hearing is
mandatory except that the department may request the division to extend the
deadline by not more than ten calendar days.
A
probationer or parolee has only conditional liberty. However, that liberty cannot be interfered with unless the
parolee or probationer has violated a "condition" which entitles the
State to deprive that individual of his or her liberty. His or her liberty may not be restrained
except pursuant to a due process hearing which satisfies the requirements of
§ 302.335, Stats.
Finally,
the consequence of failure to begin a preliminary or final revocation hearing
is that the sheriff must release the probationer or parolee. Section 302.335(3), Stats. Because the
consequences of failure to comply with the time requirements under sub. (2) are
prescribed, the time restraints for preliminary and final revocation hearings
are inconsistent with a construction of § 302.335 as directory. I therefore dissent.
[1] Section 302.335, Stats., provides in part:
(1) In this
section, "division" means the division of hearings and appeals in the
department of administration.
(2) If a
probationer or parolee is detained in a county jail or other county facility,
or in a tribal jail under s. 302.445, pending disposition of probation or
parole revocation proceedings, the following conditions apply:
(a) The
department shall begin a preliminary revocation hearing within 15 working days
after the probationer or parolee is detained in the county jail, other county
facility or the tribal jail....
(b) The
division shall begin a final revocation hearing within 50 calendar days after
the person is detained in the county jail, other county facility or the tribal
jail. The department may request the
division to extend this deadline by not more than 10 additional calendar days,
upon notice to the probationer or parolee, the sheriff, the tribal chief of
police or other person in charge of the facility, and the division. The division may grant the request. This paragraph does not apply if the
probationer or parolee has waived the right to a final revocation hearing.
(3) If there
is a failure to begin a hearing within the time requirements under sub. (2),
the sheriff, the tribal chief of police or other person in charge of a county
facility shall notify the department at least 24 hours before releasing a
probationer or parolee under this subsection.
[2] The parties agree that there is no
legislative history that bears on whether the statutory time period is
mandatory or directory.
[3] Jones does not claim that the continuation of
the hearing to November 17 violated his right to due process.
[4] Jones argues we should disregard the State's
brief and appendix because it was not timely filed. Jones is mistaken. The
State was required to file its first brief within forty days of the filing of
the record with this court. Rule 809.19(1), Stats. The record was
filed on January 6, 1995. The
State's brief was due on February 15, but this court granted a one-day
extension. The brief was filed on
February 16.