Petitioner James C. Tyler is presently serving a life sentence in the Wisconsin state prison, having been convicted in 1946 of murder in the first degree. Under sec. 57.06 (1) (a), Stats., Tyler became eligible for parole in 1957, having served twenty years, less deduction earned for good conduct as provided in sec. 53.11.

Tyler filed a petition with the circuit court for Dane county, alleging in substance that his applications for parole had been denied by the parole board within the Department of Public Welfare; that the denials were unsupported by substantial evidence were arbitrary, capricious, arrived at with prejudice, and that he was denied equal protection under the law in that others no more deserving had received favorable consideration. He asked the court to reverse the denial on the merits, or order that a new board hear his application.

The attorney general moved for dismissal for lack of jurisdiction in several respects. By affidavit, the following facts were presented:

A group of employees within the the department is designated as the parole board to advise the director of the department in the performance of his duty to administer parole matters. Petitioner's application has been considered by the board in 1957, 1958, 1959, and 1960. It was deferred for one year on each occasion except that no action was taken in 1959. In the absence of a favorable recommendation from the board, the director took no action.

In August, 1960, petitioner's attorney wrote the director that petitioner had not had fair and impartial hearings and requested a rehearing before a new board. On September 1st, the director replied that he could detect no personal feelings on the part of any of the board members and could find no fault with their thinking. He declined to assign different employees to the parole board to consider the case.

Much confidential material is in the file which should not be disclosed unless it be determined that the court has jurisdiction to review the matter.

The circuit court concluded that petitioner is not a person aggrieved by an administrative decision under sec. 227.16 (1), Stats., and that the court had no jurisdiction of the subject matter. An order dismissing the petition was entered December 15, 1961, and petitioner appealed.

FAIRCHILD, J.

1. Timeliness of proceedings for review. The attorney general points out that there has been no formal refusal to parole petitioner, within thirty days before service of his petition for review or at any other time. In view of our conclusion that refusal to parole is not reviewable under secs. 227.15 to 227.21, Stats., inclusive, it is unnecessary to determine whether the present proceedings would be timely.

2. Do secs. 227.15 to 227.21, Stats., inclusive, authorize proceedings to review a refusal to parole? Sec. 227.15, Stats., provides in pertinent part:

"Administrative decisions, which directly affect the legal rights, duties, or privileges of any person, whether affirmative or negative in form, . . . shall be subject to judicial review as provided in this chapter."

Decisions of the Department of Public Welfare are not excepted.

Thus the basic question is whether a prisoner's interest in being paroled is a legal right or privilege within the meaning of sec. 227.15, Stats. If not such legal right or privilege, an administrative decision not to parole is not reviewable under sec. 227.15 ff.

Statutory and administrative provisions for parole. Sec. 57.06 (1) (a), Stats., provides:

"The department [of public welfare] may parole an inmate of the Wisconsin state prison. . . when he has served twenty years of a life term, less the deduction earned for good conduct as provided in sec. 53.11 . . . ."

The statutes contain no provisions fixing standards upon fulfilment of which an inmate is entitled to be paroled, although there are two conditions, in addition to service of a specified portion of the sentence, which must be met before the department is authorized to parole.

There are no statutory provisions governing the application for parole nor requiring a hearing thereon. The statutes do not provide for a parole board. The powers of the department are vested in the director, to be exercised under rules which he establishes with the approval of the State Board of Public Welfare.

The parole board is governed by an administrative order of the director. The parole board consists of the director of the division of corrections and three full-time civil-service members. The board is required to conduct hearings on applications for parole, and to follow a manual entitled, "Parole Board Procedures and Practices." The order states that the director of the department is the final authority and that the board is to make recommendation to him in an advisory capacity. We take judicial notice of both order and manual.

Although the administrative order and the manual refer to a hearing of an application, it is clear that this does not have the attributes of a hearing required for judicial or quasi-judicial determinations of rights. An applicant is to appear personally. Attorneys and others who desire to support the application are not permitted to appear at the hearing, although they may write to or see the board at its offices in Madison. It is clear that much of the information before the board is not available to the applicant.

It is also clear that the standards which the board is to follow require the balancing of many considerations and necessarily involve highly discretionary evaluations of the applicant's character and susceptibilities upon the basis of personal observation as well as information contained in the file. Thus in the introduction to the manual it is said:

"The long-range interest of society as well as the individual demand a parole process which results in release at that moment when the institutionalization has accomplished its constructive purpose and before progress made is lost to the many negatives associated with prolonged confinement.

"This means that at times persons are tried on parole when it is recognized there is some risk of violation of the condition of parole, but only when that risk, in the judgement [sic] of those trained and experienced in the field of corrections does not involve a threat to society and is less than it would be if confinement continued indefinitely.

"In all decisions with respect to parole the best interests of the public set the limits within which the interests of the individual inmate and his family are considered."

A portion of the manual is entitled, "Philosophy of and Specifications for Parole Determination." Relevant portions are:

"3. Basic Aspects of Parole

"Determination of the eligibility for parole of an offender must be made in relation to five fundamental viewpoints:

"Evaluation of potential danger to society (particularly whether the personal safety of any member of society might be placed in jeopardy)."

It is also clear that parole grants only a limited freedom. Sec. 57.06 (3), Stats., provides in part:

"Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department; and all prisoners under its custody may be returned to prison at any time, on the order of the department, . . . but any officer may, without order or warrant, take the prisoner into custody whenever it appears necessary in order to prevent escape or enforce discipline or for violation of parole."

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 matter for 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."

Statements in accord are found in Hines v. State Board of Parole (1944), 293 N.Y. 254, 257, 56 N.E.2d 572, 573, 574; Commonwealth ex rel. Biglow v. Ashe (1944), 348 Pa. 409, 410, 35 A.2d 340, 341; State v. Kalkbrenner (Minn. 1962), 116 N.W.2d 560, 562; Bozell v. United States (4th Cir. 1952), 199 F.2d 449, certiorari denied, 345 U.S. 977, 73 Sup.Ct. 1126, 97 L.Ed. 1391, rehearing denied, 346 U.S. 843, 74 Sup.Ct. 18, 98 L.Ed. 363; Application of Clover (1955), 34 N.J. Super. 181, 187, 111 A.2d 910, 913; Doyle v. Hampton (1960), 207 Tenn. 399, 403, 340 S.W.2d 891, 893; and Willard v. Ferguson (Ky. 1962), 358 S.W.2d 516.

The legislature has not fixed standards upon fulfilment of which a prisoner is entitled to parole. Had the legislature spoken in terms of a prisoner's being entitled to parole under certain circumstances, such terms would be persuasive that it intended to confer a right or privilege upon a prisoner who had met the standards, and an administrative determination that he had failed to meet such standards might well be reviewable under sec. 227.15 ff., Stats. It is clear, however, that the legislature has left the matter wholly within the discretion of the director.

Many of the decisions cited from other states stress the breadth of administrative discretion in parole matters as a reason why the courts will not review its exercise.

Our law formerly required approval of parole by the governor as well as the board of control. In a mandamus action where the board had granted parole, but the governor had declined approval, the circuit court quashed the writ. This court affirmed, saying ". . . the approval by the governor to orders of parole is a discretionary act, rather than a purely ministerial act of positive and absolute duty." The legislature has not provided for a; hearing or other procedural step to safeguard the interests of an applicant for parole. If the legislature specified procedural requirements even in the exercise of a highly discretionary power, judicial review might be appropriate at least to ensure compliance with the prescribed procedure. Such requirements are absent with respect to parole.

Inherent difficulty of meaningful judicial review of parole. A proceeding for review under sec. 227.15 ff., Stats., must be confined to the record, except that testimony may be taken with respect to alleged irregularities in procedure. No record of proceedings is required or made in parole matters. The elements to be considered are highly complex, and great weight must undoubtedly be given to the personal observation and evaluation of the applicant by the members of the board. In view of the nature of the matter it would probably be impossible for a court to declare that the refusal to parole was either "unsupported by substantial evidence in view of the entire record as submitted; or . . . arbitrary and capricious" while at the same time giving due weight to "the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it."

The gist of petitioner's claim illustrates the virtual impossibility of a meaningful judicial review of refusal of parole under sec. 227.15 ff., Stats. He alleges that he "has been arbitrarily and capriciously denied equal parole consideration given other `lifers' who have served less time and whose rehabilitative efforts do not surpass petitioner's own; that numerous `lifers' have been paroled whose rehabilitative efforts are questionable and whose criminal records far exceed petitioner's own." He claims that he has been denied equal protection under the law. No sound determination could be made concerning those allegations without a detailed knowledge of many cases and the factors which had motivated the parole board and director of the department to exercise their power in the manner they did in each.

The foregoing considerations lead us to the conclusion that a prisoner's interest in parole is not a legal right or privilege and that the department's refusal to parole is not a decision reviewable under sec. 227.15 ff., Stats.

By the Court. — Order affirmed.