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Robert E. Ware v. John Gagnon, Warden, and Bronson Lafollette
Citations: 659 F.2d 809; 1981 U.S. App. LEXIS 17652Docket: 79-2030
Court: Court of Appeals for the Seventh Circuit; September 17, 1981; Federal Appellate Court
Robert E. Ware was convicted of two counts of forgery in Wisconsin, receiving a five-year suspended sentence on the first count and a 200-day county jail sentence on the second. Following two absences from jail, his probation was revoked by the Wisconsin Department of Health and Social Services, leading him to serve the five-year sentence. Ware then filed multiple habeas corpus petitions, including in state and federal courts. The U.S. District Court dismissed his federal petition, citing a failure to exhaust state remedies. Ware's federal petition claimed the Department lacked authority to revoke his probation, asserting violations of the separation of powers doctrine, and contended he was unlawfully incarcerated without proper documentation. Although the district court dismissed his petition on grounds of unexhausted state remedies, it acknowledged that Ware had exhausted his state remedies regarding his separation-of-powers claim, which had been presented to and implicitly rejected by the Wisconsin Supreme Court. The court referenced the case of State ex rel. Johnson v. Cady, where it was established that due process requires a revocation hearing for probation and parole but allowed for an administrative rather than judicial hearing, affirming the Department's authority to manage probation without constitutional issues. The Wisconsin Supreme Court held that the administrative process was sufficient, despite dissenting opinions advocating for a more formal judicial hearing. Litigation concludes when a person, previously presumed innocent, is accused, tried, found guilty, sentenced, and has completed any appeals. Following this, the judicial adversary process is replaced by the executive branch's administrative functions related to parole and probation. In the case of Ware, the court interpreted the precedent set in Johnson as barring his constitutional challenge regarding the state's probation revocation procedures, thereby exhausting his state remedy for the separation-of-powers claim. However, Ware acknowledged that he had not exhausted state remedies for two additional claims. Although the state contended that the district court was right to dismiss the entire petition due to the unexhausted claims, the court rejected this stance. There is a division among circuit courts regarding the treatment of mixed habeas petitions containing both exhausted and unexhausted claims. While the Fifth and Ninth Circuits advocate for total dismissal of such petitions to avoid piecemeal litigation, the majority of circuits argue that district courts should consider the merits of the exhausted claims if the unexhausted claims are unrelated or trivial. The majority's rationale, which emphasizes the importance of timely relief for unlawfully detained individuals, is endorsed here. In the present case, the district court correctly dismissed all of Ware's habeas claims for lack of state remedy exhaustion, except for the separation-of-powers claim, which should have been evaluated on its merits. Nonetheless, this claim was dismissed as frivolous since the federal Constitution does not prohibit administrative revocation of probation imposed by a court, aligning with the Supreme Court's stance in Dreyer v. Illinois. The Illinois Indeterminate Sentence Act of 1899 was challenged for violating the principle of separation of powers under the Illinois Constitution. The Supreme Court clarified that a local statute granting non-judicial persons judicial powers, including the pardoning authority reserved for the Governor, does not infringe upon the due process rights guaranteed by the Fourteenth Amendment. The Court determined that the separation of powers within state government is not mandated by the United States Constitution, allowing states to define the relationship between their legislative, executive, and judicial branches. Consequently, Ware's claim regarding separation of powers was dismissed. The district court's order was affirmed, and the appeal was decided based on the briefs without oral argument, as no party requested it.