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June 7, 1983


Appeal from an order of the Circuit Court for Waukesha County: Neal P. Nettesheim, Judge.

Petition to Review Denied.

Scott, C.j., Brown and Wedemeyer, JJ.

The opinion of the court was delivered by: Brown

In this probation revocation case, the petitioner's more compelling argument is that although the secretary of the Department of Health and Social Services may reverse a hearing examiner when credibility is at issue, such reversal may occur only after consultation with the examiner about witness demeanor or after a written synopsis on demeanor is filed by the examiner. We believe the supreme court has already answered the question in the negative. After considering this and two other issues raised, we affirm.

James Eckmann was convicted of two counts of armed robbery and one count of robbery, party to a crime. Although he was sentenced to prison, that sentence was later modified, and Eckmann was placed on probation for ten years, staying the balance of the sentence. The trial court later added a condition to the terms of probation -- that Eckmann was not to consume any alcoholic beverages. Eventually, a urine sample was given at agent request, and alcohol was found present by means of a thinlayer chromatography test. Revocation proceedings followed.

At the final hearing, the department limited its case to submission of the test results. Eckmann testified in his own behalf. He denied drinking alcohol and claimed his work as an apprentice cosmetologist brought his hands into continual contact with isopropyl alcohol, a nondrinkable form. The examiner found that because the test was not specific for ethanol, the type used in intoxicating beverages, testimony by the medical technician was insufficient.

This finding of insufficiency was made in spite of the fact that the medical technician testified a pathologist told him one cannot absorb enough isopropyl alcohol through the skin to get a positive reaction in the urine. The examiner refused to consider this because it was hearsay. The examiner also noted that Eckmann denied drinking alcohol and dismissed the revocation proceedings.

The secretary's designate reversed the hearing examiner. The designee found that the test performed was positive for alcohol and that a prima facie case had been made. The designee then held that the petitioner had not produced satisfactory evidence to overcome the showing that a violation occurred. Specifically, there was no credible medical testimony that isopropyl alcohol could lead to positive test results. The designee also discounted Eckmann's testimony, and probation was revoked.

Nothing in the record suggests that the secretary's designate discussed the case with the examiner before reversing. Eckmann claims this violates due process. He points to City of Appleton v. Department of Industry, Labor & Human Relations, 67 Wis. 2d 162, 226 N.W.2d 497 (1975), for support. In Appleton, the supreme court underscored that while a commission is empowered to reject an examiner's findings in rendering a final decision, it must first comply with constitutional due process. In cases involving the credibility of a witness as a substantial element, the reviewing authority must have the benefit of the demeanor evidence which is lost when the agency decides the controversy without participation of the hearing examiner who heard the testimony. Id. at 169, 226 N.W.2d at 501. An examiner's Conclusions regarding the personal impressions that witnesses made upon him might play a very material part in determining the weight to be given to the testimony. Braun v. Industrial Commission, 36 Wis. 2d 48, 57-58, 153 N.W.2d 81, 85 (1967).

We admit that the due process concerns addressed in Appleton and Braun might logically apply equally as well to probation revocation hearings. In proceedings under chs. 227 and 102, Stats., the commission may perform a de novo review of the evidence presented before the hearing examiner -- likewise, in the probation revocation setting. State ex rel. Foshey v. Wisconsin Department of Health & Social Services, 102 Wis. 2d 505, 516, 307 N.W.2d 315, 320 (Ct. App. 1981). So, both the commission and the department are reviewing agencies that may reverse where credibility is an issue, even though each reviewing authority is not present at the hearing and did not observe the demeanor of the witnesses.

Therefore, if the department conducting a de novo review overturns the examiner on issues affecting credibility, then the same safeguards as mandated for the commission in the Appleton line of cases could arguably apply. These safeguards would satisfy due process and would also insure the basis for judicial scrutiny, especially where the decision of the secretary or secretary's designate is contrary to the findings or recommendations of the hearing examiner. *fn1

We cannot adopt Eckmann's argument, however, because, in our opinion, the supreme court has previously ruled otherwise. In Ramaker v. State, 73 Wis. 2d 563, 570-71, 243 N.W.2d 534, 538 (1976), the court was faced with a concededly different claim than Eckmann's. Ramaker's counsel argued that when the secretary disagreed with the hearing examiner, he did not adequately set forth the evidence which he relied upon and the reasons for revoking probation. Nonetheless, the court made the all-encompassing statement that:

Cases relied upon by Mr. Ramaker are inapplicable to probation revocation proceedings, since they relate only to proceedings under ch. 227 and ch. 102, Stats. Appleton v. ILHR Department (1975), 67 Wis. 2d 162, 226 N.W.2d 497; Transamerica Ins. Co. v. ILHR Department (1972), 54 Wis. 2d 272, 195 N.W.2d 656. *fn2

Since both Appleton and Transamerica deal, at length, with the need to consult before issuing different findings than the examiner where credibility is at issue, we find the supreme court statement to be a rejection of that need in probation revocation proceedings. We add, however, that the court was faced with a different issue than the specific one claimed here. It is quite possible that the supreme court might wish to distinguish Ramaker from this case. That, however, is a function of the supreme court, not this ...

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