Major, Senior Circuit Judge, and Cummings and Pell, Circuit Judges.
This is an appeal from an order of the district court releasing, on a writ of habeas corpus, the petitioner, then age 17, to the custody of his mother pending further disposition of delinquency proceedings in the Milwaukee County Children's Court. The petitioner had been in the custody of the respondent at the Milwaukee County Detention Home.
The factual background of the case here involved is set forth correctly and in detail in the district court's opinion. Baldwin v. Lewis, 300 F. Supp. 1220 (E.D.Wis. 1969). We can conceive no purpose being served by repeating the detailed factual situation here and note only facts bearing significantly on the decision we have reached.
The petitioner was taken into custody as an alleged delinquent child by Milwaukee detectives on April 22, 1969, without a warrant, for allegedly setting a fire in a Milwaukee high school on March 27, 1969. The record indicates that the police officers were acting upon information furnished by two high school teachers and one of petitioner's fellow classmates who was involved in the incident The petitioner appeared the next day before one James, who was a non-judicial juvenile officer, designated by the Children's Court of Milwaukee County to determine detention matters. Petitioner was ordered held in detention without bail. The petitioner appeared before a juvenile judge on April 25, 1969 and his detention without bail was continued.
A writ of habeas corpus was obtained from the Circuit Court of Milwaukee County on April 26, 1969. Hearings were held before a circuit judge in Milwaukee County on April 28 and 29, 1969. The circuit judge found that the detention hearing had been improperly conducted by the juvenile judge. The circuit judge then conducted a de novo detention hearing and concluded that the petitioner should be held in detention without bail.
On May 2, 1969, the petitioner requested the Wisconsin Supreme Court to grant him leave to commence an original action for a writ of habeas corpus. This petition was received and filed in the Wisconsin Supreme Court on May 5, 1969. The Clerk of the Supreme Court of the State of Wisconsin sent the following communication, printed on a post card, to counsel for the petitioner:
"I have received and submitted to the Court your petition for habeas corpus.
"The Court has a large volume of such matters, which are handled in addition to the normal calendar cases. I cannot, therefore, predict when the Court will announce the decision in your matter. I will notify you immediately when such an announcement is made."
This card was received by petitioner's counsel on May 6, 1969, and on the same day petitioner's counsel commenced this action in the District Court for the Eastern District of Wisconsin. On May 9, 1969, the district court ordered a response from the respondent. A return dated May 10, 1969, was filed by the respondent on May 12, 1969. A hearing was held in the district court on May 13, 1969. On May 14, 1969, the district court ordered the discharge of the petitioner from the custody of the respondent pending further disposition of his case in the Children's Court for the reason that the "petitioner is being held in custody in violation of his rights under the United States Constitution."
On May 23, 1969, the Chief Justice of the Wisconsin Supreme Court wrote a letter to the district judge, reading as follows:
"I have heard that you have issued an order to show cause why habeas corpus should not be granted releasing the above named juvenile from detention and that your court has freed him for such detention until your court has decided the matter. Is this correct? On May 5, 1969, Baldwin filed with the Wisconsin Supreme Court a request to commence an original action for the issuance of a similar writ His request is being considered."
Under date of May 28, 1969, the district judge wrote the Chief Justice of the Wisconsin Supreme Court confirming that the order had been entered discharging petitioner from custody and returning custody to the petitioner's mother pending further disposition of the matter in the Children's Court. The letter also advised that an opinion was in the process of preparation and that a copy would be forwarded when it was completed.
The opinion of the district court rendered on June 24, 1969, held that there had been probable cause for petitioner's being taken into custody and that he did not have a right to bail but discharged the petitioner from custody, holding that in order to satisfy the constitutional requirement of due process, detention hearings held pursuant to the Wisconsin statute must include a determination as to whether there was probable cause to believe (1) that an act had been committed which if committed by an adult would be a crime and (2) that the juvenile in custody has in fact committed such act. The court then was of the opinion that the detention hearings were deficient to meet the constitutional requirement.
A number of points of constitutional law are urged on this appeal. The appellee-petitioner, although not cross-appealing, urges that the district court's opinion did not go far enough, generally contending that the same constitutional guarantees should be applicable to a juvenile as would be to an adult charged with a crime which was the basis of the juvenile delinquency charge. On the other hand, the respondent strenuously contends that the order and opinion entered revolutionize juvenile procedure in the State of Wisconsin. We do not reach any of these points, interesting and pertinent though ...