No. 85-293 

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IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 85-293 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMICHAEL HOWELL, 

Defendant and Appellant. 

No. 85-399 

IN THE MATTER OF 

MICHAEL HOWELL, 

Petitioner, 

HENRY RISLEY, Warden, Montana 

State Prison, 

Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Sanders, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant/Petitioner: 

Thomas Alan Kragh, Polson, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Attorney General, Helena 

Claude Burlingame, County Attorney, Thompson Falls, 

Montana 

Submitted on Briefs: April 4, 1986 

Decided: June 19, 1986 

JuN i 3 1986 

Filed: 
OPINION AND ORDER 

Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Michael Howell petitioned this Court for a writ of 

habeas corpus in Cause No. 85-399. Howell claims his 

imprisonment is unlawful because he was not provided a 

preliminary on-site hearing as required by 5 46-23-1103, MCA, 

and the due process clauses of the federal and state 

constitutions. 

We remanded to the District Court of the Twentieth 

Judicial District, Sanders County, for an evidentiary 

hearing. We also stayed petitioner's related appeal in Cause 

No. 85-293 until final judgment is entered on the writ of 

habeas corpus. The evidentiary hearing was held before the 

Hon. C. B. McNeil, who filed findings of fact and conclusions 

of law with this Court. 

Michael Howell was convicted of four counts of 

aggravated assault in Sanders County District Court on 

January 19, 1984. He was given a 20 year suspended sentence, 

and placed on probation in Montana. In April, 1984, his 

probation was transferred to Sandpoint, Idaho, pursuant to 

the Uniform Act for Out-of-State Parolee Supervision in 5 

46-23-1101, MCA, et seq. 

On September 19, 1984, Howell assaulted his wife. 

Howell was arrested by the Sandpoint Police Department 

pursuant to an agent's warrant issued by his Idaho probation 

officer charging him with violation of his probation. On 

September 21, 1984, Howell's Idaho probation officer sent a 
Special Report to Montana which recommended Montana take 

immediate action to revoke probation and. sentence Howell. 

On September 25, the agent's warrant was lifted and the 

Idaho deputy prosecuting attorney file a charge against 

Howell for aggravated battery. On September 26, he was 

arraigned in Idaho for aggravated battery. Meanwhile, on 

October 1, 1984, Montana authorities filed a petition to 

revoke probation. On October 1, Howell was transported to 

the state line by Idaho authorities and retaken by Montana 

authorities. Upon his arrival in Montana, Howell's Montana 

probation officer authorized a probation violation hold on 

Howell. The next day District Jud.ge Wheelis issued a bench 

warrant for Howell's arrest for probation violations. On 

October 23, he was arraigned for the probation violations. A 

hearing on the petition was held on January 22. It was 

adjourned until February 5 to secure the attendance of 

witnesses. On February 11, District Judge McNeil entered his 

findings of fact and conclusions of law. On March 12, 

Howell's probation was revoked and he was sentenced to serve 

20 years. After his probation was revoked in Montana, Idaho 

dropped the aggravated battery charges against Howell. 

Petitioner contends he was denied due process because he 

was not given a preliminary hearing in Idaho before he was 

returned to Montana as required by Morrissey v. Brewer 

(1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and 

Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 

L.Ed.2d 656. He argues 46-23-1103, MCA, requires a 

probationer be given an on-site hearing before he is returned 

to the sending state, and that the failure to do so means he 

should be reinstated on parole. The State distinguishes 
Morrissey and argues that Howell was accorded fundamental 

fairness. 

When Howell filed his petition for habeas corpus with 

this Court, we remanded the same to the District Court, 

Twentieth Judicial District, Sanders County, for hearing on 

the fact issues raised by the petitioner in his petition for 

habeas corpus relief. We requested the District Court to 

prepare and file its written findings of fact and 

recommendation for disposition of the petition. At the same 

time we denied petitioner's motion for reasonable bail and 

stayed his appeal in Cause No. 85-293 until the further order 

of this Court. 

The District Court held a hearing, and prepared findings 

of fact and a recommendation which it did return to us. It 

found facts substantially as we have reported in the 

foregoing recitation. 

The District Court recommended that we deny the petition 

for habeas corpus. It based its recommendation principally 

upon the provisions of S 46-23-1102(3), MCA, which in effect 

provides that if Montana sends a person on probation or 

parole into another state and decides to retake that person 

to Montana the decision to retake is conclusive upon and not 

reviewable within the receiving sta.te, in this case the State 

of Idaho. 

Section 46-23-1102, MCA is a part of the Uniform Act for 

Out-of-State Parolee Supervision contained in §§ 46-23-1101, 

-1106, inclusive MCA. That Act was ad-opted in this state in 

1937. Since that time there have been at least three 

decisions in the United States Supreme Court which have an 

effect on the provisions of § 46-23-1102(3), MCA. 
In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 

L.Ed.2d 484, the United States Supreme Court held that a 

parolee's liberty involves significant values within the 

protection of the due process clause of the Fourteenth 

Amendment of the United States Constitution, and that 

termination of that liberty requires an informal hearing to 

give assurance that the finding of a parole violation is 

based on verified facts to support the revocation. In 

Morrissey, the Court decided that due process required a 

reasonably prompt and informal inquiry conducted by an 

impartial hearing officer near the place of the alleged 

parole violation or arrest to determine if there is 

reasonable ground to believe the arrested parolee had 

violated a parole condition. The Supreme Court said in 

Morrissey that minimum due process required a full hearing 

before a neutral and detached hearing body for which the 

parolee had been given written notice of the claim of 

violations of parole, disclosure of the evidence against him, 

an opportunity to be heard in person and to present witnesses 

and to confront and cross-examine adverse witnesses. 

Following Morrissey, in Gagnon v. Scarpelli (1973) , 411 

u.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the Supreme Court 

repeated that due process mandates preliminary final 

revocation hearings in the case of a probationer on the same 

conditions as specified in Morrissey. 

In Moody v. Daggett (19761, 429 U.S. 78, 97 S.Ct. 274, 

50 L.Ed.2d 236, however, the Supreme Court decided that a 

parolee was not entitled to hearing on revocation when the 

parole violator warrant had not been executed but rather was 

issued at large and sent to the institution of his 

confinement as a "detainer. " 
This Court held in Owens v. Risley (Mont. 1985), 702 

P.2d 1, 42 St.Rep. 1000, that Owens was not entitled to an 

on-site hearing in another state because one of the 

provisions of his parole was that he not leave Montana. 

Since Owens had left the State of Montana without permission, 

he had violated his parole by that fact, and was not entitled 

to any further hearing. 

It is not necessary in this case to determine whether 

there is an irreconcilable conflict between United States 

Supreme Court decisions in Morrissey and Gagnon and the 

interstate compact provisions to which we have referred 

above. In any event, the purpose of the on-site preliminary 

hearing and the eventual full-blown hearing on revocation is 

to provide due process to the parolee, -- and to protect - his 

liberty interest at the time. In this case, Howell did not 

have a liberty interest at the time of the proceedings 

against him for the revocation of his parole. He was at the 

time under arrest in Idaho by reason of a charge against him 

for assault. His transfer by the Idaho authorities to the 

Montana authorities while he was still under arrest did not 

deprive him of any liberty interest since his detention by 

the Idaho authorities was at all times lawful. The United 

States Court of Appeals for the Ninth Circuit has explained 

the meaning of Morrissey in Pierre v. Washington State Board 

of Prison Terms and Paroles (9th 1983), 699 F.2d 471. In 

that case, the Court of Appeals said: 

In Morrissey, the Supreme Court did not intend to 

lay down a rigid set of procedures to be followed 

ritualistically in every situa.tion. Rather, it 

prescribed a general framework to guide future 

parole revocation proceedings in order to guarantee 

that parolees are not deprived of procedural due 

process. The themes of flexibility and informality 

run throughout Morrissey: "No interest would be 

served by formalism in this process; informality 
will not lessen the utility of this inquiry in 

reducing the risk of error." Id. at 487, 92 S.Ct. 

at 2603. "We have no thought to create an 

inflexible structure for parole revocation 

procedures." - Id. at 490, 92 S.Ct. at 2604. "We 

cannot write a code of procedure . . . . Our task 

is limited. to deciding the minimum requirements of 

due process. " - Id. at 488-489, 92 S.Ct. at 

2603-2604. No formalistic set of procedures need 

be followed as long as the minimum due process 

reauirements enunciated in Morrissev are met. 

~nd-er the facts of Morrissey, the a two-hearing 

requirement was just one way to satisfy minimum due 

process; it is not the only way in every case. 

We hold therefore that Howell was not deprived of a 

liberty interest by the failure of the authorities to provide 

for him a preliminary or on-site hearing. We find in fact he 

was given a full hearing on the revocation of his parole, 

with the opportunity to meet the charges against him which 

constituted the reasons for the revocation of his parole, to 

cross-examine adverse witnesses, and to produce witnesses of 

his own. He has not been deprived of due process. 

ACCORDINGLY, IT IS ORDERED: 

That the petition of Michael Howell for habeas corpus 

relief in this cause is hereby denied; and the order of this 

Court on September 24, 1985, staying the appeal of Howell in 

Cause No. 85-293 is hereby vacated. 

Justice 

We Concur: 

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