(concurring in ycurt). I agree parole and probation violators are entitled to a hearing hut on constitutional grounds; and if the hearing is to be an administrative one, it should be more formal and not so limited as the majority has decided. The testimony should be given under oath, a complete written record should be made, and the appeal should not be restricted to whether the department acted arbitrarily and capriciously. The scope of review should be the same as on appeals from other administrative agencies as provided in sec. 227.20, Stats.1
I disagree with what seems to me to be the basic premise of the court’s opinion that there is no constitutional basis for requiring a judicial hearing as a procedural step before parole or probation can be withdrawn. I agree with Hahn v. Burke (7th Cir. 1970), 430 Fed. 2d 100, which I read as requiring a judicial hearing. Hahn did not order the district court to direct the H&SS Department to hold a revocation hearing but stated, “The Wisconsin court may, however, hold a *558probation revocation hearing at this time if it has jurisdiction over probationer.”
I think, too, the distinction between right and privilege in respect to due process is no longer valid (see cases cited in Hahn at p. 103), and a judicial hearing should be had. Some people would quarrel with the decisions of the United States Supreme Court decided later than the 1935 case of Escoe v. Zerbst, 295 U. S. 490, 55 Sup. Ct. 818, 79 L. Ed. 1566, and would prefer to keep privileges under the “grace” of the government rather than treat them as a right of the people in a democracy.
If parole or probation, whether a right or privilege, is granted, then procedural due process should be applied to the manner of their revocation. This problem is analogous to the one in which this court held that counsel did not need to be appointed at a preliminary hearing because the hearing was statutory and was not required by the constitution. This court has now outlived that concept, see State ex rel. Offerdahl v. State (1962), 17 Wis. 2d 334, 116 N. W. 2d 809; and Sparkman v. State (1965), 27 Wis. 2d 92, 98, 133 N. W. 2d 776.
I do not find a valid distinction in classification between Milwaukee county, in which a judicial hearing is granted for probation, and the rest of the state based on the fact Milwaukee county has a population of over one-half million people and its probation department is an arm of the court. Revocation hearings, whether of probation or parole, should be judicial and uniform throughout the state, with their primary inquiry to determine whether the defendant has in fact violated the rules and regulations governing his parole or probation.
The court’s opinion takes the view that the judicial process is terminated once a man has been found guilty and sentenced and that the administrative process has been substituted in its place. The more recent thinking is found in the commentaries to the ABA Project on Minimum Standards for Criminal Justice: Standards Relating to Probation, sec. 5.4, p. 69:
*559“The probation revocation proceeding, in other words, involves exactly the same kind of problem as is involved in the criminal trial itself — the ascertainment of historical events about which there may be some dispute and the consideration of those events against a standard of conduct to which the probationer is expected to adhere.”
Standard 5.4 on the nature of revocation proceedings, at least as applied to probation, indicates quite clearly that the hearing should be in an open court proceeding and the violation should be established by the government by a preponderance of the evidence.2
A judicial hearing is especially required in a case of mandatory release, sec. 53.11 (7) (a), Stats., because a person has served his sentence less good time and has a right to his freedom. Whatever arguments can be made by the majority for an administrative hearing rather than a judicial one for discretionary parole or probation violations and those cases which involve a change of mind on the part of the department as to a person’s fitness for parole cannot be validly applied to a mandatory release case.
While this proceeding may add a few cases to the trial court’s calendar, in the long run it will not add to judicial work of the system because, if experience is any guide, *560the work on appeals from these administrative hearings will exceed the work of the initial judicial hearings. While the legitimate avoidance of court work is to be encouraged, people should not be denied a determination of their rights in courts because courts are busy; neither time, overwork, nor costs should be the price of justice.
“227.20 Scope of review. (1) . . . The court may affirm the decision of the agency, or may reverse or modify it if the substantial rights of the appellant have been prejudiced as a result of the administrative findings, inferences, conclusions or decisions being:
“(a) Contrary to constitutional rights or privileges; or
“(b) In excess of the statutory authority or jurisdiction of the agency, or affected by other error of law; or
“(c) Made or promulgated upon unlawful procedure; or
“(d) Unsupported by substantial evidence in view of the entire record as submitted; or
“(e) Arbitrary or capricious.”
“5.4 Nature of revocation proceedings.
“(a) The court should not revoke probation without an open court proceeding attended by the following incidents:
“(i) a prior written notice of the alleged violation;
“(ii) representation by retained or appointed counsel; and
“(iii) where the violation is contested, establishment of the violation by the government by a preponderance of the evidence.
“Sentence should be imposed following a revocation according to the same procedures as are applicable to original sentencing proceedings.
“(b) The government is entitled to be represented by counsel in a contested revocation proceeding.
“(c) As in the case of all other proceedings in open court, a record of the revocation proceeding should be made and preserved in such a manner that it can be transcribed as needed.
“(d) An order revoking probation should be appealable after the offender has been resentenced.”