(concurring). The majority opinion is carefully researched, closely reasoned, and persuasively presented. However, in this writer’s opinion, it goes one step beyond the rationale and result reached by Mr. Justice Cardozo in Escoe v. Zerbst (1935), 295 U. S. 490, 55 Sup. Ct. 818, 79 L. Ed. 1566, by regarding a review hearing, not as an opportunity to challenge validity, but as a prerequisite to validity. This additional step the writer would not take.
The writer agrees with the court majority that Escoe clearly holds that there is no “. . . basis in the Constitution, apart from any statute” for requiring a pretermination hearing as a constitutionally required procedural step before the privilege (or, to quote Escoe, an “act of grace”) of probation or parole can be withdrawn. The chief justice of this court, concurring in part, would deny what Escoe grants— “. . . The power of the lawmakers to dispense with notice or a hearing as part of the power of the procedure of probation. . . .” The chief justice finds distinctions between rights and privileges to be “no longer valid.” This writer doubts that a state court has the right to thus abandon the distinction made in Escoe and exactly reverse a unanimous decision of the United States Supreme Court that recognized an area of constitutionally permissible legislative authority in dealing with a privilege. If it could, the writer doubts that it should. If every privilege is to become a right, both the concept of basic rights and the definition of privileges granted will be ill-served by the blurring of all distinction between them. It is true that in totalitarian societies the distinction often is *561dissolved — basic rights become no more than privileges, withdrawable by the state. However, to urge the reverse —that privileges granted are to become rights — is an anarchistic opposite extreme equally ill-advised. One abandons more than the dictionary when he holds either that a right is no more than a privilege or that a privilege is no less than aright.
As to the privilege of probation granted and subsequently withdrawn, Escoe makes clear that, while a pre-termination hearing is not constitutionally required, there is a need to protect against the entirely arbitrary exercise of the valid discretionary authority to revoke or withdraw. This has been termed “substantive due process,” (see 29 A. L. R. 2d 1074, 1085) or, by this court, as procedures “. . . to insure the fair administration of justice.” (State ex rel. Plutshack v. H&SS Department (1968), 37 Wis. 2d 713, 155 N. W. 2d 549, 157 N. W. 2d 567.)
While there applying a federal statute requiring an appearance before the court in federal code probation revocations, the reference in Escoe to . . an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused. . .” (Escoe v. Zerbst, supra, at page 493), clearly relates to such protection of a person granted conditional liberty after being convicted of a crime against revocation of probation or parole by arbitrary action, whim or caprice. Where the privilege of probation or parole is withdrawn by action of the administrative agency having custody of the parolee or probationer, such protection against entirely arbitrary or unwarranted revocation would, as this writer sees it, require (1) notice of reason given for action taken; (2) an administrative review hearing, on request of the parolee or probationer involved; and (3) recourse to the committing court, by appropriate writ, for judicial review of the record on the issue of arbitrariness of the administrative action taken.
*562The writer sees the right to review as an opportunity to challenge, not as a prerequisite to the valid withdrawal of the privilege involved. What is to be protected against is arbitrary action taken by whim or caprice. However a claim of arbitrariness or a request for inquiry or limited hearing can reasonably be required as the fact that triggers need for inquiry or review. No hearing being constitutionally required under Escoe, in determining requirements of “substantive fair play,” we are entitled to give weight to the need for flexibility of rehabilitative efforts and avoidance of unrequested or unwanted pre-termination hearings. The distinction between a hearing as a prerequisite to validity and a review hearing as an opportunity to challenge validity derives from the differing requirements of “ ‘procedural due process’ — ■ the right to a hearing as a procedural step, — and ‘substantive due process’ — which protects against the arbitrary exercise of a valid power. . . .” (29 A. L. R. 2d, page 1087.) It is substantive, not procedural, due process that, under Escoe, is here involved.
In cases dealing with the deportation of aliens illegally in this country, the distinction between “substantive due process” — the right to challenge validity — and “procedural due process” — the requirement of a hearing as a constitutionally mandated prerequisite to validity is maintained. In Jay v. Boyd (1955), 351 U. S. 345, 354, 76 Sup. Ct. 919, 100 L. Ed. 1242, the nation’s high court notes that “. . . such aliens have been given a right to discretionary determination on an application for suspension. . .” adding that “. . . a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace. . . .” Making the analogy to probation revocations, the court states, “. . . Like probation or suspension of criminal sentence, it ‘comes as an act of grace,’ Escoe v. Zerbst, 295 U. S. 490, 492, and ‘cannot be demanded as a right,’ Berman v. United States, 302 U. S. 211, 213. . . .” In that case the United States Supreme Court upheld the federal statute giving the attorney general the . . unfettered *563discretion” to suspend deportation as “. . . analogous to the Board of Parole’s powers to release federal prisoners on parole. . . .” The attorney general had adopted regulations delegating his authority to special inquiry officers, specifically, as the high court phrased it, “. . . giving the alien the right to apply for suspension during a deportation hearing; putting the burden on the applicant to establish the statutory requirements for eligibility for suspension . . . .” (Jay v. Boyd, supra, at page 351.) So the writer would, as does the majority, require a limited administrative hearing but as an opportunity to challenge the validity of the revocation order, not as a prerequisite to its validity or as a required preliminary procedural step to be taken before the order to revoke can be issued.
The chief justice, concurring in part, suggests that “Revocation hearings, whether of probation or parole, should be judicial. . . .” Even if Escoe is ignored or overruled, the application of procedural due process, rather than substantive due process, would not imply a requirement of a judicial hearing rather than administrative hearing in the absence of statutory provision therefor. To hold that a right to a hearing means a right to a court hearing would have sweeping implications in the whole area of administrative law. If this interpretation were accepted, many administrative hearings in many areas of public administration would become constitutionally infirm. At a time when judges, from the highest court in the land to purely local tribunals, are seeking ways to prevent a complete breakdown in the administration of criminal justice by reason of case backlogs and overloads, the adverse impact of requiring (as a prerequisite to the exercise of valid power by an administrative agency) a court or judicial hearing on all parole and probation revocations, is not to be ignored. This would not add a straw. It would dump a whole new load of hay on the back of an already overburdened camel. To argue that justice re*564quires bringing every revocation of parole or probation to a court before action can be taken is to exalt form over substance. The opportunity for judicial review of administrative action is what is constitutionally required to be assured, not judicial authorization in advance of administrative action in every case. Beyond constitutional requirements, it is for the legislature to decide between judicial validation in advance or judicial review of administrative actions on proper application. The choice between constitutionally valid public policy alternatives is for the legislature, not the courts, to make. To insist upon the preferences of a court, or single member of this court, as between judicial revocation of parole and probation or administrative action with judicial review is to judicially enact a statute, not to interpret either a statute or the constitution. The temptation to thus invade the constitutionally established area of legislative action should be resisted. Some measure of judicial restraint is the price of preserving the tripartite form of government of our democratic republic.
The chief justice sees a distinction between the rights and status of one who is paroled by action of the state parole board and one paroled by operation of the mandatory release law. The shocking result would be that a prison inmate paroled by reason of good conduct within the institution would somehow be held to have less rights and inferior status to one who did not earn the right to parole but secured it solely by the passage of time as provided for by the mandated release on parole statute. This would adversely affect the entire rehabilitatory purpose of penal institutions by lessening the motivation to deserve and secure discretionary parole at least near the time of mandatory parole under the statute. There are statutorily established two ways of securing parole — one, discretionary; the other, mandatory. The first is based on good conduct and cooperation. The second is based on the passage of time. There are two routes to parole, but, once on parole, the status and rights of the merited *565and mandatory parolees are identical. To make fish of the first and fowl of the second has no basis in law or common sense.
The writer concurs in reversal but would stop short of holding that a hearing is required in every case as a prerequisite to the valid exercise of the right to revoke probation or parole. Rather, the writer would hold that there be, on request, “. . . an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused. . . .”
The following memorandum was filed June 2, 1971.