APPEAL from orders of the circuit court for Milwaukee
County, William Haese, Judge and Michael Sullivan, Judge. Reversed.
¶1 ANN WALSH BRADLEY, J. These cases are before the court on certification from the court
of appeals. The petitioners, Micah E. Glenn and Peter D.
Griffin, assert that they were denied effective assistance of counsel when
their attorneys failed to timely file a petition for writ of certiorari seeking
judicial review of an administrative appeal.
¶2 In
its certification, the court of appeals states the issue as follows:
Whether
a [parolee] has a right to the effective assistance of counsel from a [parole]
revocation decision when counsel promised to file a certiorari petition.
¶3 While
parolees have a right to counsel at the parole revocation hearing, we conclude
that there is no administrative or statutory right to counsel to timely file
for certiorari in the circuit court. However, we determine that the petitioners
here are entitled to relief on equitable grounds because they timely requested
counsel to file for certiorari review, counsel promised to do so, and as a
result of counsel's failure to timely file, they were denied certiorari
review. Accordingly, we reverse the
orders of the circuit courts dismissing the petitions for writ of habeas
corpus, and remand with instructions to allow reinstatement of the petitioners'
right to file for certiorari review.
I
¶4 Glenn
and Griffin were represented by counsel at their respective parole revocation
hearings. Following an adverse decision
in each case, counsel timely filed an administrative appeal. The Division of Hearings and Appeals
rejected both appeals. The petitioners
allege that their counsel promised to file for certiorari review
in the circuit court but failed to do so.
¶5 In
Glenn's case, counsel failed to file the petition for writ of certiorari
altogether. In Griffin's case, counsel
filed the petition, but it was dismissed as being outside the 45-day time limit
established by Wis. Stat. § 893.735(2) (2001-02). Both petitioners subsequently sought habeas
corpus relief in the circuit court, alleging ineffective assistance of counsel
for failure to timely file their petitions for certiorari review. The circuit courts denied their petitions
for writ of habeas corpus.
¶6 Both
petitioners appealed, and the court of appeals consolidated the cases. It then certified the consolidated appeals
to this court. The specific facts in
each case are set forth below.
A. State ex rel. Glenn v.
Litscher
¶7 Glenn
was convicted of second-degree intentional homicide on October 17, 1995, and
sentenced to seven years in prison. He
was paroled from that sentence on December 15, 1997.
¶8 On
February 14, 2000, Glenn was involved in an altercation and subsequently
charged with battery and criminal damage to property. His parole agent initiated revocation proceedings and the
administrative law judge revoked his parole on June 5, 2000. On administrative appeal, Glenn claimed that
an additional allegation, that he threatened to kill his girlfriend, was
wrongly used as a ground for revocation because he did not receive notice of
the allegation before the hearing. The
assistant administrator of the Division of Hearings and Appeals disagreed with
Glenn, and affirmed his revocation on July 3, 2000.
¶9 The
decision upholding Glenn's revocation informed him that judicial review may be
obtained by filing a petition for a writ of certiorari within 45 days of the
decision to be reviewed. Around July 1,
2000, Glenn initially requested that his attorney file a petition for a writ of
certiorari.
¶10 On
July 6, 2000, Glenn met with his attorney and again asked him to file for
certiorari review. Glenn's attorney
requested a letter of facts and issues together with information regarding the
additional allegation that Glenn had threatened to kill his girlfriend. Glenn sent that letter on July 20,
2000. On July 27, 2000, Glenn's attorney
assured him that he would file for certiorari review contesting the failure to
give notice of the additional allegation of threatening to kill his girlfriend
as grounds for revocation. Glenn's
petition for writ of certiorari was due on August 17, 2000. His attorney never filed it.
¶11 On
December 26, 2001, Glenn submitted a pro se petition for writ of habeas corpus
to this court. He alleged that his
attorney provided negligent and incompetent representation by failing to file a
petition for certiorari review of the parole revocation decision despite promising
to do so. This court referred the
petition to the Milwaukee County circuit court on February 19, 2002. Glenn filed a motion with the circuit court
for a Machner
hearing on his petition for writ of habeas corpus.
¶12 The
assistant district attorney filed a motion to dismiss Glenn's petition, and the
circuit court granted it. The court
determined that Glenn was not entitled to relief based upon ineffective
assistance of counsel because no constitutional or statutory right to counsel
exists for certiorari review of revocation decisions. It further concluded that Glenn failed to demonstrate that his
attorney's alleged deficiencies unduly prejudiced his case. Glenn now appeals.
B. State ex rel. Griffin v.
Smith
¶13 The
other petitioner, Peter D. Griffin, was convicted for possession with intent to
deliver cocaine base and possession with intent to deliver cocaine on December
10, 1991. He was paroled on October 14,
1997.
¶14 In
August 2000, Griffin's parole agent found three bags of cocaine and a pager in
Griffin's car. The terms of Griffin's
parole prohibited possession of these items.
At the revocation hearing on November 1, 2000, the administrative law
judge revoked Griffin's parole. Griffin
appealed and the administrator of the Division of Hearings and Appeals affirmed
the revocation. That decision contained
a notice that judicial review may be obtained by filing a petition for writ of
certiorari within 45 days of the date of the decision to be reviewed.
¶15 Griffin's
counsel filed a petition for writ of certiorari but missed the January 15,
2001, deadline by ten days. The
attorney stated that his legal assistant had suddenly become ill, causing him
to miss the deadline. He then filed a
motion for extension of the 45-day filing deadline, but it was denied because
the court received that motion outside the 45-day limit.
¶16 On
May 19, 2001, Griffin filed a petition for writ of habeas corpus, alleging he
had been deprived of effective assistance of counsel during the appeal of his
parole revocation decision. Griffin
argued that his attorney failed to timely file for certiorari review despite
promising to do so.
¶17 The
circuit court dismissed Griffin's petition.
It concluded that parolees do not have a constitutional or common law
right to counsel for certiorari review of an administrative appeal. Griffin filed a motion to reconsider the
order dismissing his petition. The
judge dismissed that motion and Griffin now appeals.
II
¶18 Resolution of the issue set forth in the certification by the court
of appeals requires us to interpret portions of the administrative code, along
with a statute. The interpretation of
an administrative rule or statute presents a question of law subject to
independent appellate review. State
ex rel. L'Minggio v. Gamble, 2003 WI 82, ¶11, 263 Wis. 2d 55, 667
N.W.2d 1; State v. Byers, 2003 WI 86, ¶12, 263 Wis. 2d 113, 665 N.W.2d
729.
¶19 When interpreting an administrative regulation, we generally use
the same rule of interpretation as applicable to statutes. State v. Busch, 217
Wis. 2d 429, 441, 576 N.W.2d 905 (1998). Our goal in statutory or administrative rule
interpretation is to discern the intent of the legislature or the rule maker. See State ex rel. Staples v. Young,
142 Wis. 2d 348, 353, 418 N.W.2d 333 (Ct. App. 1987). Our duty to fulfill this intent requires
that we uphold the separation of powers by not substituting judicial policy
views for the views of the legislature or rule making authority. State ex rel. Cramer v. Schwarz, 2000
WI 86, ¶18, 236 Wis. 2d 473, 613 N.W.2d 591.
III
¶20 We begin with the question certified by the court of appeals:
Whether
a [parolee] has a right to the effective assistance of counsel from a [parole]
revocation decision when counsel has promised to file a certiorari petition.
¶21 The habeas petitions here are predicated on the existence of a
right to effective representation by counsel on certiorari review of an adverse
administrative appeal. In addressing
the certified question, we note that this court has generally held that where a
right to counsel exists, counsel must be effective. See State ex rel. Schmelzer v. Murphy, 201 Wis. 2d
246, 253, 548 N.W.2d 45 (1996). Thus,
the relevant inquiry becomes whether there is a right to counsel to timely file
for certiorari review of a parole revocation administrative decision.
¶22 In this case, the petitioners do not contend that there is a
constitutional right to counsel to file their petitions for certiorari
review. We agree. The Supreme Court has not extended a per se
Sixth Amendment right to counsel at revocation hearings or certiorari review of
revocation decisions in part because probationers and parolees have a more
limited due process right than those who have not yet been convicted of a
crime. See Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973).
("Probation revocation, like parole revocation, is not a stage of a
criminal prosecution . . . .") A parole revocation is the product of an
administrative proceeding and the mechanism for challenging the revocation is a
writ of certiorari asking the court to review the administrative decision. See Cramer, 236 Wis. 2d 473,
¶28.
¶23 Instead, the petitioners rely upon administrative and statutory
authority to advance their position. In
their briefs to this court, they argue, "the Wisconsin Administrative Code
plainly grants defendants a statutory right to counsel to pursue certiorari
review of probation or parole revocation decisions." At oral argument, they further asserted that
Wis. Stat. § 977.05(6)(h) provides a statutory basis for the right to
counsel throughout the revocation proceedings, including certiorari review in
the circuit court. We examine each of
these arguments.
¶24 Under Wis. Admin. Code § HA 2.05(3) (Sept. 2001), every parolee or
probationer facing revocation has certain enumerated rights:
(3) CLIENT'S RIGHTS.
The client's rights at the hearing include:
(a) The right to be present;
(b) The right to deny the allegation;
(c) The right to be heard and to present witnesses;
(d) The right to present documentary evidence;
(e) The right to question witnesses;
(f) The right to assistance of counsel;
(g) The right to waive the hearing;
(h) The right to receive a written decision stating the
reasons for it based upon the evidence presented; and
(i) The right to appeal the decision in accordance with
sub. (8)
Wis. Admin. Code § HA 2.05(3)
(emphasis added).
¶25 Subsection (8), in turn, provides for an administrative appeal of a
revocation decision to the administrator of the Division of Hearings and
Appeals. It states:
The client, the client's attorney, if any, or the
department representative may appeal the administrative law judge's decision by
filing a written appeal with arguments and supporting materials, if any, with
the administrator within 10 days of the date of the administrative law judge's
written decision.
Wis. Admin. Code § HA 2.05(8)
(Sept., 2001).
¶26 The petitioners assert that when "[r]ead conjunctively, § HA
2.05(3) and § HA 2.05(8) demonstrate that a parolee has the right to an
attorney during the entire parole revocation process." We disagree.
¶27 Wisconsin Administrative Code § HA 2.05(8) outlines the appeals
process for revocation proceedings.
Significantly, only one appeal is specified in its text: the initial
ten-day administrative appeal. We cannot
find authority in the code to extend the right to assistance of counsel to the
filing of a petition for certiorari review.
Indeed, the 45-day time limit for certiorari review is specified in a
different statute altogether. See
Wis. Stat. § 893.735(2). As a result,
we reject the petitioners' assertion that the Wisconsin Administrative Code
"plainly grants" them a right to counsel to file a petition for
certiorari review.
¶28 We next turn to the petitioners' argument that
Wis. Stat. § 977.05(6)(h) provides a statutory basis for the
right to counsel throughout revocation proceedings, including certiorari
review. The statute provides:
(h) The state public defender may not provide legal
services or assign counsel in parole or extended supervision revocation
proceedings unless all of the following apply:
1. The parolee or person on extended supervision is
contesting the revocation of parole or extended supervision.
2. The department of corrections seeks to have the
parolee or person on extended supervision imprisoned upon the revocation of
parole or extended supervision.
Wis. Stat. § 977.05(h). At oral argument, the petitioners relied
upon this statute, in conjunction with Schmelzer, 201 Wis. 2d at 253, to
advance their position that they are entitled to an attorney at all stages of
the revocation proceedings, including certiorari review.
¶29 In Schmelzer, the defendant's attorney failed to file a
timely petition for review of the court of appeals' decision affirming his
conviction for second-degree sexual assault.
Id. at 249. The issue was
whether there is a statutory right to counsel in the preparation of a petition
for review to this court. Id. Read together, we concluded that "Wis.
Stat. §§ 809.32(4) and
977.05(4)(j) create a
right to counsel in petitions for review and cases before any court, provided
that the counsel does not determine the appeal to be without merit." Id. at 253. The petitioners interpret the phrase "cases before any
court" to mean that they are entitled to counsel beyond the administrative
appeal so long as their petitions for certiorari are not frivolous.
¶30 The problem with the petitioners' reliance on Schmelzer
begins with the statutory authority they cite.
As noted above, Schmelzer established a right to counsel from the
reading together of two statutes: Wis. Stat. §§ 809.32(4) and
977.05(4)(j). Here, the petitioners
rely solely on one statute, § 977.05(6)(h), to advance this argument. Unlike Wis. Stat. § 977.05(4)(j), Wis. Stat.
§ 977.05(6)(h) is not a statutory duty for public defenders to pursue
the case of an indigent person; rather, it is a statutory restriction on
when public defenders may not provide legal services. Although we recognize that public defenders may be permitted to
provide representation when the conditions of Wis. Stat. § 977.05(6)(h) are
met, we fail to see how the statute requires them to do so. Indeed, when examining other statutes
providing for the right to counsel, we note that the legislature has used affirmative
and explicit language. Accordingly, we reject the petitioners'
argument that by negative implication the language of § 977.05(6)(h) mandates a
per se right to assistance of counsel for filing a petition for certiorari
review of an administrative appeal.
¶31 In sum, although the petitioners' argument to extend the right to
counsel may appeal to common sense, we can find no administrative or statutory
authority granting a right to assistance of counsel in their petition for a
writ of certiorari. It may be good
policy, but we cannot substitute judicial policy views for the policy views of
the legislature or rule making authority.
As a result, we conclude
that there is no per se right to counsel to timely file for certiorari
review.
IV
¶32 Having determined that the petitioners are not entitled to a per se
right to counsel to timely
file for certiorari review, our inquiry does not end there. We must next examine if equity requires the
granting of relief.
¶33 We begin by noting that in some cases, a factual question may exist
as to whether a revoked parolee timely asked counsel to file a petition for
certiorari review, whether counsel promised to do so, and whether as a result
of counsel's failure to timely file, the revoked parolee was denied certiorari
review. This may require an evidentiary
hearing by the circuit court.
¶34 In the present case, however, such a hearing is unnecessary. The petitioners' attorneys have accepted
responsibility for missing the filing deadline for the certiorari
petitions. Moreover, the State has
conceded that, "[u]nder these circumstances, Griffin and Glenn probably
are entitled to reinstatement of the right to certiorari review of their parole
revocations based on equitable grounds."
¶35 The 45-day time limit for filing the petitioners' certiorari review
is set forth in Wis. Stat. § 893.735. According to the statute, a prisoner's
certiorari action is "barred" unless timely commenced. Wis. Stat. § 893.735. The 45-day period begins on the date of the
decision or disposition. Id. However, the court may adjust the
commencement of the time limit so that it does not start running until the
prisoner receives actual notice of the administrative decision. Id.
This suggests that the legislature recognized, at least in one instance,
that it would be inequitable to give less than the full 45 days provided for in
the statute.
¶36 When applying Wis. Stat. § 893.735(2), the court of appeals has
also recognized equitable considerations.
Specifically, the court of appeals has tolled the 45-day period when a
prisoner submitted a letter to the prison mail custodian for mailing. State ex rel. Shimkus v. Sondalle,
2000 WI App 238, ¶¶13-14, 239 Wis. 2d 327, 620 N.W.2d 409. It
has tolled the 45-day period from the date on which a prisoner seeking to waive
filing fees asks the department of corrections for the required trust account
statement. State ex rel. Walker v.
McCaughtry, 2001 WI App 110, ¶16, 244 Wis. 2d 177, 629 N.W.2d 17. Moreover, it has tolled the 45-day period
while it waited for the department of corrections to provide certification of
the number of litigation dismissals the prisoner has accumulated. State ex rel. Locklear v. Schwarz,
2001 WI App 74, ¶26, 242 Wis. 2d 327, 629 N.W.2d 30.
¶37 Likewise, this court
has required equitable tolling in other contexts where the failure to timely
file an appeal was beyond the prisoners' control. See State ex rel. Nichols v. Litscher, 2001 WI 119,
247 Wis. 2d 1013, 635 N.W.2d 292; State ex. rel. Brown v. Bradley, 2003
WI 14, 259 Wis. 2d 630, 658 N.W.2d 427.
In Nichols, this court applied equitable tolling in a case where
an inmate left his notice of appeal with the corrections officer in the
mailroom at the prison, and missed the 30-day filing deadline because the
notice was not mailed immediately. 247
Wis. 2d 1013, ¶4. In Brown, we
granted the same relief because we determined that the inmate was
"similarly situated." 259
Wis. 2d 630, ¶37.
¶38 We are mindful that
in the above cases, the factual question of the proper tolling date generally
could be resolved by the use of court records, department of correction
records, or prison records. Determining
whether and when an attorney promised to file a certiorari petition may prove a
more difficult task. Nevertheless, we
are unable to discern any reason why prisoners who retain counsel should be
placed at a disadvantage simply because they relied on counsel's promise. Accordingly, we conclude that petitioners
are entitled to equitable relief when they timely ask counsel to file for certiorari, counsel
promises to do so, and as a result of counsel's failure to timely file they
were denied certiorari review. Provided
that the petitioners timely pursue relief, the 45-day time limit for the filing
of a writ of certiorari is equitably tolled as of the date that counsel
promises to file for certiorari review.
V
¶39 The
final question we consider is whether the tolling rule we adopt today should
receive prospective or retroactive application. In its brief, the State argues that to the extent this court
grants relief, such a holding should not apply retroactively. Rather, it urges that our holding should be
limited to cases for which certiorari review is still available, but also
encompassing Glenn and Griffin. We
agree.
¶40 The
State advances that we should employ the retroactive analysis used in Brown, 259 Wis. 2d 630.
There, we applied the three-pronged test of Chevron Oil Co. v. Huson,
404 U.S. 97 (1971) to the new tolling rule. Id., ¶15. The test asks:
(1)
Does the rule 'establish a new principle of law, either by overruling clear
past precedent on which litigants may have relied, or by deciding an issue of
first impression whose resolution was not clearly foreshadowed?'
(2)
Will retroactive operation further or retard the operation of the rule in
question?
(3)
Will retroactive application produce substantial inequitable results?
Id.,
¶15 (citing Chevron, 404 U.S. at 106).
¶41 The
first factor "inquires whether the new rule overruled past precedent or
decided an issue of first impression whose resolution was not clearly
foreshadowed." Id., ¶18. We determine that this factor favors
prospective application as our rule does not overrule past precedent, but
rather decides an issue whose resolution was uncertain.
¶42 The
second factor examines whether retroactivity "would further or retard the
operation of" the new rule or holding.
Id., ¶21. This too favors
prospective application. We agree with
the State that in many cases, a challenge to revocation will have become moot
because the period of reincarceration has been served. Moreover, due to the passage of time, it
would likely be difficult for courts to make such a fact-specific
determination.
¶43 The
third factor involves consideration of "the equities of
retroactivity." Id.,
¶25. We determine that this also favors
prospective application. Here, we
consider the interests that the State, crime victims, and the public have in
the finality of the decision.
"Full retroactive application could produce inequitable results
because it opens up cases that have long been thought by everyone, including
crime victims, to have been final."
Id. Additionally, as
noted above, due to the passage of time, the parties may have difficulty in
addressing whether and when an attorney has promised to file a certiorari
petition.
¶44 In
the end, we agree with the State that our tolling rule should not apply
retroactively, but rather "be limited to cases for which certiorari review
is still available, but also encompassing Griffin and Glenn." This limited application is consistent with
our holdings in Schmelzer and Brown. Schmelzer, 201 Wis. 2d at 258-59; Brown, 259 Wis.
2d 630, ¶26. "Such an approach
permits some pro se prisoners to benefit from the new rule without the
accompanying difficult proof problems which frustrate the operation of the
rule." Brown, 259 Wis. 2d
630, ¶26. Moreover, such a limited
reapplication "recognizes the finality of case and the inequities that
result from reopening cases thought to be long since closed." Id.
VI
¶45 In sum, we
conclude that although parolees have a right to counsel at the parole
revocation hearing, they have no administrative or statutory right to counsel
to timely file for certiorari in the circuit court. However, we determine that the petitioners here are entitled to
relief on equitable grounds because they timely asked counsel to file for
certiorari, counsel promised to do so, and the failure to timely file led to
dismissal of their petitions.
Accordingly, we reverse the orders dismissing the petitions for writ of
habeas corpus, and remand with instructions to allow reinstatement of the petitioners'
right to certiorari review.
By the Court.—The orders of the circuit courts
are reversed and the causes remanded.
¶46 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I write separately not to criticize the
majority opinion for what it does say, but rather to point out what it does not
say. For the second time in three
years, a majority of this court avoids addressing an issue of importance,
namely, whether a parolee has a right to the assistance of counsel when filing
an administrative appeal to the Division of Hearings and Appeals from a parole
revocation decision.
¶47 Because this important issue affects many hearings and will arise
again, and because the parties have briefed the issue, I conclude that the
court should address it and hold that a right to counsel exists when filing an
administrative appeal.
I
¶48 I would address the issue of the right to the assistance of counsel
when filing an administrative appeal even though it is not dispositive. To determine whether to address issues that
are raised, argued, and briefed by the parties but are not necessary to the
disposition of a case, I would apply the rationale for addressing the merits of
a moot issue. The court should decide
an issue if it "(1) is of great public importance; (2) occurs so
frequently that a definitive decision is necessary to guide circuit courts; (3)
is likely to arise again and a decision of the court would alleviate
uncertainty; or (4) will likely be repeated, but evades appellate review
because the appellate review process cannot be completed or even undertaken in
time to have a practical effect on the parties."
¶49 A number of these factors militate in favor of deciding in the
present case whether a parolee has a right to the assistance of counsel when
filing an administrative appeal of a parole revocation decision. The decision to revoke parole implicates the
safety of the public and the fairness of the procedures and is of great
importance to both the petitioner and the public. Furthermore, parole revocation proceedings, and subsequent
appeals, are a daily administrative matter.
¶50 In addition, both petitioners and the State briefed the issue with
sufficient thoroughness for this court to render a decision. I cannot agree with the majority opinion
that we should save this question for yet another day.
II
¶51 Having concluded that the court should address the question of the right to counsel to file an
administrative appeal, I now turn to answering the question. A brief history of the litigation on this
issue is informative.
¶52 The right to counsel for filing an administrative appeal was first
addressed by the court of appeals in State ex rel. Mentek v. Schwarz,
2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 748 (Mentek I). In that case, counsel represented Mentek at
his probation revocation hearing,
but following an adverse decision, counsel wrote Mentek a letter stating that
an appeal would have no merit. Mentek then filed a petition for writ of
certiorari in the circuit court.
¶53 The State moved to dismiss the petition, arguing that Mentek had
failed to exhaust his administrative remedies. The circuit court granted the State's
motion. In a split decision, the court of appeals
concluded that Wis. Admin. Code § HA 2.05(3)(f)
does not grant a petitioner the right to counsel beyond the probation
revocation hearing. The dissenting opinion construed the Code as
providing the right to counsel to file an administrative appeal.
¶54 On review of Mentek I, this court reversed the court of
appeals' decision on narrow grounds. State
ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150 (Mentek
II). Instead of addressing Mentek's
claim to counsel, this court focused on whether the doctrine of exhaustion of
administrative remedies should be applied to Mentek's certiorari action. This court held that although Mentek failed
to exhaust his administrative remedies, the circuit court could still exercise
jurisdiction over his petition for writ of certiorari.
¶55 I concurred in Mentek II, addressing the right-to-counsel
question left open by the majority opinion.
In doing so, I adopted the reasoning of Judge Brown's dissent in Mentek
I.
¶56 Both Judge Brown and I concluded that the most reasonable
interpretation of Wis. Admin. Code § HA 2.05(3) and § HA 2.05(8)
is that a parolee has the right to the assistance of counsel in filing an
administrative appeal. I will not
repeat our reasoning here. It is
available in both published opinions.
¶57 On my review of Mentek I and Mentek II, I am
persuaded that Judge Brown and I were correct.
I am pleased to report that the State is now also persuaded of the
correctness of these opinions and has adopted their reasoning and
conclusions.
¶58 After analyzing the Code and statutes, the State's brief concludes
that "[a]lthough the State argued in Mentek that there is no right
to counsel for filing an administrative appeal, the State now respectfully
withdraws from that position." The State's brief asserts that "read
together, Wis. Admin. Code § HA 2.05(3) and (8) and Wis. Stat. § 977.05(6)(h)
and (i) reasonably support the proposition that the statutory right to
the assistance of counsel at a final revocation hearing extends to the
assistance of counsel for timely filing an administrative appeal."
¶59 The State's brief points out three questions that may arise in the
future if the court recognizes a statutory right to counsel to timely file an
administrative appeal from a revocation.
The three questions the State's brief poses are as follows:
If there is a statutory right to counsel to timely file
an administrative appeal from a revocation, is there a companion right to effective
assistance of counsel in the presentation of the substantive arguments
and supporting materials on administrative appeal? Moreover, must counsel always file an administrative
appeal upon the parolee's request, even if counsel believes an administrative
appeal would be meritless? If the
answers are yes, what standards of review apply, especially with respect to the
question of prejudice from counsel's alleged deficient performance?
¶60 The State's brief carefully explains, however, that this court need
not now decide the foregoing questions in the present cases. The defendants in the present cases had,
according to the State's brief, timely filed administrative appeals with the
assistance of counsel, and neither parolee is alleging ineffective assistance
of counsel in the handling of an administrative appeal.
¶61 I agree with the State that answering the question about the right
to counsel at an administrative appeal will doubtless produce further
questions. But experience shows that
ignoring a question does not ordinarily make it go away. Delay in answering the issue presented here
and in Mentek I and Mentek II, only means uncertainty and
additional expense and delay for the State and defendants.
¶62 For the reasons set forth, I conclude that the majority opinion
should have reached the issue of whether a parolee has a right to the
assistance of counsel when filing an administrative appeal of a revocation
decision, and it should have concluded, as the State has, that such a right
exists.
¶63 For the reasons set forth, I concur.
¶64 DIANE S. SYKES, J. (concurring). I agree with the majority's analysis of the
right to counsel in this context, and also with its formulation of an equitable
tolling remedy in the circumstances of the cases before the court. On the issue of retroactivity, I agree with
the majority's result but disagree with its analysis. Retroactivity in the context of a collateral attack by habeas
petition of a judgment already final is governed by Teague v. Lane, 489
U.S. 288, 310 (1989), and State ex rel. Schmelzer v. Murphy, 201 Wis. 2d
246, 258-59, 548 N.W.2d 45 (1996). See
State ex rel. Brown v. Bradley, 2003 WI 14, ¶¶38-52, 259 Wis. 2d 630,
658 N.W.2d 427 (Sykes, J., dissenting).
The majority applies the retroactivity analysis of Chevron Oil Co. v.
Huson, 404 U.S. 97, 106 (1971), which the United States Supreme Court
abandoned in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 90
(1993), and which, in any event, does not govern collateral attack
retroactivity analysis.