Bolyard v. Berman

• Decision Date: 06 July 1994
• Citation: 274 N.J.Super. 565,644 A.2d 1122
• Parties: Ira BOLYARD, Timothy Coleman, William Frank, Edward Mitchell and James Quarles and New Jersey Association on Correction, Plaintiffs-Appellants-Cross-Respondents, v. Douglas BERMAN, Treasurer, State of New Jersey; New Jersey State Parole Board and James Florio, Governor of New Jersey, Defendants-Respondents-Cross-Appellants, and Department of the Public Advocate, Office of the Public Defender; General Assembly of the State of New Jersey and Senate of the State of New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 565

274 N.J.Super. 565

644 A.2d 1122

Ira BOLYARD, Timothy Coleman, William Frank, Edward Mitchell and James Quarles and New Jersey Association on Correction Plaintiffs-Appellants-Cross-Respondents, v. Douglas BERMAN, Treasurer, State of New Jersey; New Jersey State Parole Board and James Florio, Governor of New Jersey Defendants-Respondents-Cross-Appellants and Department of the Public Advocate, Office of the Public Defender; General Assembly of the State of New Jersey and Senate of the State of New Jersey, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 10, 1994.

Decided July 6, 1994.

Patrick F. McAndrew, Moorestown, for appellants-cross-respondents (Brandt, Haughey, Penberthy, Lewis & Hyland, attorneys; Eileen K. Fahey and Mr. McAndrew, on the brief).

Michael Carlin, Deputy Atty. Gen., for respondents-cross-appellants Treasurer Berman, New Jersey State Parole Bd. and Governor Florio (Deborah T. Poritz, Atty. Gen., attorney; Joseph L. Yannotti, Asst. Atty. Gen., of counsel; Mr. Carlin, on the brief).

No briefs have been filed by respondents Public Defender, General Assembly or Senate.

Before Judges MICHELS, SKILLMAN and WEFING.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Plaintiffs seek by this appeal to establish that indigent parolees charged with violations of parole have a right to counsel under either the New Jersey Constitution or state common law which is broader than that guaranteed by the United States Constitution as interpreted by the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Plaintiffs also seek to establish that the State cannot satisfy its obligation of providing counsel to indigents in parole revocation proceedings by the assignment of members of the private bar, but must instead appropriate sufficient funds to the Public Defender's Office to perform this responsibility.

When their complaint was filed, plaintiffs Bolyard, Coleman, Frank, Mitchell and Quarles were indigent parolees who had been charged with violations of parole but who had not been assigned counsel due to the Legislature's failure to fund the Parole Revocation Unit of the Public Defender's Office for the 1991-92 fiscal year. Plaintiff New Jersey Association on Correction, which subsequently joined in this action, describes itself as "an organization of citizens working together for an effective criminal justice system" which provides various services to offenders and victims, including "resource centers for parole and probation purposes." See New Jersey Ass'n on Correction v. Lan, 80 N.J. 199, 204, 403 A.2d 437 (1979). Defendant New Jersey State Parole Board has the statutory responsibility to administer the State's parole system, see N.J.S.A. 30:4-123.48, which includes the conduct of parole revocation proceedings. See N.J.S.A. 30:4-123.62 to -123.63. Defendant Office of the Public Defender (the Public Defender) has the statutory responsibility to provide legal representation to indigents charged with criminal offenses, N.J.S.A. 2A:158A-5, as well as to represent indigent parolees charged with violations of parole. N.J.S.A. 2A:158A-5.1. The other defendants are all state officials who are responsible for the formulation and enactment of the Annual Appropriations Act under which appropriations are made to all state agencies, including the Public Defender.

In June 1991, the Legislature passed and the Governor signed into law the Annual Appropriations Act for 1991, L.1991, c. 185, which contained a provision withholding any appropriation to the Public Defender for the purpose of providing legal representation to indigent persons appearing before the Parole Board:

Notwithstanding any provision of section 2 of P.L.1974, c. 33 [N.J.S.A. 2A:158A-5.1], or any other provision of law, or any other provision of this appropriations act, no State funds are appropriated to fund the expenses associated with the legal representation of persons before the State Parole Board or the Parole Bureau.

[L.1991, c. 185, 1991 N.J.Laws 1017, 1083.] ¹

Around the same time, the then Public Defender announced that his office would no longer be able to provide representation to parolees charged with violations of parole due to the Legislature's withholding of appropriations for this purpose.

Plaintiffs then commenced this action, asserting that there is a right guaranteed under both the United States Constitution and the New Jersey Constitution, as well as under other provisions of state law, to counsel in parole revocation proceedings, and seeking to compel defendants to continue the funding required to enable the Public Defender to provide such representation. The matter was brought before the trial court on October 16, 1991, pursuant to an order to show cause and defendants' motions to dismiss. The trial court recognized that some indigent parolees charged with violations of parole are entitled to counsel under the United States Constitution as interpreted by the Supreme Court in Gagnon. However, the court concluded that there is no basis under the New Jersey Constitution or other provision of state law for the recognition of a more expansive right to counsel than is guaranteed by Gagnon. The court also concluded that there is no basis for requiring the Legislature to continue funding the Parole Revocation Unit in the Public Defender's office. The court further recognized that neither the Parole Board nor any other state agency had established a system to provide indigents the representation guaranteed by Gagnon after the Public Defender announced that he would be unable to continue providing legal representation in parole revocation proceedings. Accordingly, the trial court entered an order on October 28, 1991, directing the parties to conduct discovery for the purpose of providing information "to assist the Court in fashioning a ruling in accord with Gagnon v. Scarpelli." ²

Thereafter, the Parole Board, with the assistance of plaintiffs, the Public Defender's Office and the Administrative Office of the Courts (AOC), undertook to develop a system for providing counsel to indigent parolees entitled to representation under the standards set forth in Gagnon. However, after six months elapsed without the Parole Board adopting such a system, plaintiffs filed a motion in April of 1992 which, among other things, asked the trial court to set a schedule for the Parole Board "to propose a remedy to screen citizens and to provide counsel to citizens who require counsel at parole revocation hearings." The court granted plaintiffs' motion and entered an order on May 28, 1992, which directed defendants to present a proposal by July 2, 1992 for "a remedy to ensure that counsel is provided for citizens whose parole may be revoked, under the criteria set forth in Gagnon v. Scarpelli."

The Parole Board submitted a proposal to the trial court in conformity with this order on July 2, 1992. Shortly thereafter, plaintiffs filed a motion seeking modifications of this proposal. In addition, the AOC and the Office of Public Defender submitted comments.

After the trial court adjourned consideration of plaintiffs' motion on several occasions, apparently for the purpose of obtaining further comments from the AOC regarding its role in the implementation of the Parole Board's proposal, plaintiffs filed a motion seeking to enjoin the Parole Board from detaining any person on an alleged parole violation or from revoking any person's parole until it implemented a system for providing counsel for indigent parolees in conformity with Gagnon. The court denied the requested injunctive relief, but entered an order on December 3, 1992, which approved the Parole Board's proposal for providing counsel to indigent parolees charged with violations of parole, subject to certain modifications agreed to by the Parole Board.

The procedures approved by the trial court require the Parole Board to screen indigent parolees to determine whether they are entitled to counsel under Gagnon. This screening responsibility is performed by "parole counselors," who the Parole Board is responsible for training. If the Parole Board determines that a parolee is entitled to counsel, it refers his or her name to the AOC to verify indigency, and if the parolee satisfies this condition, the matter is referred to the Assignment Judge of the vicinage in which the parole revocation probable cause hearing is scheduled to be heard for the assignment of counsel pursuant to Rule 3:27-2.

Thereafter, plaintiffs filed a motion for an award of counsel fees under the Civil Rights Attorney's Fees Awards Act of 1976. 42 U.S.C.A. § 1988(b). The trial court granted this motion, finding that "plaintiffs were the prevailing party in this litigation, because it was through their efforts that the Parole Board adopted a remedial scheme to guarantee their rights pursuant to Gagnon v. Scarpelli," and awarded them $20,665 in counsel fees.

Plaintiffs have appealed from the court's order of December 3, 1992, approving the Parole Board's procedures for providing assigned counsel under the circumstances required by the Supreme Court in Gagnon, contending that, as a matter of New Jersey law, indigent parolees should be assigned counsel in all parole revocation proceedings and that the Legislature should be required to appropriate funds to provide that representation through the Office of Public Defender. The Parole Board has filed a cross-appeal challenging the trial court's award of counsel fees to plaintiffs.

We reject plaintiffs' argument that New Jersey law entitles indigent parolees charged with violations of parole to legal representation in a broader range of circumstances than is required under the United States Constitution, as interpreted in Gagnon. We also reject plaintiffs' argument that the State is required to provide legal representation to such parolees by funding a Parole Revocation Unit in the ...