Mississippi State Probation and Parole Bd. v. Howell

• Citation: 330 So.2d 565
• Decision Date: 16 March 1976
• Docket Number: No. 49077,49077
• Parties: MISSISSIPPI STATE PROBATION AND PAROLE BOARD v. Janie Grace HOWELL.
• Court: United States State Supreme Court of Mississippi

Page 565

330 So.2d 565

MISSISSIPPI STATE PROBATION AND PAROLE BOARD v. Janie Grace HOWELL.

No. 49077.

Supreme Court of Mississippi.

March 16, 1976.

Rehearing Denied May 4, 1976.

Stay Denied May 24, 1976. See 96 S.Ct. 2199.

Certiorari Dismissed June 23, 1976. See 96 S.Ct. 3184.

A. F. Summer, Atty. Gen., by Edwin A. Snyder, Sp. Asst. Atty. Gen., Jackson, for appellant.

Joe M. Ragland, Jackson, for appellee.

Before GILLESPIE, C.J., and SMITH and ROBERTSON, JJ.

GILLESPIE, Chief Justice.

This is an appeal by the Mississippi State Probation and Parole Board (Board) from an order of the Circuit Court of Hinds County directing the clerk of that court to issue a writ of mandamus commanding the Board to grant Janie Grace Howell, a parolee, 'her absolute right to present her defense at any subsequent parole revocation hearing, preliminary, or final state.' The Board demurred to the petition and the writ was issued upon overruling of the demurrer without proof.

The question of whether the writ of mandamus was erroneously issued, as claimed by the Board, has several points of inquiry next to be stated and discussed.

1. Does a prisoner who is on parole have an absolute right to be represented by retained counsel at any revocation hearing, whether preliminary or final?

The United States Constitution does not require counsel in all parole revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The parole argues that her absolute right to be represented at any hearing is vouchsafed by Mississippi Constitution, Article 3, section 25, which is as follows:

No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.

Parolee further argues that a revocation proceeding is a civil cause and that the parole officer conducting the hearing is a tribunal within the meaning of the cited section of the Mississippi Constitution. We hold that an officer conducting a revocation hearing is performing an administrative act. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, (1972). As suggested in Gagnon, there may be complex cases difficult to develop or present that would require appointment of counsel for an indigent parolee. Likewise, there may be complex cases where assistance of counsel is necessary and where the parole officer should permit the parolee to be represented by retained counsel. But most of the tens of thousands of hearings would not require counsel, and the courts ought not to hold that every parolee is entitled to counsel in every hearing. As said in Gagnon, 'the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings.' In that case the Court noted that over 128,000 revocation hearings occur each year.

In Morrissey v. Brewer, supra, the Court said that the preliminary hearing should be held promptly, at or near the place of the alleged parole violation or arrest. The Court also said that the purpose of the preliminary hearing is to determine whether there is probable cause to believe the parolee has committed acts that would constitute a violation of parole conditions. The Court further said:

(T)he State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. 408 U.S. at 483, 92 S.Ct. at 2601, 33 L.Ed.2d at 495.

In Gagnon the Court was concerned with the requirements of the State to appoint counsel for an indigent parolee, but what was said is applicable to the question whether every parolee has an absolute right to be represented by counsel in every hearing. In Gagnon, the Court said:

The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views. The role of the...