Warren v. Michigan Parole Bd., Docket No. 6418

• Decision Date: 26 May 1970
• Docket Number: Docket No. 6418,No. 2,2
• Citation: 179 N.W.2d 664,23 Mich.App. 754
• Parties: Joseph H. WARREN, Plaintiff-Appellant, v. MICHIGAN PAROLE BOARD, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

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179 N.W.2d 664 23 Mich.App. 754 Joseph H. WARREN, Plaintiff-Appellant,
v.
MICHIGAN PAROLE BOARD, Defendant-Appellee. Docket No. 6418. Court of Appeals of Michigan, Division No. 2. May 26, 1970.
Leave to Appeal Granted Aug. 12, 1970.
Released for Publication Oct. 2, 1970.

[23 Mich.App. 756] Joseph H. Warren, in pro. per.

Frank J. Kelley, Atty Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Atty. Gen., for appellee.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Presiding Judge.

The question presented is whether an indigent parolee is entitled to have counsel provided at State expense to represent him at a parole revocation hearing.

Joseph H. Warren was sentenced in 1960 to serve two to fifteen years for breaking and entering in the nighttime. He was paroled and in July, 1968 returned to prison charged with parole violation. He appeared before the parole board, claimed that he was indigent and requested the appointment of counsel to represent him at the statutory hearing on the parole violation charges. The request was denied. Following the hearing the board ordered that he be incarcerated for a minimum period of 18 months before his status would again be reviewed.

Upon Warren's petition, our Court issued an order requiring the parole board to show

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cause why a writ of superintending control should not issue granting him the relief requested in his petition.

The pertinent statute provided:

'Whenever a parole prisoner is accused of a violation of his parole * * * he shall be entitled to a fair and impartial hearing of such charges. [23 Mich.App. 757] * * * Upon such hearing such parole prisoner shall be allowed to be heard by counsel of his own choice, At his own expense, and may defend himself.' M.C.L.A. § 791.240 (Stat.Ann.1954 Rev. § 28.2310). ¹

(Emphasis supplied.)

In Saunders v. Department of Corrections, Parole Board (1968), 15 Mich.App. 183, 166 N.W.2d 278, Leave to appeal denied (1969), 381 Mich. 818 cert. den. (1970), 396 U.S. 1025, 90 S.Ct. 602, 24 L.Ed.2d 520), ² we held that the Due Process Clause does not require the appointment of counsel at public expense to represent indigent parolees at parole revocation hearings. ³

An additional issue had been raised relating to the Equal Protection of the Laws Clause, but we said that it was unnecessary to consider the issue on the merits because even if it was decided that the provision of our statute permitting representation by an attorney when the parolee has sufficient financial resources to hire one unconstitutionally discriminates against an indigent person, such a decision would not benefit Saunders. We said, 'We find it unnecessary to consider this issue raised on its merits. Whether this Court held such portion of the statute constitutional or unconstitutional would afford no relief to plaintiff.'

[23 Mich.App. 758] Judges of our Court have declared that we are not bound by the decisions of our brothers and that one panel of our Court is, therefore, free to decide a question differently than it has already been decided by a panel to which the question has previously been presented. ⁴

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We think there are compelling reasons to reexamine the issue presented in Saunders. The Michigan legislature has declared that parolees may be represented by counsel at parole revocation hearings. Thus, even if the Due Process Clause does not require that parolees in every jurisdiction be permitted to appear with counsel, the question remains whether Michigan denies indigent parolees equal protection of the laws when it permits parolees who can afford counsel to be represented by counsel and refuses to assign counsel for the indigent.

A decision on the merits cannot be avoided by assuming that a finding of unconstitutionality would not profit the parolee. Although a declaration of unconstitutionality could be viewed as depriving both non-indigent and indigent parolees of the right [23 Mich.App. 759] to counsel, that has not been the path that has been followed by the Supreme Court of the United States in dealing with similar questions.

In Griffin v. Illinois (1956), 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891, the Court acknowledged that:

'It is true that a state is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.'

Nevertheless, it held that it was a denial of due process and of equal protection for a State to deny appellate review solely on account of a defendant's inability to pay for a transcript. The remedy fashioned was not to eliminate appellate review altogether but rather to require the State to provide adequate and effective appellate review to indigent defendants. Similarly, in Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, rehearing denied 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200, the Court held that appellate counsel must be provided an indigent person where a man of means is entitled to be represented upon appeal by a lawyer. ⁵

In Saunders we concluded (15 Mich.App. p. 185, 166 N.W.2d p. 279):

'Plaintiff herein appeared before an administrative board under a statutory procedure. Parole revocation proceedings are not 'judicial proceedings' requiring counsel under due process. Jones v. Rivers (CA 4, 1964), 338 F.2d 862; Rose v. Haskins ((CA 6, 1968), 388 F.2d 91, 97); Wingo v. Lyons (Ky.1968), 432 S.W.2d 821.'

None of the three cases so cited in Saunders dealt with the issue in terms of a possible denial of Equal [23 Mich.App. 760] protection of the laws. They hold, rather, that it is not a denial of Due process to revoke a parole without a hearing (Rose v. Haskins, Supra), that Due process does not require that counsel be provided an indigent parolee (Jones v. Rivers, Supra), and that a parole revocation hearing is not a critical stage requiring the appointment of counsel (Wingo v. Lyons, Supra). ⁶

The equal protection question was not squarely presented in Jones v. Rivers. That case arose under a Federal parole statute; the Equal Protection of the Laws Clause of the Fourteenth Amendment is a limitation on State, not Federal, action. ⁷ In both

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Rose and Wingo, which did arise under State statutes, the issue was whether the statutory provisions concerning parole revocation satisfied minimal requirements of due process; there was no claim that poor parolees were accorded a different process than those with financial means.

In our research we have found not a single case, other than Saunders, arising under a statute such as ours (expressly permitting or interpreted as permitting parolees to appear with counsel) where the [23 Mich.App. 761] question decided ⁸ was whether it is a denial of equal protection to refuse to provide counsel at State expense to indigent parolees. ⁹

Procedural claims advanced by parolees have as in the cases relied on in Saunders, been largely analyzed in terms of whether parolees have rights, or just privileges, ¹⁰ whether the due process clause provides any protection to parolees and whether revocation is a 'critical stage.' Little attention has been given to the issue before us of whether the disparity in the representation of nonindigent and indigent parolees constitutes an invidious, and, [23 Mich.App. 762] therefore, unconstitutional discrimination against the poor. ¹¹

Two judicial opinions which have played a leading role ¹² in the development of the

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law concerning the right of counsel in parole revocation proceedings are Jones v. Rivers, Supra, and Hyser v. Reed (1963), 115 U.S.App.D.C. 254, 318 F.2d 225.

Jones in turn is based on Hyser. And Hyser was influenced by earlier opinions of the United States Supreme Court, particularly Escoe v. Zerbst (1935), 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566. There the United States Supreme Court held that it would not violate the constitution to revoke probation without a hearing. ¹³

The force of the majority opinion in Hyser v. Reed, and of Jones which followed it, and of the State court decisions based on Hyser and Jones, have been largely undermined by Mempa v. Rhay (1967), 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, where the United States Supreme Court held that when a convicted[23 Mich.App. 763] person is placed on probation and imposition of sentence is deferred, counsel must be offered and provided indigents at a hearing to consider revocation of probation and sentencing. Mempa manifestly modifies, perhaps overrules Sub silentio, Escoe v. Zerbst; if there is a constitutional right to counsel at a probation revocation hearing, then clearly there must be a right to a hearing.

In Jones v. Rivers, Supra, there are three opinions. In the lead opinion, unequivocably signed by only one judge (Judge Boreman), the Court reviews earlier United States Court of Appeals decisions concerning parole revocation hearings under Federal statutes. ¹⁴ In Hyser v. Reed, Supra, the Court sat En banc. There are four separate opinions in addition to the majority opinion. The majority held that neither a Federal statute, which provides that a retaken prisoner shall be given an opportunity to appear before the board, neither the statute nor the Due Process Clause requires the board to allow cross-examination of its sources of information, discovery of its files or a right of compulsory process and that an indigent prisoner is not entitled to be furnished with counsel even though the Court had earlier construed the statute as allowing a parolee who could afford to pay a lawyer's fee to appear with counsel (see footnote 14).

[23 Mich.App. 764] In Jones v. Rivers, Supra, which, like Hyser v. Reed, was decided before Mempa

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v. Rhay, Supra, the issue of the right to counsel was presented in a case involving the construction of the parole statute applicable in the District of Columbia. While the lead opinion in Jones v. Rivers aligns itself conceptually with the majority opinion in Hyser v. Reed, it is apparent...