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Parolees have equitable right to timely appeal

Although revoked parolees have no statutory right to counsel in a certiorari review of revocation in circuit court, equity requires that their appeal rights be reinstated when they timely requested that counsel appeal, but counsel failed to do so, the Wisconsin Supreme Court held on March 30.

Peter D. Griffin and Micah E. Glenn were both on parole, but were revoked after revocation hearings at which they were represented by counsel. In both cases, counsel filed timely administrative appeals, but the Division of Hearings and Appeals affirmed.

Glenn asked his attorney to file a petition for writ of certiorari in circuit court, but his counsel failed to do so. Griffin’s attorney did file a petition, but it was dismissed because it was untimely.

Both then sought habeas corpus review, arguing that they were denied effective assistance of counsel. Glenn’s petition was denied by Milwaukee County Circuit Court Judge William Haese, and Griffin’s was denied by Milwaukee County Judge Michael Sullivan. Both appealed, and the court of appeals consolidated the cases and certified them to the Supreme Court.

The Supreme Court accepted review and reversed in a decision by Judge Ann Walsh Bradley. Both Chief Justice Shirley S. Abrahamson and Justice Diane S. Sykes wrote concurring opinions, with Justices N. Patrick Crooks and Jon Wilcox joining Sykes’ concurrence.

Statutory Rights

The court held that there is no statutory right to counsel to file a timely petition for certiorari review of a parole revocation decision.

Pursuant to Wis. Admin. Code HA 2.05(3)(f) & (i), parolees have “the right to assistance of counsel,” and “the right to appeal the decision in accordance with sub. (8).

Subsection (8) provides, “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.”

Nevertheless, the court rejected the parolees’ argument that the two provisions, read conjunctively, guarantee the right to counsel during the entire revocation process.

The court reasoned, “Significantly, only one appeal is specified in [subsec. (8)]: 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. sec. 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.”

The court also found no statutory authority for a right to counsel in sec. 977.05(6)(h). The statute provides: “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.”

What the court held

Case: Griffin v. Smith, No. 01-2345; and Glenn v. Litscher, No. 02-1320.

Issue: Is there a statutory right to effective assistance of counsel in the appeal of a parole or probation revocation?

Does equity require that a prisoner’s appeal rights be reinstated when his attorney failed to file a timely appeal of a parole revocation?

Holding: No. The statutes only require counsel during the revocation hearing.

If so, is the equitable right to a timely appeal retroactive or prospective only?

Yes. Equity requires the granting of relief.

Relief is prospective only.

Counsel: Nathaniel Cade, Jr., Milwaukee, for appellant; James M Freimuth, Peggy A. Lautenschlager, Madison, for respondent.

However, the court concluded, “Unlike Wis. Stat. sec. 977.05(4)(j), Wis. Stat. sec. 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. sec. 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.”


Although the court found no per se right to counsel to timely file for certiorari review, the court concluded that equity requires granting relief to these petitioners.

The court acknowledged that, in some cases, a factual question may exist whether a revoked parolee timely asked counsel to file a petition for certiorari review, and this may require an evidentiary hearing by the circuit court. In the cases at bar, however, it was undisputed that the attorneys accepted responsibility for not filing timely petitions. In addition, the State conceded that under these circumstances, Griffin and Glenn are “probably” entitled to reinstatement of the right to certiorari review on equitable grounds.

In addition, although sec. 893.735 sets a 45-day time limit for filing review, the statute permits adjusting the limit so that it does not start running until the parolee receives notice of the administrative decision. Furthermore, the 45-day period has been tolled when a prisoner submitted a letter for mailing, but the prison did not timely do so.

The court concluded, “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.”


However, the court held that its decision would only have prospective, not retroactive, application, while still encompassing Glenn and Griffin, pursuant to the three-pronged test of Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971).

Chevron Oil asks three questions, all of which must be “no” for a rule to be retroactive: (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? and (3) Will retroactive application produce substantial inequitable results?

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Case Analysis

Because its decision decided an issue whose resolution was uncertain, the court found the first factor favors prospective application. The court also noted that, in many cases, a challenge would be moot due to release, or difficult because of the passage of time, and found the second factor favors only prospective relief as well.

Finally, the court found the third factor also favors prospective application, because of the interests that the State, crime victims, and the public have in the finality of the decision.

Accordingly, the court reversed the dismissal of the habeas corpus petitions, and remanded with instructions to allow reinstatement of Glenn’s and Griffin’s right to certiorari review.

The Concurrences

Abrahamson wrote separately, arguing that the court should recognize a parolee’s right to counsel. Abrahamson did not argue the merits, however, but cited to Judge Richard Brown’s dissent in State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 748 (Mentek I), and her own concurrence when reviewing that case, State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150 (Mentek II).

Justice Sykes wrote separately to argue that the question whether a new rule of law should be retroactive or prospective is not governed by Chevron Oil Co., but by Teague v. Lane, 489 U.S. 288 (1989).

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David Ziemer can be reached by email.

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