There are two large problems with the decision that will haunt the courts, each noted in one of the two concurring opinions.
The first is the failure of the lead opinion to recognize a right to the effective assistance of counsel when appealing a parole revocation.
Why such a right should be recognized is more than adequately stated in Judge Browns dissent in State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis.2d 143, 612 N.W.2d 748 (Mentek I), and in Chief Justice Abrahamsons concurrence in State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis.2d 94, 624 N.W.2d 150 (Mentek II), and requires no further discussion.
Nevertheless, the decision in the cases at bar complicates matters more than if the court had actually affirmed the circuit court decisions dismissing them.
Although the court refuses to recognize a statutory right to effective assistance of counsel during the appeal of a parole revocation, it held that equity requires that appeal rights be reinstated where the parolees requested an appeal, and the attorney promised to do so, but did not.
However, taking his holding to its logical conclusion, an attorney could submit a recipe for chocolate truffles to the court, label it a petition for certiorari, and the prisoner must be deemed to have received all the justice to which he is entitled.
That extreme example may never happen, but, at some point, an attorney is going to file a petition that is so inadequate that it might as well have been a recipe for chocolate truffles.
When that happens (and eventually it will), the courts decision will provide no relief. The decision provides relief only if the attorney fails to submit a timely petition at all, and requires that relief be denied if a timely petition is filed, regardless of its inadequacies.
The second problem with the lead opinion is its application of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), in determining whether its decision should be retroactive or prospective only.
As Justice Sykes notes in her concurrence, the U.S. Supreme Court long ago abandoned Chevron Oil. For civil cases, it now uses the standard set forth in Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993), and in criminal cases, Teague v. Lane, 489 U.S. 288 (1989).
Wisconsin courts also switched to Teague in criminal cases, while continuing to use Chevron Oil in civil cases. Last term, in Brown v. Bradley, 2003 WI 14, 259 Wis.2d 630, 637, 658 N.W.2d 427, the court applied Chevron Oil, noting that neither party argued or briefed whether the Harper standard should apply, instead.
In that case, Sykes also wrote separately, and discussed the issue more fully than in the current case.
However, for cases that are criminal in nature, albeit civil in name, the standard in Chevron Oil is patently ill-suited to resolving whether a new rule should be retroactive or prospective.
For a new rule to be retroactive under Chevron Oil, the answer to the three following questions must all be no:
(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? Chevron Oil, 404 U.S. at 106 (emphases added).
The lead opinion, in answering the first question yes, rather than no, omits the portion of the test italicized above. However, it is impossible to omit that portion and still engage in a meaningful discussion of the question.
In a criminal case, parties do not rely on previous binding precedent in the same way they do in ordering their business affairs. The court should have asked itself, Are there other parties in Wisconsin who have arranged their affairs in reliance upon the former rule that an attorney can promise to file a petition for a revoked parolee, fail to do so, and the prisoner has no recourse?
That is the relevant inquiry under Chevron Oil, and had the court asked itself that question, it would have realized, not only have no parties relied upon the former rule, but the question itself is not appropriate in the criminal context, and therefore, the court should be applying Teague, rather than Chevron Oil.
Turning to the second and third questions, the court muddles the issues even worse.
On the second issue, the court concluded that the new rule should be applied prospectively only, because, in many cases, a challenge to revocation will have become moot because the period of reincarceration has been served.
However, that is true whenever any court announces a new rule of criminal procedure. If Chevron Oil states the correct standard, and the courts analysis of the second Chevron Oil question is correct, then no new rule of criminal law could ever be retroactive. There will always be some criminals who could have benefited from the new rule, but who have already finished serving their time.
As for the third rule addressing the equities of retroactive application the lead opinions discussion is nothing short of a refutation of its primary holding.
The entire gist of the courts main holding is based on equity the prisoners have an equitable right to reinstatement of their appeal rights, even in the absence of a statutory right to effective counsel on appeal.
If equity requires reinstatement of the appeal rights of Griffin and Glenn, how could it be substantial[ly] inequitable for any similarly situate
d persons to benefit?
The lead opinion states it would be inequitable because it opens up cases that have long been thought by everyone, including crime victims, to have been final.
However, these cases involve parole revocations, rather than initial convictions. Technically, there is no crime victim in a parole revocation. The prisoners underlying judgment of conviction is not affected, and his initial term of confinement is unaffected.
Technically, the parolee merely failed to comply with the rules of parole. He may have consumed alcohol or controlled substances; he may have failed to maintain steady employment; he may have visited relatives out-of-state without prior permission.
It is true that parole may have been revoked because the parolee committed an assault on another person. However, retroactive application of the rule in this case would not affect the underlying conviction for that assault, but only the revocation.
There is no crime victim whose settled expectations are unsettled by retroactive application to the parole revocation; only the expectations of the Department of Corrections are unsettled.
The lead opinion justifies its application of Chevron Oil instead of Teague by stating, The parties briefs neither cite to Teague nor discuss the application of its retroactivity analysis here. … Because the parties do not raise the issue addressed by the concurrence of Justice Sykes, and thus did not brief or argue the issue, we do not address it here.
However, this is an issue that simply cannot be decided without using Teague.
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David Ziemer can be reached by email.