*1 State Wisconsin rel. Peter D. Griffin, ex
Petitioner-Appellant,
v. Judy Respondent-Respondent. P. Smith, Warden,
State of Wisconsin ex rel. Micah E. Glenn,
Petitioner-Appellant, Secretary, Department E. Jon of Correc Litscher, Judy tions, Smith, Warden, Oshkosh Correctional Institution, David Schwarz, Administrator, Hearings Appeals, Respondents- Division of
Respondents. Supreme Court 01-2345, Nos. 02-1320. argument Oral October Decided March
For the argued by respondents the cause M Fre- was James attorney general, imuth, assistant with whom on the Peggy Lautenschlager, attorney general. was A. brief BRADLEY, are ANN WALSH J. These cases
before the court on certification from the court of appeals.1 petitioners, Micah E. D. Glenn and Peter they Griffin, assert that were denied effective assis- attorneys tance of counsel when their failed to judicial seeking file a for writ of certiorari appeal. of an administrative appeals certification, of its the court states the issue as follows: [parolee]
Whether a has a to the effective assis- [parole] revocation decision tance counsel from promised petition.2 to file a certiorari when counsel appeals Micah E. Glenn an order of the circuit court County, Haese, Judge, denying Milwaukee William his writ corpus. habeas appeals D. an order of the circuit court for
Peter Griffin Sullivan, denying County, Judge, Michael his writ Milwaukee corpus. habeas underlying to the Although appeals the court of refers revocations, they actually parole "probation"
matters as are however, herein, presented revocations. For the issues our analysis applies to both. *5 parolees have a to counsel at the 3. While hearing, no we conclude that there is revocation timely statutory right or to counsel to
administrative However, circuit court.3 we file for certiorari petitioners here are entitled to relief that the determine they timely grounds requested equitable because on promised review, counsel counsel to file for certiorari timely file, failure to so, do and as a result of counsel's Accordingly, they review. we were denied certiorari dismissing the the orders of the circuit courts reverse corpus, petitions for writ of habeas and remand with petitioners' of the instructions to allow reinstatement right to file for certiorari review.
r—H represented by coun- 4. Glenn and Griffin were respective parole hearings. at their revocation Fol- sel lowing case, in each an adverse decision appeal. filed an The Division of Hear- administrative ings rejected appeals. petitioners Appeals and both allege promised that their counsel to file for certiorari in the circuit court but failed to do so. review4 counsel," at By "right to we mean assistance of counsel expense. parolees remain free to retain state Probationers hearing subsequent and all private counsel at the revocation stages appeal. of a decision consists of four Certiorari review (1) jurisdiction;
inquiries:
kept
whether the division
within its
(3)
(2)
law;
according
it acted
whether its actions
whether
(4)
unreasonable;
arbitrary,
oppressive,
were
or
whether
reasonably make the
permitted
the evidence
the division to
Horn,
question.
or determination in
State v.
226 Wis.
order
(1999)
637, 652,
(citing State ex rel. Warren v.
habeas relief the circuit alleging ineffective assistance of counsel for failure petitions file their for certiorari The review. petitions their circuit courts denied for writ of habeas corpus. petitioners appealed,
¶ 6. Both and the court appeals consolidated the cases. It then certified the appeals specific consolidated court. The in this facts each case are forth set below.
A. State ex rel. v. Litscher Glenn second-degree ¶ 7. was Glenn convicted of inten- 17, 1995, tional homicide on October and sentenced to years prison. paroled He from seven was that sen- 15, tence on December 1997. February 14, 2000, 8. On was involved in Glenn subsequently charged battery
an altercation and with damage property. parole agent and criminal His proceedings initiated and the revocation administrative judge 5, his on June 2000. law revoked On appeal, administrative claimed Glenn that addi- allegation, girl- he kill tional that threatened to his wrongly ground friend, was used as a for revocation allegation because he did not receive notice of the hearing. The before assistant administrator of the Hearings Appeals disagreed Glenn, Division of with July and affirmed his revocation on 5All references are to the 2001-02 version of the Wisconsin Statutes unless noted. otherwise upholding decision Glenn's judicial may him that be
informed filing petition obtained days of certiorari a for a writ within 45 July 1, 2000, the decision to be reviewed. Around initially requested Glenn attorney that his file writ of certiorari. July 6, 2000, 10. On Glenn met with his attor-
ney again asked him to file for certiorari review. attorney requested a letter of facts and issues Glenn's together regarding the additional with information allegation girl- had threatened to kill his Glenn July July friend. Glenn sent that letter on 2000. On attorney 27, 2000, assured him that he Glenn's would contesting give file for certiorari review the failure to allegation threatening notice of the additional to kill girlfriend grounds peti- his as for revocation. Glenn's *7 August 17, tion for writ of certiorari was due on 2000. attorney His never filed it.
¶ 26, 11. a 2001, On December Glenn submitted pro petition corpus se for writ of habeas to this court. alleged attorney provided negligent He that his and incompetent representation by failing petition to file a for certiorari review of the revocation decision promising despite to do so. This court referred the petition County to the circuit on Milwaukee court February 19, filed a 2002. Glenn motion with circuit hearing petition court for a Machner6 on his for writ of corpus. habeas attorney
¶ 12. The assistant district filed a mo- petition, tion to dismiss Glenn's and the circuit court 6 Machner, 797, State Under 92 Wis. N.W.2d (Ct. 1979), hearing may App. a be held when a criminal challenged allegedly providing defendant's trial counsel for hearing, ineffective assistance. At the trial counsel testifies as to reasoning challenged action or inaction. his or her on the granted The court determined that Glenn was not it. upon ineffective entitled to relief based assistance of statutory right no constitutional or counsel because for certiorari review of revocation deci- counsel exists sions. It further concluded that failed to demon- Glenn attorney's alleged unduly strate that his deficiencies appeals. prejudiced his case. Glenn now B. State ex rel. v. Smith Griffin petitioner, Griffin, The other Peter D. was 13. possession convicted for with intent to deliver cocaine possession with intent to deliver cocaine on base paroled 10, 14, December 1991. He was on October August parole agent 2000, found Griffin's bags pager in car. The three of cocaine and a Griffin's parole prohibited possession of terms of Griffin's these hearing items. At the revocation on November judge parole. the administrative law revoked Griffin's appealed and the of the Division Griffin administrator Hearings Appeals affirmed the revocation. That judicial may decision contained a notice that be by filing petition of certiorari for writ within obtained days of the date of the to be reviewed. decision 15. Griffin's counsel filed writ January 15, 2001, deadline certiorari but missed the legal days. attorney ten stated that his assistant suddenly causing ill, had him to miss the become *8 deadline. the He then filed a motion for extension of 45-day filing deadline, it denied because the but was 45-day that motion the limit. court received outside May 19, 2001, filed a 16. On Griffin deprived corpus, alleging he had been writ of habeas during of his effective assistance of counsel 243 argued that his at- revocation decision. Griffin torney despite file for certiorari review failed to promising to do so. peti-
¶ 17. The circuit court dismissed Griffin's parolees a tion. It concluded that do not have constitu- right to for certiorari tional or common law appeal. filed a review of an administrative Griffin dismissing petition. his motion to reconsider order judge The dismissed that motion and Griffin now appeals.
I—IM ¶ 18. Resolution of the issue set forth in the by appeals requires certification the court of us interpret portions along code, of the administrative interpretation of an with statute. administrative subject presents question rule or statute of law L'Minggio independent appellate rel. v. review. State ex Gamble, ¶82, 11, 55, 263 2d 667 2003 WI Wis. N.W.2d Byers, 1; 86, 12, 113, State v. 2003 263 665 WI N.W.2d regu interpreting
¶ 19. an administrative When generally interpretation lation, we use the same rule of applicable Busch, as to statutes. State v. 217 Wis. 2d (1998). goal statutory 429, 441, 576 Our N.W.2d905 interpretation or administrative rule discern legislature intent of the or the rule maker. See State ex Staples Young, rel. Wis. 2d N.W.2d (Ct. 1987). App. duty intent Our to fulfill this requires uphold separation powers that we judicial substituting policy views for the views of *9 legislature making authority. or rule State ex rel. Schwarz, 18, 473, Cramer v. 2000 WI 236 Wis. 2d 613 N.W.2d
I—I HH l-H begin question by ¶ 20. with the certified We appeals: court of [parolee] right
Whether a
has a
to the effective assis-
[parole]
from a
tance
counsel
revocation decision
promised
petition.
counsel
to file a certiorari
when
has
petitions
predicated
¶ 21. The
are
habeas
here
on
right
representation
the existence of a
to effective
on certiorari review of an
administra-
counsel
adverse
addressing
appeal.
question,
tive
certified
we
generally
note that this court has
right
held that where a
See
exists,
to counsel
counsel must be effective.
Murphy,
246, 253,
ex rel. Schmelzer v.
State
(1996).
inquiry
Thus,
that there is a constitutional to counsel to agree. petitions for their certiorari review. We Supreme per Amend- Court has not extended se Sixth hearings at or certio- ment part rari probationers of revocation because decisions parolees have a more limited due process right yet con- than those who have not been Gagnon Scarpelli, of a crime. See 411 U.S. victed (1973). ("Probation parole revocation, like revoca- ....") stage prosecution A tion, is not a of a criminal product revocation is the of an administrative challenging proceeding and the mechanism asking of certiorari the court to revocation is writ *10 Cramer, decision. See review the administrative Wis. petitioners rely upon Instead, adminis- statutory authority posi-
trative and to advance their they argue, court, "the tion. their briefs to this plainly grants Administrative Code defen- Wisconsin right statutory pursue a to certiorari dants to counsel probation review of or revocation decisions." At argument, they oral § further asserted that Stat. Wis. 977.05(6)(h) provides statutory right basis for the to throughout proceedings, the revocation includ- ing certiorari review in the circuit court. We examine arguments. each of these 2.05(3) § (Sept.
¶ 24. Under Admin. Code HA Wis. 2001), every parolee facing probationer or rights: certain enumerated has (3) rights CLIENT'S The client's at the hear- RIGHTS. ing include:
(a) right present; The to be
(b) right deny allegation; The to (c) witnesses; right present The to be heard and to (d) evidence; right present documentary The (e) right question witnesses; The (f) counsel; right The to assistance of (g) hearing; The to waive the (h) stating The to receive a written decision presented; it upon reasons for based the evidence (i) accordance with decision in appeal The (8) sub. added). 2.05(3) (emphasis § HA Admin. Code
Wis. (8), provides for an ad- turn, ¶ 25. Subsection appeal decision to a revocation ministrative Appeals. Hearings and Division of of the administrator It states: attorney, any, depart- or the if client, the client's law the administrative may appeal representative
ment argu- filing with written judge's decision materials, any, the admin- if with supporting ments administrative date of the days of the within istrator judge's decision. law written 2001). 2.05(8) (Sept., § HA Admin. Code *11 "[r]ead petitioners that when assert 2.05(8) 2.05(3) § §
conjunctively, demon- HA HA during attorney parolee to an has the that a strate disagree. process." parole We revocation the entire § HA Code Administrative 27. Wisconsin 2.05(8) pro- process appeals for revocation the outlines only specified in ceedings. Significantly, its is one appeal. ten-day can-We administrative initial text: the authority extend the in the code to not find petition filing a for of to the of counsel assistance 45-day limit for time Indeed, the review. certiorari specified in a different statute is certiorari review 893.735(2). § result, a we altogether. As See Stat. Wis. reject petitioners' the Wisconsin assertion grants" "plainly a them Code Administrative review. for certiorari to file turn to 28. We next the petitioners' argument 977.05(6)(h) § that Wis. Stat. provides statutory basis the right to counsel revocation throughout proceed- ings, certiorari review.7 The statute including provides:
(h) public may provide legal The state defender assign parole super- services or counsel in or extended proceedings vision all of the following revocation unless apply: person
1. The or parolee supervision on extended contesting revocation of or parole super- extended vision. department
2. The of seeks to corrections have the parolee on person supervision imprisoned or extended upon parole supervision. revocation or extended 977.05(h).8 § Stat. At oral argument, petition- ers relied this upon statute, conjunction with 7Although rely petitioners principally on Wis. Stat. 977.05(6)(h) statutory they § argument, as the basis for their paragraph reply make reference in one in their brief to Chapter they Specifically, language § cite in Wis. Stat. 227.53 referring party's attorney to "the as "the record" evidence that legislature contemplated attorney's seem[ed] have contin ued involvement are proceedings when administrative reviewed in circuit court." undeveloped light This reference sheds little on Further, probation the issue. note that we subject proceedings provisions are not to the of Chapter Department 227. State ex. rel. Health Hanson and Human (1974). Services, 367, 377, 64 Wis. 2d N.W.2d *12 8 977.05(i) § companion Wisconsin Stat. is the statute for prisoners probation. on It states: public may provide legal assign
The not defender services or probation proceedings counsel in revocation unless all of the following apply: probationer contesting probation. 1. The is the of revocation position Schmelzer, 201 2d at to advance their attorney stages they at the all of are entitled to that including proceedings, review. certiorari attorney Schmelzer, the failed defendant's timely petition of for review of the court to file a affirming appeals' for second- decision his conviction degree whether assault. Id. at 249. issue was sexual statutory preparation counsel in the is a there together, petition for review to this court. Id. Read of a 809.32(4)9 §§ that Stat. we concluded "Wis. 977.05(4)(j)10 petitions for create a to counsel in any provided court, that the and cases before review appeal the to be without counsel does determine phrase petitioners interpret the Id. at 253. The merit." any they to mean that are entitled before court" "cases department probationer of seeks to the 2. The corrections have probation stayed imprisoned upon or sentence the revocation of imposed probationer upon imprisonment will on of he probation. revocation of 809.32(4) (1993-94) (Rule) in provides § Stat. Wisconsin part: appeals fully court and the taken to the If a briefed supreme opinion petition attorney for in the is of the that a any arguable be and without under s. 809.62 would frivolous court attorney merit, reasons for shall advise the defendant opinion has the to file a the defendant
this for review.... (1993-94) part: § 977.05(4)(j) provides Stat. Wisconsin public request any person determined the state [A]t the any court, indigent upon prosecute a referral of to be or defender n writof corpus error, appeal, proceeding or action or habeas remedy post-commitment postconviction on behalf of or other any court, public person determines if the state defender before pursued.... be the case should *13 beyond long to counsel the administrative so as petitions their for certiorari are not frivolous. problem petitioners' ¶ 30. The with the reliance begins statutory authority they on Schmelzer with the above, cite. As noted Schmelzer established a reading together counsel from the of two statutes: Wis. 809.32(4) §§ 977.05(4)(j). petition- Stat. Here, the rely solely § 977.05(6)(h), ers on statute, one to advance argument. § 977.05(4)(j), this Unlike Wis. Stat. 977.05(6)(h) § statutory duty public Stat. is not a for pursue indigent person; defenders to the case of an statutory public rather, it is a restriction on when may provide legal Although defenders not services. we recognize public may permitted that defenders be provide representation when the conditions Wis. 977.05(6)(h) § Stat. met, are we fail to see how the requires examining statute them to do Indeed, so. when providing other statutes for the to counsel, we legislature note that has used affirmative and explicit language.11Accordingly, reject petition- we argument by negative implication language ers' that 977.05(4) § Wisconsin provides Stat. part:
(4) public DUTIES. The state defender shall: (i) legal Provide services in: involving persons charged 1. Cases against with a crime life under
ss. 940.01 to 940.12. involving persons charged felony Cases specified with a under subd. 1. involving persons charged 3. Cases with a misdemeanor punishable by imprisonment specified but is not under subd. 1. involving persons subject emergency Cases detention or involuntary civil commitment under ch. 51. 977.05(6)(h) se to assistance mandates a per §of of an certiorari for filing of counsel *14 appeal. administrative argument sum, petitioners' the although to common may appeal to counsel right the
to extend or au- statutory can find no administrative sense, we in their of counsel to assistance a thority granting policy, It be may good of certiorari. for a writ petition views for the judicial policy substitute but we cannot authority. making or rule legislature of the views policy or are involving are entitled to counsel children who 5. Cases under s. 48.23 or provided the discretion of the court counsel at 938.23. determinations, specified involving paternity under s. as 7. Cases 767.45(l)(g) petitioner or 767.52, under s. the state is the in which by an of the child commenced on behalf the action is
in which 767.045(l)(c). attorney appointed under s. 6(e) (f), any person request (j) Subject of at to sub. indigent upon by public be or defender to the state determined error, appeal, court, action or any prosecute a writ of referral of post- corpus postconviction or or other proceeding for habeas court, any person if remedy before behalf of the commitment on pursued. case should be public determines the state defender any indigent pursue public the case defender must The state 980.03(2)(a). 971.17(7)(b)l, or person to counsel under s. entitled by public state (jm) request of an inmate determined At the upon under s. indigent of a court or referral to be defender proceedings for modifica- 302.113(9g)(j),represent the inmate program 302.113(9g) a before sentence under s. tion of a bifurcated public court, sentencing the state if and the committee pursued. the case should be determines defender (k) public the state of the officeof Represent members of the staff arising from in lawsuits are named as defendants defender who also, may attorney general if within the office. their duties litigation. In represent in such appropriate, such staff members public represented either the be a member could cases where public deter- attorney general, defender shall or the defender represent the member. mine shall who per result, aAs we conclude that there nois se timely counsel to file for certiorari review.
IV Having petitioners ¶ 32. determined that the are per timely entitled to se to counsel to file for inquiry review, certiorari our does not end there. We equity requires granting must next if examine relief. begin by noting
¶ 33. We cases, in some question may factual parolee timely exist as to whether a revoked
asked counsel to file a promised review, certiorari whether so, to do and whether as a result counsel's failure to *15 parolee file, the revoked was denied certiorari review. may require evidentiary hearing by This the circuit court. present hearing case, however, the such a unnecessary. petitioners' attorneys accepted The have
responsibility missing filing for the deadline for the petitions. certiorari Moreover, the State has conceded "[u]nder that, probably circumstances, these Griffin and Glenn
are entitled to reinstatement of the certiorari review of their revocations based on equitable grounds." 45-day filing petition- 35. The time limit for the
ers' certiorari review is set forth in Wis. Stat. § According prisoner's 893.735.12 to the statute, cer-
12 § Wisconsin Stat. provides part: 893.735 seeking remedy "An action available certiorari made on behalf prisoner days of a is barred unless commenced within 45 after the 45-day period begin cause of action accrues. The shall on the date disposition, except may the decision or that the court extend the
252 timely commenced. action is "barred" unless tiorari begins 45-day period § on the date of 893.735. Stat. may disposition. However, Id. the court decision or the adjust limit it of the time so that the commencement prisoner running receives actual until the does start suggests decision. Id. This notice of the administrative legislature recognized, instance, in one at least that the give inequitable to less than the full 45 it would be days provided for in the statute. 893.735(2), § applying Wis. Stat. 36. When recognized equitable appeals consider
court of has also appeals Specifically, court of has tolled the ations. 45-day period prisoner a letter to the when a submitted mailing. prison State ex rel. Shimkus mail custodian App Sondalle, 327, 2d 238, 13-14, 239 Wis. v. WI 45-day period from It tolled the 620 N.W.2d409. has seeking filing prisoner to waive fees date on which a required department of corrections for asks the State ex rel. Walker v. Mc account statement. trust Caughtry, App 110, 16, 244 Wis. 2d 2001 WI 45-day period Moreover, it has tolled the N.W.2d department corrections to it for the while waited litigation provide number of dismiss certification of the prisoner ex rel. Locklear has accumulated. State als the App Schwarz, 74, 26, Wis. 2001 WI N.W.2d30. elapsed by many days prisoner proves
period
have
as
as
disposition
prisoner's
and the
actual notice
the decision or
between
*16
disposition.. .
of the decision or
seeking
person
that a
relief from
previously
have
held
We
by
"prisoner"
of certiorari
is a
who
probation revocation
a writ
§
timely filing requirements of 893.735. See
satisfy the
must
Schwarz,
86,
35,
2d
2000 WI
236 Wis.
ex rel. Cramer v.
State
473,
tolling timely in other contexts where the failure to file beyond appeal prisoners' was the control. See State Litscher, 199, ex rel. Nichols v. 2001 WI 247 Wis. 2d Bradley, 1013, 292; 635 N.W.2d State ex. rel. Brown v. 630, 2003 WI Wis. N.W.2d 427. applied equitable tolling Nichols, this court in a case where an inmate left his notice of with prison, corrections officer the mailroom at the 30-day filing missed the deadline because notice immediately. was not mailed 247 Wis. 2d 4. In granted Brown, we the same relief because we deter- "similarly mined thát the inmate was situated." 259 2d 630, are cases, 38. We mindful that in the above question proper tolling generally factual of the date depart- records, could be resolved the use of court prison ment of records, correction or records. Deter- mining attorney promised whether and when an file petition may prove a certiorari a more difficult task. any why Nevertheless, we are unable discern reason prisoners placed who retain counsel should be at disadvantage simply they because relied on counsel's promise. Accordingly, petitioners we conclude that are equitable they timely entitled to relief when ask counsel promises certiorari, to file for so, counsel to do aas they result of counsel's failure to file were denied petitioners timely certiorari review. Provided that the pursue 45-day filing relief, time limit for of a equitably writ of certiorari is tolled as of the date that promises to file for certiorari review.
V
we consider
is whether
The final question
39.
¶
prospec-
rule we
should receive
adopt today
the tolling
brief,
In its
the State
or retroactive
application.
tive
relief, such a
grants
to the
this court
that
argues
extent
Rather,
it
retroactively.
urges
should not
holding
apply
for which
our
should be limited to cases
holding
available, but also encompass-
certiorari
review is still
agree.
Griffin. We
ing Glenn
should employ
40. The State advances that we
Brown,
2d
used
259 Wis.
analysis
the retroactive
test of Chevron Oil
There,
three-pronged
we
applied
(1971)
Huson,
v.
tolling
to the new
Co.
(3) produce application Will retroactive substantial inequitable results? *18 106). (citing.Chevron, ¶
Id., 404 U.S. at "inquires ¶ 41. The first factor whether the new past precedent rule overruled or decided an issue of impression clearly first whose resolution was not fore- ¶ Id., shadowed." 18. We determine that this factor prospective application our favors as rule does not past precedent, rather an overrule but decides issue was uncertain. whose resolution ¶ 42. The second factor examines whether retro- activity operation or retard the "would further of' holding. prospec- ¶ Id., 21. new rule or This too favors many application. agree in tive We with the State that challenge cases, a to revocation will have moot become period because the of reincarceration has been served. passage likely time, Moreover, due to the it would be fact-specific make difficult for courts to such a determi- nation.
¶ 43. The third factor consideration of involves equities retroactivity." ¶ Id., "the 25. We determine prospective application. Here, also this favors we State, victims, consider the that the interests crime public finality in the of the "Full have decision. application produce inequitable retroactive could re- opens up long sults it cases that have because been thought by everyone, including victims, crime to have Additionally, above, been final." Id. passage as noted due to the may parties difficulty time, have addressing attorney prom- and when an has whether petition. ised to file certiorari agree ¶ end, 44. In the we with the that our State tolling apply retroactively, rule should not but rather "be limited to for which certiorari review is still cases encompassing available, but also Griffin and Glenn." holdings application limited with This consistent our Schmelzer, in Schmelzer and Brown. 201 Wis. 2d at ap- 258-59; Brown, 2d 26. 259 Wis. "Such proach permits pro prisoners some se to benefit from accompanying proof the new rule without difficult problems operation which frustrate the of the rule." Brown, Moreover, such a limited finality reapplication "recognizes the of case and the reopening thought inequities that result from cases long be since closed." Id.
VI although parolees In sum, we conclude that hearing, have a they at statutory right have no administrative or to coun- *19 timely file certiorari in the circuit court. sel to petitioners However, we determine that the here are grounds they equitable entitled to relief on because timely certiorari, asked counsel to file for promised timely so, to do and the failure to file led to petitions. Accordingly, of their we reverse the dismissal dismissing petitions orders for writ of habeas cor- pus, and remand with instructions to allow reinstate- petitioners' right to certiorari review.14 ment of the By orders of the circuit courts are Court.—The reversed and the causes remanded. (concur- ABRAHAMSON, 46. SHIRLEY S. C.J. majority
ring). separately I write not to criticize the case, running of the In Glenn's the court should toll the limit 45-day attorney promised time of the that the to as date review, July petition file the for certiorari 2000. Griffin's case, accept the court filed the it shall as previously rejected for certiorari review. say, point
opinion it rather to out for what does but years, say. in For the second time three what it does addressing majority of this court avoids issue namely, parolee importance, whether a has a counsel, filing when an administrative the assistance Hearings Appeals from a to the Division of parole revocation decision. many important
¶ 47. Because this issue affects again, parties hearings and arise and because the will I conclude that the court should issue, have briefed the exists when address it and hold that a to counsel appeal. filing an administrative
H-< I 48. would address the issue of the to the filing assistance of counsel when an administrative though dispositive. appeal even it is not To determine argued, are raised, whether to address issues that necessary parties briefed but are not to the apply disposition case, of a I the rationale for would addressing the merits of a moot issue. The court should (2) "(1) great public importance; if decide an issue it is of frequently neces- occurs so sary that a definitive decision is (3) guide likely again courts; to arise circuit uncertainty; and a of the court would alleviate decision (4) likely repeated, appellate but evades or will be appellate process cannot be review because completed prac- or even undertaken time have parties."1 tical effect on the *20 in 49. A of factors militate favor number these deciding present parolee in the case whether a has a right filing of counsel when an admin- to assistance
1 5, 7, 300, Morford, State v. 2d 674 2004 WI 268 Wis. N.W.2d
258 appeal parole of a istrative revocation decision. The parole safety implicates decision to revoke of the public procedures great and the fairness of the and is of importance petitioner public. to both the and the Fur- proceedings, thermore, revocation and subse- quent appeals, daily are a administrative matter. petitioners addition, In both and the State thoroughness briefed the issue with sufficient for this agree court to I render decision.2 cannot with the majority opinion question that we should save this for yet day. another
I—I Having ¶ 51. that concluded the court should ad- question dress the of the to file an counsel appeal, answering administrative question. I turn now history litigation A brief of the on this issue is informative. filing
¶ 52. The an adminis- trative was first addressed the court of appeals App in Schwarz, ex rel. v. State Mentek 2000 WI (Mentek I). 96, 143, 235 Wis. 2d 612 N.W.2d748 represented probation case, counsel Mentek at his hearing,3 following revocation decision, but adverse 2 petitioners argued right, relying for this on the dissenting concurring opinions State ex Mentek rel.
Schwarz,
App 96,
143,
2000 WI
235
The State length also at for the to counsel at final hearing. Respondent's Brief at 18-22. See I, Mentek 235 Wis. 2d 4.¶ *21 stating appeal Mentek a wrote letter then filed a for have merit.4 Mentek would no court.5 the circuit of certiorari writ petition, ¶ to dismiss the 53. The State moved arguing failed to exhaust his admin- that Mentek had granted the The circuit court remedies.6 istrative split appeals decision, the court of motion.7 a State's 2.05(3)(f)8 § HA does Admin. Code concluded that Wis. beyond right grant petitioner the a to counsel opinion hearing.9 dissenting probation The providing right as to counsel to the Code construed appeal.10 file an administrative 4 I, 143, 2d 5. Mentek 235 Wis. ¶ 5 I, 143, 2d Mentek 235 Wis. 6.¶ 6 I, 143, 2dWis. 8.¶ Mentek 235 7 I, 143, 2d Mentek 235 Wis. ¶ 8 (3) 2001) (Sept. § Admin. Code HA 2.05 enu Wisconsin as parolee's rights follows: merates (3) rights hearing include: The client's at CLIENT'S RIGHTS. (a) right present; The to be
(b) right deny allegation; The to (c) witnesses; right present The be heard to to (d) evidence; right documentary present The to (e) witnesses; right question The (f) counsel; right The the assistance of hearing; (g) The to waive (h) stating decision the reasons The to receive written presented; upon it the evidence based sub.(8). (i) the decision in accordance with 9 I, 143, Mentek Wis. 2d I, (Brown, EJ., 143, dissenting). Mentek 235 Wis. I, 54. On review of Mentek this court reversed appeals' grounds. on the court of decision narrow State Schwarz, rel. ex Mentek 2001 WI 242 Wis. 2d *22 (Mentek II). addressing 624 150 N.W.2d Instead of counsel, Mentek's claim to this focused court on the whether doctrine of exhaustion of administrative applied remedies should be to Mentek's certiorari act although ion.11 This court held that failed Mentek to remedies, exhaust his administrative the circuit court jurisdiction could still exercise over his for writ of certiorari.12 addressing
¶ I II, 55. concurred in Mentek the right-to-counsel question open by majority left the opinion. doing adopted reasoning Judge so, I of in Brown's dissent Mentek 7.13 Judge
¶ 56. Both and I Brown concluded that the interpretation most reasonable 2.05(3) Admin. Code Wis. 2.05(8)14 § § parolee HA HA and is that a has filing to the assistance counsel in repeat appeal. reasoning I administrative will not our published opinions. here. It is available both 11 II, 94, 242 Mentek Wis. 2d 2.¶ 12 II, 242 Mentek Wis. 2d 17. 13 II, (Abrahamson, C.J., Mentek 19¶ Wis. concurring). (b) 2.05(8)(a) § Wisconsin Admin. HA (Sept. Code and
2001) provide as follows: (8) (a) client, Appeal, attorney, any, The client's if or the department representative may appeal the administrative law judge's by filing appeal arguments decision written with and materials, any, supporting days if with the administrator within judge's of the date of the administrative law written decision. Oí) appellant copy shall submit a of the the other to party days respond. who has 7 my II, I I of Mentek and Mentek On persuaded Judge I I Brown were correct. and am per- report pleased that the is now also am State opinions and has of the correctness these suaded reasoning adopted and conclusions. their analyzing statutes, and After the Code "[a]lthough the ar- concludes that State State's brief gued is no to counsel in Mentek that there respect- filing appeal, the State now an administrative fully position."15The brief from that State's withdraws § together, HA "read Admin. Code asserts that 2.05(3) (8) 977.05(6)(h) (i) § Stat. and Wis. statutory reasonably support proposition that the final assistance of counsel at a to the hearing of counsel for extends the assistance *23 filing appeal."16 an administrative points questions
¶ three The State's brief out recognizes may in if court a arise the future the that statutory right timely an to to file administra- questions appeal a three the tive from revocation. The poses State's are as follows: brief statutory right timely If a to counsel to file an there is revocation, administrative a appeal from is there in right assistance of counsel the companion to effective presentation and arguments support- of the substantive Moreover, ing appeal? materials on administrative always appeal upon file an must counsel administrative if request, the even counsel believes admin- parolee's If the answers are appeal istrative would be meritless? yes, apply, especially of review with what standards at 25. Respondent's Brief 16Id respect question prejudice the from counsel's alleged performance?17 deficient carefully explains, ¶ 60. The State's brief how- foregoing ever, that court this need not now decide the questions present in the in cases. defendants the present according had, brief, cases the State's appeals filed with administrative the assistance of parolee alleging counsel, neither and ineffective as- handling in sistance of counsel the of an administrative appeal.18 agree answering
¶ 61. I with State the that the question right the about to counsel at an administrative appeal produce questions. will doubtless further But experience ignoring question shows that does not ordinarily go away. Delay answering make it in presented II, issue here I and Mentek and Mentek only uncertainty expense means and additional delay for State and defendants. forth, 62. For I reasons set conclude
majority opinion should have reached the issue of parolee whether a has a to the assistance of filing counsel when an administrative of a revo- decision, cation concluded, it have as the should has, State that such a exists. I forth, 63. For reasons set concur. agree (concurring). SYKES, 64. DIANE S. J. I majority's analysis
with the of the counsel in equi- context, this and also its of an with formulation *24 remedy tolling table in the circumstances of cases retroactivity, agree before the I court. On the of issue majority's disagree analysis. with the result its but with 17Id.
18Respondent's Brief at 26.
263 Retroactivity in of a collateral attack the context already judgment governed final is of a habeas (1989), by Teague Lane, 288, 310 v. 489 U.S. and State Murphy, 246, 258-59, 201 2d ex Schmelzer v. Wis. rel. (1996). Bradley, rel. v. 45 See State ex Brown 548 N.W.2d ¶¶ 38-52, 259 658 N.W.2d427 WI 14, (Sykes, dissenting). majority applies the retro- J., analysis activity Huson, Chevron Co. v. 404 U.S. Oil (1971), Supreme 97,106 the United States Court which Virginia Dep't Harper Taxation, in abandoned (1993), any event, in which, does not U.S. govern retroactivity analysis. attack collateral parties Brown, in did not brief Here, as continued reliance on Chevron the issue of Wisconsin's light Harper. reason, Oil in For that and because (retroactivity retroactivity question precise in this case attack) governed the context of habeas collateral by Teague/Schmelzer, here we need not address Harper. It is true whether to conform our law to also Teague/Schmelzer parties retro- that the activity did brief analysis. any majority event, because the Teague/Schmelzer has analy- that a reached the same result yield, respectfully I concur. sis would I Justices E am authorized to state that JON join WILCOX, and PATRICK this concur- N. CROOKS rence.