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Bolyard v. Berman

Decided: July 6, 1994.

IRA BOLYARD, TIMOTHY COLEMAN, WILLIAM FRANK, EDWARD MITCHELL AND JAMES QUARLES AND NEW JERSEY ASSOCIATION ON CORRECTION, PLAINTIFFS-APPELLANTS-CROSS-RESPONDENTS,
v.
DOUGLAS BERMAN, TREASURER, STATE OF NEW JERSEY; NEW JERSEY STATE PAROLE BOARD AND JAMES FLORIO, GOVERNOR OF NEW JERSEY, DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS, AND DEPARTMENT OF THE PUBLIC ADVOCATE, OFFICE OF THE PUBLIC DEFENDER; GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY AND SENATE OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Before Judges Michels, Skillman and Wefing.

Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Plaintiffs seek by this appeal to establish that indigent parolees charged with violations of parole have a right to counsel under either the New Jersey Constitution or state common law which is broader than that guaranteed by the United States Constitution as interpreted by the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Plaintiffs also seek to establish that the State cannot satisfy its obligation of providing counsel to indigents in parole revocation proceedings by the assignment of members of the private bar, but must instead appropriate sufficient funds to the Public Defender's Office to perform this responsibility.

When their complaint was filed, plaintiffs Bolyard, Coleman, Frank, Mitchell and Quarles were indigent parolees who had been charged with violations of parole but who had not been assigned counsel due to the Legislature's failure to fund the Parole Revocation Unit of the Public Defender's Office for the 1991-92 fiscal year. Plaintiff New Jersey Association on Correction, which subsequently joined in this action, describes itself as "an organization of citizens working together for an effective criminal Justice system" which provides various services to offenders and victims, including "resource centers for parole and probation purposes." See New Jersey Ass'n on Correction v. Lan, 80 N.J. 199, 204, 403 A.2d 437 (1979). Defendant New Jersey State Parole Board has the statutory responsibility to administer the State's parole system, see N.J.S.A. 30:4-123.48, which includes the conduct of parole revocation proceedings. See N.J.S.A. 30:4-123.62 to - 123.63. Defendant Office of the Public Defender (the Public Defender) has the statutory responsibility to provide legal representation to indigents charged with criminal offenses, N.J.S.A. 2A:158A-5, as well as to represent indigent parolees charged with violations of parole. N.J.S.A. 2A:158A-5.1. The other defendants are all state officials who are responsible for the formulation and enactment of the Annual Appropriations Act under which appropriations are made to all state agencies, including the Public Defender.

In June 1991, the Legislature passed and the Governor signed into law the Annual Appropriations Act for 1991, L. 1991, c. 185, which contained a provision withholding any appropriation to the Public Defender for the purpose of providing legal representation to indigent persons appearing before the Parole Board:

Notwithstanding any provision of section 2 of P.L. 1974, c.33 [N.J.S.A. 2A:158A-5.1], or any other provision of law, or any other provision of this appropriations act, no State funds are appropriated to fund the expenses associated with the legal representation of persons before the State Parole Board or the Parole Bureau.

[L. 1991, c. 1985, 1991 N.J. Laws 1017, 1083.]*fn1

Around the same time, the then Public Defender announced that his office would no longer be able to provide representation to parolees charged with violations of parole due to the Legislature's withholding of appropriations for this purpose.

Plaintiffs then commenced this action, asserting that there is a right guaranteed under both the United States Constitution and the New Jersey Constitution, as well as under other provisions of state law, to counsel in parole revocation proceedings, and seeking to compel defendants to continue the funding required to enable the Public Defender to provide such representation. The matter was brought before the trial court on October 16, 1991, pursuant to an order to show cause and defendants' motions to dismiss. The trial court recognized that some indigent parolees charged with violations of parole are entitled to counsel under the United States Constitution as interpreted by the Supreme Court in Gagnon. However, the court concluded that there is no basis under the New Jersey Constitution or other provision of state law for the recognition of a more expansive right to counsel than is guaranteed by Gagnon. The court also concluded that there is no basis for requiring the Legislature to continue funding the Parole Revocation Unit in the Public Defender's office. The court further recognized that neither the Parole Board nor any other state agency had established a system to provide indigents the representation guaranteed by Gagnon after the Public Defender announced that he would be unable to continue providing legal representation in parole revocation proceedings. Accordingly, the trial court entered an order on October 28, 1991, directing the parties to conduct discovery for the purpose of providing information "to assist the Court in fashioning a ruling in accord with Gagnon v. Scarpelli."*fn2

Thereafter, the Parole Board, with the assistance of plaintiffs, the Public Defender's Office and the Administrative Office of the Courts (AOC), undertook to develop a system for providing counsel to indigent parolees entitled to representation under the standards set forth in Gagnon. However, after six months elapsed without the Parole Board adopting such a system, plaintiffs filed a motion in April of 1992 which, among other things, asked the trial court to set a schedule for the Parole Board "to propose a remedy to screen citizens and to provide counsel to citizens who require counsel at parole revocation hearings." The court granted plaintiffs' motion and entered an order on May 28, 1992, which directed defendants to present a proposal by July 2, 1992 for "a remedy to ensure that counsel is provided for citizens whose parole may be revoked, under the criteria set forth in Gagnon v. Scarpelli. "

The Parole Board submitted a proposal to the trial court in conformity with this order on July 2, 1992. Shortly thereafter, plaintiffs filed a motion seeking modifications of this proposal. In addition, the AOC and the Office of Public Defender submitted comments.

After the trial court adjourned consideration of plaintiffs' motion on several occasions, apparently for the purpose of obtaining further comments from the AOC regarding its role in the implementation of the Parole Board's proposal, plaintiffs filed a motion seeking to enjoin the Parole Board from detaining any person on an alleged parole violation or from revoking any person's parole until it implemented a system for providing counsel for indigent parolees in conformity with Gagnon. The court denied the requested injunctive relief, but entered an order on December 3, 1992, which approved the Parole ...


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