Leonard W. Ferguson v. John S. Gathright, Superintendent Bland Correctional Farm

BUTZNER, Circuit Judge

(dissenting) :

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held that, absent a valid waiver, no person could be imprisoned for any offense unless he was represented by counsel at his trial. Specially concurring, Mr. Justice Powell urged that the right to counsel at trials for petty offenses should be determined on a case by case basis. As an example of the serious consequences arising out of the deprivation of property rights *509and interests when no jail sentence is involved, he wrote, “Losing one’s driver’s license is more serious for some individuals than a brief stay in jail.” 407 U.S. at 48, 92 S.Ct. at 2018. The majority found it unnecessary to consider, on the record of that case, the situation to which Mr. Justice Powell had adverted. 407 U.S. at 37, 92 S.Ct. 2006. The problem, recognized but undecided in Argersinger, confronts us now.

Ferguson’s operator’s license was revoked for ten years at a hearing where he was not represented by counsel. While the Virginia act authorizing the revocation of a license speaks in terms of denying the privilege of operating a car, Va.Code Ann. § 46.1-387.1 (1968), it is now settled that the privilege to drive cannot be withdrawn without the procedural due process required by the fourteenth amendment. Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Bell, however, does not supply a simplistic answer to the issue before us because due process does not always include the right to counsel.

Ferguson insists upon an unqualified right to representation at a revocation hearing; the state denies the existence of such a right altogether. Shunning both absolutes, I would adopt for revocation hearings the intermediate approach suggested by Mr. Justice Powell in Argersinger for petty offenses. I would not at this time, in the light of our present experience regarding license revocation proceedings, formulate a per se rule for the right to counsel at the revocation hearing. Frequently, the issues at this hearing will be very simple. The identity of the driver whose license is to be revoked is not questioned, and the fact that he has been convicted of specific previous offenses stands admitted. There is little to be done save a ministerial application of the statute. In these circumstances, the absence of counsel is not likely to cause prejudice.

On the other hand, I do not favor a per se rule against - the right to counsel. Without going into detail, it is apparent that some of the issues in a revocation proceeding may present complex legal and factual questions. See Note, The Virginia Habitual Offender Act, 26 Washington and Lee L.Rev. 271 (1969). To identify and present these issues effectively, either initially or on appeal, the assistance of counsel is necessary. In those exceptional circumstances when the fairness of the revocation proceeding will be impaired by the absence of counsel, I would hold that a person is entitled to representation unless he validly waives this right. Cf. Bearden v. South Carolina, 443 F.2d 1090, 1094 (4th Cir. 1971), cert. dismissed, 405 U.S. 972, 92 S.Ct. 1199, 31 L.Ed.2d 256 (1972); Jones v. Rivers, 338 F.2d 862, 879 (4th Cir. 1964) (Haynsworth, J., concurring specially).

Ferguson was convicted of driving after his license had been revoked, and he was sentenced to three years in prison. Although he was represented at that trial, his counsel could not question the issues determined at his uncounseled revocation hearing. Therefore, I would hold that — absent a valid waiver — a person cannot be constitutionally imprisoned when an essential element of his crime was conclusively adjudicated in a license revocation proceeding where he was prejudiced by the lack of counsel. Cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Accordingly, I would remand the case to the district court with directions that it ascertain (1) whether Ferguson validly waived counsel at the revocation hearing, and (2) if not, whether he was prejudiced by the absence of counsel. If he is able to establish prejudice, the writ of habeas corpus should issue, and he should be discharged from custody. The order, however, should be stayed for a reasonable time to allow the state, if it be so advised, to retry him in a proceeding where he can collaterally challenge the revocation of his license. If he was not prejudiced, his petition should be denied.