specially concurring.
I completely concur with the majority and additionally write to recognize the fundamental principle that access to judicial review upon parole revocation — like probation termination — is constitutionally required.
Intrinsic to any constitutional review for parole revocation is a first responsibility to apply the foundational decisions of the United States Supreme Court interpreting the federal constitution. Wyoming judicial obligation then requires this court to accord legal attention to the structure of this state by application of judicial review under the Wyoming Constitution. In both analy-ses, effectuation of judicial review of parole revocation achieves a definitive constitutional dimension under the Wyoming *1141Constitution as well as under our nation’s constitution.
Both the similarity of parole and probation revocation and the attendant due process constitutional implementation were decisively and dispositively determined in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The third United States Supreme Court case cited by appellant, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), provides additional strength to a constitutional due process involvement in processes and procedures which follow criminal conviction.
On the particular subject now addressed, some right to judicial review is self-evident since it generally occurs. Technically, due process cannot be a reality and justice cannot be enforced unless the firm and unswerving hand of judicial review is available. Otherwise, within a federalized system of dual judicial systems, the “due” part is left in state hands and the “process” is encumbered by federal adjudication. Wyo.Const, art. 1, § 6 does not either limit or permit a division of that unalienable right into an unenforced assertion.
Unquestionably, due process, upon either parole or probation revocation, is a constitutional interest guaranteed by the United States Constitution and enforced upon state processes by the Fourteenth Amendment. It is hard to believe that anyone— no matter how federalistic-directed or authoritarian-inclined to reject due process, described to be coddling criminals — could misunderstand.
[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a “right” or a “privilege.” By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.
Morrissey, 408 U.S. at 482, 92 S.Ct. at 2601.
Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.
Scarpelli, 411 U.S. at 782, 93 S.Ct. at 1759 (footnote omitted). In footnote, the author of the opinion added:
Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole.
It is clear at least after Morrissey v. Brewer, 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484] (1972), that a probationer can no longer be denied due process
Scarpelli, 411 U.S. at 782 nn. 3 and 4, 93 S.Ct. at 1759-60 nn. 3 and 4.
Justice White adds in substantive thought in addressing the even broader subject of due process following conviction:
Petitioners assert that the procedure for disciplining prison inmates for serious misconduct is a matter of policy raising no constitutional issue. If the position implies that prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a “retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 [68 S.Ct. 1049, 1060, 92 L.Ed. 1356] (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this coun*1142try. Prisoners have been held to enjoy substantial religious freedom under the First and Fourteenth Amendments. * * * They retain right of access to the courts. * * * Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race. * * * Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law.
McDonnell, 418 U.S. at 555-56, 94 S.Ct. at 2974-75.
The more efficacious yet righteously pervasive concern is availability for judicial review and appeal under the protective umbrella of the Wyoming Constitution from adverse decision, when liberty interests within criminal processes are affected. This is the dual subject of constitutional right of review and of appeal within the Wyoming Constitution. The long discarded historical notion that appeals are available only by legislative grace and not constitutional understanding has consistently been rejected by the most thoughtful scholars of the law today and, certainly, consistently by this writer. Roach v. State, 801 P.2d 1037 (Wyo.1990); Swazo v. State, 800 P.2d 1152 (Wyo.1990); Stogner v. State, 792 P.2d 1358, 1368 (Wyo.1990), Urbigkit, J., specially concurring; Smizer v. State, 763 P.2d 1254 (Wyo.1988). See also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Although once opined as not necessarily constitutional, every state now has an appeal process from a criminal conviction and that opportunity has been intrinsic in Wyoming law since the earliest stages of territorial government. See 1876 Compiled Laws of Wyoming ch. 14, Code of Criminal Procedure, at 138 (approved December 10, 1869).
This present case reaches appeal by automatic review since no judicial review was provided by the district court from the action of the parole board. Undoubtedly, any decision of the district court acting as the initial tribunal of decision is subject to the appellate jurisdiction of Wyo.Const. art. 5.
How judicial power vested.
The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time.
Wyo.Const. art. 5, § 1.
Supreme court generally; appellate jurisdiction.
The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes * * *.
Wyo.Const. art. 5, § 2.
Supreme court generally; original jurisdiction.
The supreme court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certio-rari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of a person held in actual custody, and may make such writs returnable before himself or before the supreme court, or before any district court of the state or any judge thereof.
Wyo.Const. art. 5, § 3.
This court then, in contemplation of this judicial review, is required to enforce its responsibilities provided in Wyo. Const, art. ¾ § 1:
Powers of government divided into three departments.
The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of *1143the others, except as in this constitution expressly directed or permitted.
The framers of the Wyoming Constitution, in seeking to protect the state’s citizens consistently and insistently, then included the state’s Bill of Rights:
Due process of law.
No person shall be deprived of life, liberty or property without due process of law.
Wyo.Const. art. 1, § 6.
Courts open to all; suits against state.
All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.
Wyo.Const. art. 1, § 8.
Habeas corpus.
The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion the public safety may require it.
Wyo.Const. art. 1, § 17.
Furthermore, maybe sometimes — sometimes maybe — exceptions written into these definitive Wyoming constitutional standards would, for example, justify review on appeal in a civil case and deny similar access within the Wyoming criminal justice structure. That conclusion does not seem to me to be acceptable and, certainly, would not provide either equal protection or due process to the criminally charged defendant. Riggins v. Nevada, — U.S. -, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942).
This court, although the important review issue is totally now of first decision, has in the past recognized due process in probation and parole decisions and processes. Pena v. State, 792 P.2d 1352 (Wyo.1990); Mason v. State, 631 P.2d 1051 (Wyo.1981). The identical due process concerns exist for both probation and parole which otherwise could, of course, raise the equal protection inquiry of Wyo.Const. art. 1, § 2; art, 1, § 7; and art. 1, § 34. This consideration is significant since a right to judicial review and subsequent appeal is ingrained and enforced within the probation revocation process as defined in present text by W.R.Cr.P. 39. Accord Wlodarczyk v. State, — P.2d-(Wyo.1992) (No. 91-20, decided 6/24/92); Swackhammer v. State, 808 P.2d 219 (Wyo.1991); Ketcham v. State, 618 P.2d 1356 (Wyo.1980); Weisser v. State, 600 P.2d 1320 (Wyo.1979); and Knobel v. State, 576 P.2d 941 (Wyo.1978).
The right of judicial review is, of course, clearly provided in the federal criminal justice system. Whitehead v. United States Parole Com’n, 755 F.2d 1536 (11th Cir. 1985); Santillanes v. United States Parole Com’n, 754 F.2d 887 (10th Cir.1985); Taylor v. United States Parole Com’n, 734 F.2d 1152 (6th Cir.1984); Nunez-Guardado v. Hadden, 722 F.2d 618 (10th Cir. 1983).
Generally recognizing the due process essential in revocation cases, a broad array of authorities from the state court systems are similarly informative. One of the more explicit cases provided by the Florida Supreme Court is Roberson v. Florida Parole & Probation Com’n, 444 So.2d 917, 920-21 (Fla.1983) (emphasis added):
We agree with the district court’s analysis of the application of the review power to agency action, and its entire interpretation of parties and proceedings subject to review. We adopt in full its logical rationale [Daniels [v. Florida Parole & Probation Com’n], 401 So.2d [1351] at 1352-57 [ (Fla.1981) ]).
Looking beyond our own jurisdiction, we find that appellate review of parole decisions is nothing new or radical. See Foggy v. Arizona Board of Pardons & Paroles, 108 Ariz. 470, 501 P.2d 942 (1972); Willard v. Ferguson, 358 S.W.2d 516 (Ky.1962); Mastriana v. New Jersey Parole Board, 95 N.J.Super. 351, 231 A.2d 236 (1967).
We return to the wisdom of Moore [v. Florida Parole & Probation Com’n, 289 *1144So.2d 719 (Fla.), cert. denied 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974) ] wherein we said, “[w]hile there is no absolute right to parole, there is a right to a proper consideration for parole,” 289 So.2d at 720, because:
“[a] prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime. No iron curtain is drawn between the Constitution and the inmates of prisons in this country. Consideration for parole is an aspect of liberty to which at least minimal due process must extend.... It has been said, government action must not only be fair, it must appear to be fair. We agree that, ‘one of the best procedural protections against arbitrary exercise of discretionary power lies in the requirement of findings and reasons that appear to reviewing judges to be rational.’ ”
Phillips v. Williams, 583 P.2d 488, 490 (Okl.1978), vacated 442 U.S. 926, 99 S.Ct. 2853, 61 L.Ed.2d 294 (1979) (quoting Monks v. New Jersey State Parole Board, 58 N.J. 238, 245, 277 A.2d 193, 196 (1971)) (footnotes omitted) (original emphasis deleted; emphasis supplied). The only way to assure a proper respect for the rights of prisoners is to insure judicial review. See, e.g., Oishi v. Florida Parole and Probation Commission, 418 So.2d 329 (Fla. 1st DCA1982).
There should be no room for a “shadow government” in a government in the sunshine.
The Pennsylvania Supreme Court recognized the constitutionally guaranteed appeal from the action (of the Board of Probation and Parole) in Bronson v. Com. Bd. of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981). The differential between parole release and parole revocation in application of due process was recognized by the Indiana Supreme Court in Murphy v. Indiana Parole Bd., 272 Ind. 200, 397 N.E.2d 259 (1979). The Indiana court explicitly distinguished Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) from Mor-rissey, 408 U.S. 471, 92 S.Ct. at 2595. Cases similarly recognizing the right for judicial review of the revocation of parole are People v. White, 804 P.2d 247 (Colo. App.1990); Turman v. Buckallew, 784 P.2d 774 (Colo.1989); In re Question Concerning State Judicial Review of Parole Denial, 199 Colo. 463, 610 P.2d 1340 (1980); and Harris v. Board of Parole, 288 Or. 495, 605 P.2d 1181 (1980).
A considerable list of law journal articles relating to the subject as well as a very extended, for 1974, comment is found in Donald T. Kramer, Annotation, Comment Note. — Procedural Requirements, Under the Federal Constitution, Applicable to Revocation of Probation or Parole, 36 L.Ed.2d 1077 (1974). Similarly, see Wade R. Habeeb, Annotation, Right to Assistance of Counsel at Proceedings to Revoke Probation, 44 A.L.R.3d 306 (1972).
Judicial review of decisions of a parole board can be found in a wide array of cases. A reasonably recent sample would include: Avery v. State, 616 P.2d 872, 874 (Alaska 1980) (recognizing there is no difference between parole and probation revocation as regard to due process requirements); Broadhead v. Arizona Bd. of Pardons and Paroles, 151 Ariz. 37, 725 P.2d 744 (1986), superseded on a separate issue sub nom. Kelley v. Arizona Dept. of Corrections, 154 Ariz. 476, 744 P.2d 3 (1987); Mellinger v. Idaho Dept. of Corrections, 114 Idaho 494, 757 P.2d 1213 (1988); Parker v. State, 247 Kan. 214, 795 P.2d 68 (1990); Owens v. Risley, 217 Mont. 35, 702 P.2d 1 (1985); and Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 470 N.Y.S.2d 130, 458 N.E.2d 371 (1983).
It is apparent that the normal course of review from decisions of the parole board in some jurisdictions is accomplished by the writ of habeas corpus. Broadhead, 725 P.2d 744 and Risley, 702 P.2d 1 serve as examples for this method of review. See also State ex rel. Neal v. Karl, 627 S.W.2d 913, 915 (Mo.App.1982), which recognized the grant of “the writ of habeas corpus because the mandated due process requirements for parole revocation proceedings had not been met.” Cases with a due *1145process examination would include: Reiter v. Camp, 518 S.W.2d 82 (Mo.App.1974) and Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974). “[A] revocation of probation represents a 'grievous loss’ and deprivation of liberty, substantial procedural safeguards must be measured by those protections vouchsafed by the Fourteenth Amendment.” Reiter, 518 S.W.2d at 87.
In concurring with the majority opinion, I also premise the decision on the constitutional right of judicial review required to secure enforcement of the due process interest guaranteed to each individual in Wyoming by Wyo.Const. art. 1, § 6.