By ISBA President Henry Hamilton III
2022 is the 50th anniversary of the 1972 United States Supreme Court’s landmark prisoners’ rights case of Morrissey v. Brewer, 408 U.S. 471 (1972). Two Iowa parolees, John Morrissey and Donald Boohar, challenged the Iowa parole board’s revocation of their paroles without a hearing as a denial of their due process rights. There were three Iowa lawyers who played key roles in Morrissey: W. Don Brittin, Jr., Judge Don Lay, and Russell Lovell. The new Chief Justice, Warren Burger, a fellow Midwesterner, and a Minnesota neighbor, wrote the opinion for a unanimous U.S. Supreme Court.
The late W. Don Brittin, Jr., of the Nyemaster Law Firm, was only a few years out of the University of Iowa College of Law when he was appointed by the U.S. Court of Appeals in 1970 to represent parolees Morrissey and Boohar. Brittin had served as a law clerk to U.S. District Judge Roy Stephenson before joining the Nyemaster Law Firm in Des Moines, where he engaged in trial practice. The U.S. District Court had denied the prisoners’ writs of habeas corpus and denied certificates of probable cause to appeal. But the 8th Circuit granted certificates of appeal, appointed Don Brittin as counsel, and set the case for en banc hearing. In setting the case for en banc hearing, the court of appeals gave a signal that this was no ordinary prisoners’ appeal. This article tells the story of the landmark case that went all the way to the United States Supreme Court, and remains the governing law today, some 50 years later.
The late Donald Lay, a Federal Court of Appeals Judge, was a University of Iowa College of Law graduate (Law 1951). By reputation he was considered one of the finest trial lawyers in Omaha, NE, where he practiced for more than a dozen years, before he was appointed at age 39 by President Johnson to serve on the U.S. Court of Appeals for the 8th Circuit in 1966. The 8th Circuit heard the Morrissey case en banc and, in a 4-3 decision, upheld the denial of a hearing. Judge Lay played a key role in that en banc decision.
Drake law professor emeritus Russell Lovell was a 3L student at the University of Nebraska College of Law in 1968. He was among the first scholars to contend that parolees had a conditional liberty interest, and that parole could not be revoked without a due process hearing.(1) Lovell’s efforts had begun with a criminal justice system internship under then-Professor Harvey Perlman(2) and a young Omaha lawyer named Robert Kutak. Lovell drafted legislation to reorganize the department of corrections and create a parole board. When his proposal to provide parole revocation hearings was rejected, Kutak assured him that his argument was sound but, “we should accept the compromise legislation as we will get the hearing reform through litigation.”(3) And, as we shall see, Bob Kutak’s prediction came true.
Following graduation Lovell served as a law clerk to U.S. Court of Appeals Judge Floyd Gibson in Kansas City. When the Morrissey case was set for en banc review, Lovell had hoped he might persuade Judge Gibson with his research. Let’s pick up the case at that point.
Chief Judge Marion Matthes, writing for the majority, first summarized the Iowa Supreme Court precedent, Curtis v. Bennett,4 that held that a parolee had no constitutional right to notice and a hearing before the board could revoke his parole. The Curtis case subsequently came before the 8th Circuit per a petition for habeas corpus, and the 8th Circuit(5) upheld the Iowa procedures based on the right-privilege doctrine: “‘A parole is a matter of grace, not a vested right. A large discretion is left to the States as to the manner and terms upon which paroles may be granted and revoked. Federal due process does not require that a parole revocation be predicated upon notice and opportunity to be heard.’”(6) Judge Matthes recognized that Goldberg v. Kelly(7) had rejected the right-privilege distinction in the context of revocation of a welfare recipient’s benefits, but the court distinguished Goldberg on the grounds that welfare was based on a statutory right, and “the prisoner has no statutory right, even if ‘qualified,’ to be granted conditional liberty or allowed to remain on parole.”(8) Judge Matthes added: “While we recognize the importance which the individual parolee attaches to being allowed to remain outside the prison walls while serving his sentence, we are not constrained to hold that his interest in obtaining a hearing on revocation of that privilege is sufficient to override the interest of the state and the prison authorities in effectively managing internal disciplinary and custodial affairs.”(9)
In his dissent Judge Lay contended that an evidentiary hearing was mandated by the “plain meaning” of the due process clause, which “requires notice of the charges or an opportunity to be heard before the state may deprive the liberty of any person.”(10) He suggested only “provincial and stunted rationalizations” could conclude that a revocation of parole did not work a “deprivation” of the parolee’s liberty interest: “It is true that a parolee lives in society with more restrictions than other citizens, that his is a ‘conditional’ liberty. However, in a sense every person's liberty is conditional on abiding by the rules of law. To reason that a parolee who is returned to the gray perimeter of prison walls is not ‘deprived’ of ‘liberty,’ approaches the realm of judicial sophistry.”(11)
The majority embraced the existing federal court’s “hands off” practice with regard to prisoners’ claims related to any aspect of their confinement. The court held that federal courts should be very deferential to state prison officials, leaving any reform to state legislatures. Judge Lay’s impassioned dissent exhaustively rejected all the state’s arguments, and, for all practical purposes, Judge Lay wrote the parolees’ certiorari petition to the supreme court.
The New York Times quoted one of Judge Lay’s former law clerks as saying that “one of the dissents he was most proud of was in Morrissey v. Brewer.”(12) It should be noted that Judge Gibson’s law clerk was not persuasive; Judge Gibson joined the majority. However, like Don Brittin, Russ Lovell was to get another chance.
After concluding his two-year clerkship, Lovell joined the Legal Services Organization of Indianapolis, and one of his first cases was an appeal to the 7th Circuit on a decision upholding denial of a parole revocation without a hearing. When the U.S. Supreme Court granted review on Morrissey, Lovell obtained the permission of Judge Gibson and co-authored an amicus brief and expedited its filing so that it was the first brief on file. The amicus brief drew heavily upon his Nebraska law review article, whose rationale had been significantly bolstered by the court’s Goldberg v. Kelly(13) welfare rights due process case. Lovell and his co-counsel Harold Berk established a close working relationship with Morrissey’s counsel, Don Brittin, who welcomed their assistance and input when the case was on appeal to the supreme court.
Don Brittin wrote a strong petitioners’ brief. He also accepted Lovell’s and Berk’s offers to travel to Washington, D.C. and conduct a moot court for him on the day prior to the oral argument. Lovell reports that the “robust moot court” principally focused on what they anticipated would be the most difficult questions from the court. The combined effort went well, and, at the end of the day, Brittin had a very good grasp of the issues, the law, the policy, and the record. There was optimism, as they had convinced themselves that the law was moving in their direction. The next day Brittin faced a “hot court,” and he was ready. The moot court preparation paid off when the justices peppered him with questions throughout his entire argument. You can check out Don Brittin’s persuasive oral argument—calm, cool, and collected(14)--as it is freely accessible online. Most court observers believe that the oral argument can be decisive in “close” cases, but, as it turned out, the case wasn’t close.
Chief Justice Burger wrote the opinion for a unanimous court, and quickly cast aside the right-privilege distinction as “unhelpful” and recognized the real human implications when a parole is revoked:
The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.(15)
The court held that termination of the liberty interest of the parole inflicted a “grievous loss” that was within the protections of the Due Process Clause of the Fourteenth Amendment.
The court then determined “what process was due.” The chief justice pointed out that there would typically be a preliminary hearing out in the field. If probable cause were found, that would set the stage for a more formal hearing before the parole board: “At the [preliminary] hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, [a] person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence.”16 The latter confrontation right was qualified and can be denied “if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed. . . .”(17)
The court then summarized “the minimum requirements of due process” for the hearing before the parole board:
They include: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.(18)
It was particularly notable that Chief Justice Warren Burger authored the Morrissey opinion. He was President Nixon’s first appointee to the court and had a solid conservative record. Burger’s biography indicates he grew up of modest means in Minnesota. Unlike all but one member of today’s supreme court, Burger did not attend an elite Ivy League Law School. Chief Justice Burger went to law school part-time at night at William Mitchell College of Law in St. Paul, MN. From his very first days on the court in 1969, Burger had expressed concern about the federal judiciary’s lack of interest in the conditions of confinement experienced by prisoners. The Chief Justice’s speeches indicated that he had taken time to visit many prisons in the United States and some in Europe as well during his years on the Federal Circuit Court of Appeals and his early years as chief justice, and was aware that Europeans took a more rehabilitative approach than the U.S.(19)
Morrissey v. Brewer effectuated a sea of change in federal constitutional law as it recognized that while prisoners’ rights are limited by virtue of their convictions, they are not eliminated. It ended the federal courts’ “hands off” policy and opened the door to transformative prison reform for the next quarter century. Morrissey ushered in an era in which federal courts took seriously such prisoner claims. Under Chief Justice Warren Burger’s leadership, the supreme court fashioned a body of law that significantly reformed the operations of the nation’s penal institutions and made them much more humane. In sum, the Morrissey decision clearly deserves its landmark status. The Morrissey case was pathbreaking not only for prisoners’ rights but was foundational for a body of due process caselaw in general. The supreme court has cited it in 105 other opinions. Although the Rehnquist Court rolled back a number of prisoners’ rights reforms, the Morrissey precedent continues to be the governing law today.
Judge Lay went on to serve on the Court of Appeals on active status for another 30 years, including service as chief judge from 1979 to 1992. He served on senior status until his death in 2007. He was one of the nation’s leading progressive jurists. Senior U.S. District Court Judge Robert Pratt was quoted in The New York Times as praising Judge Lay as “among the last of the unapologetic liberals who believed deeply in the Warren Court revolution and saw the federal courts as the protector of civil and equal rights.”(20)
Brittin and Lovell were young lawyers in 1972, and they had a rare opportunity to appear before the supreme court at such an early point in their careers. Lovell had been out of law school less than three years and, therefore, fell short of the five years of practice that was required to become an official member of the supreme court bar. Brittin satisfied that requirement, but barely, as he graduated only five or six years earlier from the University of Iowa College of Law. Brittin was to engage in a very active litigation practice for another 30 years with the Nyemaster Firm, until his passing in 2002. After practicing civil rights and poverty law for five years in Indianapolis, IN, Lovell joined the Drake Law faculty in 1976. Russ served on the Drake faculty for 38 years, including 10 years as associate dean of the law school. He has been a volunteer lawyer for the NAACP for 48 years and has been widely recognized for his public service and civil rights work. Professor Emeritus Lovell has recently published an article in the Nebraska Law Review that provides an in depth look at the Morrissey decision and the “surprising back story” of his involvement in case.(22)
The views and opinions of the author are his own and should not be interpreted to reflect the views and opinions of any employer past or present.
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1 Russell E. Lovell, II, Revocation of Parole and Probation in Nebraska: A Procedural Antithesis, 48 Neb. L. Rev. 220 (1968). Lovell predicted that the supreme court would embrace this rationale and overturn the body of law that had uniformly held to the contrary. Id. at 230.
2 Perlman would go on to serve as Dean of the College of Law for more than a dozen years and as Chancellor of the University of Nebraska for fifteen years.
3 The compromise legislation, the Omnibus Treatment and Corrections Act, was enacted by the Nebraska Legislature in 1969 without a dissenting vote. Neb. Rev. Stat. §83-170 – 1,135 (Cum. Supp. 2020). That progressive piece of legislation was subsequently found by the U.S. Supreme Court in the following decade to have created state-created liberty interests protected by due process in three separate cases: Wolff v. McDonnell, 418 U.S.539 (1974), Greenholtz v. Inmates of Nebraska Penal Complex, 442 U.S. 1 (1979), and Vitek v. Jones, 445 U.S. 480 (1980).
4 Curtis v. Bennett, 256 Iowa 1164, 131 L.W.2d 1 (1964), cert. denied, 380 U.S. 958 (1965).
5 Curtis v. Bennett, 351 F.2d 931 (8th Cir. 1965). publications/techreport/2021/webmarketing/.
6 Id. at 933 (citation omitted).
7 397 U.S. 254 (1970).
8 351 F.2d at 949.
9 Id. at 949.
10 Id. at 952.
11 Id. at 952.
12 Dennis Hevesi, Donald P. Lay, 80, Federal Judge Notable in Rights Cases, Dies, The New York Times (May 2, 2007) (hereinafter “NYT”). https://www.nytimes.com/2007/05/02/obituaries/02lay.html. Wikipedia also highlighted Judge Lay’s dissent in Morrissey as “one of his most notable rulings.” https://en.wikipedia.org/wiki/Donald_P._Lay.
13 397 U.S. 254 (1970).
14 Oral Argument, Morrissey v. Brewer, 408 U.S. 471 (1972) (No. 71-5103), https://www.oyez.org/cases/1971/71-5103 [https://perma.cc/N67H-39XN].
15 Id. at 482 (footnote omitted).
16 Id.
17 Id. at 487.
18 Id. at 489.
19 See, e.g., Warren Burger, Address to the Association of the Bar of the City of New York (Feb. 17, 1970).
20 NYT, supra note 12.
21 https://www.naacpdesmoines.org/post/meeting-at-the-monument-a-celebration-of-diversity-within-the-iowa-legal-community. The Chester Cole Public Service Scholars
22 Russell E. Lovell, II, In Celebration of Morrissey v. Brewer at Fifty: A Surprising University of Nebraska College of Law Back Story to the Prisoners’ Rights Due Process Landmark, 100 Neb. L. Rev. 905 (2022). https://digitalcommons.unl.edu/nlr/vol100/iss4/6/.
