The opinion
PETERS, J.
I dissent. I think a parolee is entitled to the protection of Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ], and that a parolee possesses the constitutional right to counsel at a revocation hearing (Mempa v. Rhay, 389 U.S. 128 [ 19 L.Ed.2d 336 , 88 S.Ct. 254 ]). The reasons for my conclusion that parolees are entitled to the Miranda protections are fully set forth in my dissenting opinion in In re Martinez (1970) 1 Cal.3d 641, 652-657 [ 83 Cal.Rptr. 382 , 463 P.2d 734 ], and need not be restated here.
On the issue of the right to counsel at parole revocation, I join in Justice Tobriner’s scholarly and well reasoned dissent.
*209 A parole revocation constitutes a denial of freedom in its most fundamental sense. It little matters to the parolee how we characterize or label the process by which his life is so greatly altered and his freedom so radically curtailed. For him, the interest at stake and the effect on his life is the same. He faces the exchange of job, home, and normal family life for the four walls of a penal institution. Few proceedings could have a greater impact on his legal rights. The procedural safeguards afforded him must, under the due process clause, reflect this inescapable fact.
So great a curtailment of freedom cannot be swept aside on the theory that the prisoner, while on parole, is subject to restraints and thus has no freedom to lose. Although in the search for simplicity and order there is room in the law for some fictions, this fiction is so divorced from reality that it cannot be tolerated by any fair-minded man.
Nor can the fundamental denial of freedom be ignored on the theory that parole is a matter of grace. Grace, however desirable in absolute monarchs and omnipotent deities, is singularly inappropriate to a system of government ruled by laws. The discretion reposed in officials should be upheld only so long as it is not arbitrarily exercised, and the procedural safeguards against arbitrary exercise of power should be commensurate to the importance and seriousness of the individual rights at stake.
The administrative character of the proceedings likewise furnishes no basis for the denial of due process rights. I cannot believe that the majority is willing to hold that there is no constitutional right to counsel or other due process rights in administrative proceedings such as those before the Public Utilities Commission, taxing agencies, or licensing authorities. To recognize the constitutional right to due process in such proceedings but to deny it in parole revocation proceedings is to lose sight of the fact that the Fourteenth Amendment by its express terms applies to deprivations of liberty as well as property.
Accordingly, I cannot accept the reasoning of the majority opinion and the older cases that the fundamental denial of freedom inherent in parole revocation may be ignored on the basis of a fiction that a parolee has no freedom to lose, on the basis of an archaic and foreign concept of grace, or on the basis of a false assertion rejecting the right to counsel in administrative proceedings.
Although I agree with Justice Mosk that cost is a factor to be considered in seeking a rational answer to the problems confronting us, I cannot agree with his assessment that formal hearings with counsel for the approximately 4,000 parolee suspensions, in his colorful language, “would alone require an undertaking of heroic proportions.” Although *210 the 4,000 figure seems a formidable one at first glance, the burden of undertaking to permit or provide for counsel in 4,000 cases is not great when viewed in the perspective of the great size of our state and the experience of our court system. For example, during the fiscal year of 1968-1969, there were over 220,000 dispositions by municipal courts of misdemeanors other than traffic and intoxication cases, and the municipal courts in Fresno alone disposed of more than 4,000 such misdemeanors. (1971 Judicial Council Report, pp. 189-190.) There were six municipal judges that year in Fresno (id., p. 208), who, of course, were required to deal not only with these misdemeanors but also civil cases, preliminary hearings in felony cases, traffic and intoxication offenses, and numerous other matters. I am informed that during this period there were ordinarily three public defenders in Fresno dealing with all misdemeanors, including traffic and intoxication. The time, effort, and skill of counsel and the judge in sentencing proceedings are not dissimilar from the time, effort, and skill required in parole revocation proceedings, and this experience indicates that providing a reasonable right to be heard with counsel does not involve an overwhelming or even great burden. Moreover, California courts have long permitted appearance with counsel in probation revocation proceedings, and, although such proceedings occur with substantial frequency throughout our state, I am unaware of any claim that recognition of the right to counsel in them has placed a burden of “heroic proportions” upon the bench and bar.
In my view, hearings with counsel would not impose a great burden on the state, and any burden is more than offset when it is remembered that the fundamental right to liberty is at stake. Justice Tobriner has pointed out that the federal government and a number of states, including large ones like Pennsylvania and New York, have accorded the right to counsel in parole revocation proceedings and that due process safeguards do not involve an undue burden on the state.
I would issue the writ.