The Colorado Supreme Court ruled last month that criminal defendants whose parole is revoked must appeal the decision internally to the state’s parole board before seeking review by a judge.

The process for returning someone to incarceration for violating the conditions of their parole first entails a hearing by one member of the Colorado State Board of Parole. Afterward, the defendant “may appeal” the decision to two other members of the parole board. Separately, defendants can file a petition for postconviction relief in the courts based on “unlawful revocation of parole.”

But if a defendant “may appeal” with the parole board and chooses not to, can he seek judicial review directly?

By 5-1, the Supreme Court answered in the negative.

Lawmakers “intended to provide the option to appeal the Board’s revocation decision — but that, if pursued, the appeal must be to the Board’s appellate body,” wrote Chief Justice Monica M. Márquez in the May 26 opinion.

In 2024, a divided three-judge panel of the Court of Appeals ruled for the first time that judges may hear challenges to parole revocations without the defendant needing to go through a parole board appeal. The majority concluded that the law did not require one.

Judge Grant T. Sullivan dissented, worrying that the ability of defendants to “leapfrog” a parole board appeal would result in negative consequences.

“For example, allowing parolees to bypass the appellate body’s review will deprive the Board of its ability to correct errors committed by the single Board member who presided over the initial revocation hearing, potentially leading to even more protracted litigation that could have been avoided,” he wrote.

Sullivan added that the requirement in other contexts for a person to go through an executive agency’s internal grievance process, known as “exhaustion,” is intended to promote efficiency, allow subject matter experts to weigh in first, and conserve judicial resources.

The Colorado Attorney General’s Office appealed, arguing that it is a defendant’s choice whether to accept the revocation or challenge it. However, that challenge must first go through the parole board.

By going straight to the courts, defendant Shams Abdul-Rahman “had to wait for three years now to get the decision,” said Assistant Attorney General Fellow Leo T. Nguyen during oral arguments. “The appellate body process would have afforded him potentially quicker relief.”

Abdul-Rahman’s lawyer argued that requiring an extra step for parolees may cause them to miss the opportunity to seek judicial review forever.

The Supreme Court’s majority agreed with the state. Márquez wrote that requiring an internal appeal falls “squarely within” Colorado’s longstanding practice of allowing agencies to correct their own mistakes and apply their expertise prior to judicial review.

“Furthermore, requiring a parolee to appeal first to the Board’s appellate body provides the parolee with more process in an expedited time frame and helps to ensure that the factual record will benefit a court if judicial review is sought,” she continued. “Unlike the uncertain timeline for postconviction review, which may take years (as was true in the present case), the Board’s appellate body must render its decision within twenty-five working days after a parolee files an appeal.”

Justice Richard L. Gabriel dissented. He suggested that he had not voted for the Supreme Court to hear the case to begin with.

Noting that the government had not called into question the courts’ jurisdiction to hear Abdul-Rahman’s petition until it reached the Court of Appeals, Gabriel believed the state had relinquished the argument it was now making. Further, he observed, the Court of Appeals ultimately sided with the state in finding Abdul-Rahman’s petition meritless.

“I am unaware of any other case in which we have granted (review) to rule that a party should have won on a different basis below, and I would not now set a precedent encouraging parties to seek (review) if they prefer to have won on different grounds,” Gabriel wrote. “Therefore, and as a matter of judicial restraint, I would have deferred consideration of the exhaustion of administrative remedies issue to a case in which it was properly and necessarily before us.”

Justice Maria E. Berkenkotter did not participate in the case. As is the Supreme Court’s practice, there was no explanation provided for her recusal. However, the docket in Abdul-Rahman’s underlying criminal case showed that Berkenkotter presided over his jury trial in her prior role as a district judge.

The case is People v. Abdul-Rahman.