Civil Right to Counsel

Franco-Gonzalez v. Holder

The Northwest Justice Project and various other organizations have filed a class action lawsuit against the United States arguing that, among other things, that the United States has an obligation to provide appointed counsel for mentally disabled detainees in immigration proceedings under the Immigration and Nationality Act (INA), the Fifth Amendment, and the Rehabilitation Act.

Leone v. Owen

The Ohio Court of Appeals, 6th District, found a due process right to appointed counsel for respondent juveniles in civil protection order proceedings. The court first noted that being subjected to a civil protection order is not a criminal

offense, and so there is ordinarily no due process protection, but that certain civil proceedings, including civil contempt, do create a right to counsel in Ohio. The court noted that "in all other cases dealing with children as parties, due process demands appointed counsel or a guardian to represent a minor child: ...." Thus, iit was aberrant to deny juveniles appointed counsel in civil protection hearings that "may lead to criminal sanctions." The court also concluded that the juvenile had not waived his right to counsel, and that "[a]ppellant's young age alone would indicate that he should have been appointed counsel." 2010 WL 1730146 (Ohio App. 2010).

In re I.B.

The Indiana Supreme Court has

granted review in In re I.B. to determine whether parents in termination of parental rights cases have a right to counsel on appeal. The statute granting parents a right to counsel during the trial is ambiguous as to whether that right extends to the appeal, and the petitioner is pressing both statutory and constitutional grounds. Oral argument is scheduled to happen in mid June.

In re D.R./A.R.

The Washington Supreme Court recently granted review in In Re D.R./A.R., a case questioning whether children in Washington dependency cases have a right to counsel. The Court of Appeals refused to hear the question on mootness/jurisdictional grounds (since the state conceded that the

particular mother in the case should have been appointed counsel as a discretionary matter).

Bellevue School District v. E.S.

The Washington Supreme Court heard oral argument on Jan. 19, 2010, on whether a child has a right to counsel at an initial truancy hearing. Almost exactly one year earlier, on Jan. 12, 2009, an appellate court found that due process required appointment of counsel for a 13-year-old accompanied at the hearing only by her mother, who spoke little English. (Click here for the court of appeals opinion.)

Several advocacy organizations appeared as amici in the Supreme Court. They were TeamChild and the Committee for Indigent

Representation and Civil Legal Equality (CIRCLE) in Washington (click here for brief), the Juvenile Law Center in Philadelphia (clickhere for brief), and the ACLU of Washington (click here for brief).

Under state law, a finding of truancy could lead to a finding of contempt, sanctions for which could include incarceration.In its ruling the appellate court relied heavily on the lesser capacity of children than of adults to understand legal proceedings and to advocate their own interests.

Rhine v. Deaton

The U.S. Supreme Court denied a petition for certiorari in this termination of parental rights case from Texas in which the mother was denied appointed counsel in the trial

court. She claimed denial of equal protection and that the trial court failed to engage in a Lassiter due process analysis. The Texas Supreme Court denied review, and after asking the Texas Solicitor General to file a response brief, the U.S. Supreme Court denied review as well.

Office of Public Advocacy v. Alaska Court System

The Alaska Supreme Court declined to rule in this case, dismissing an appeal that arose from a custody case involving an unrepresented mother's request for appointment of counsel when her opponent was represented by a private agency. An indigent party in Alaska has a statutory right to counsel when the opponent is represented by a public agency.

The American Bar Association filed an amicus brief with the supreme court in support of the mother's right to counsel; other amicus brief were those from retired Alaska judges and from legal services providers.

Originally the Alaska Court System was directed to appoint counsel to

represent the mother, with the court citing the due process and equal protection clauses of Alaska's Constitution. The trial court later changed its ruling to appoint the Alaska Office of Public Advocacy to represent the mother, citing statutory and equal protection grounds. The Office of Public Advocacy appealed, and after oral argument the supreme court requested briefing on mootness. The positive trial court ruling stands, although it lacks precedential value.

Other Civil Right to Counsel Rulings:

King v. King, --- P.3d ----, 2007 WL 4259926

Kenny A. ex rel Winn v. Sonny Perdue, 356 F.Supp. 1353 (N.D. Ga 2005)

In re Adoption of L.T.M., 214 Ill.2d 60 (2005)

Halls v. Arden, No. 30761-8-II (Wash. Ct. App., 2005)

Kelly v. Warpinski, No. 04-2999-OA (Wis. Sup. Ct. filed Nov. 17, 2004)

Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark, 120 Nev. 798 (2004)

Frase v. Barnhart, 379 Md 100 (2003)

Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002)

Krieger v. Com., 38 Va.App. 569 (2002)

Sholes v. Sholes, 760 N.E.2d 156 (Indiana 2001)

In re Adoption of J.D.W., 2000 WL 1156628 (Tenn.Ct.App. 2000)