Right to counsel - challenging quality of sex offender treatment
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
05/12/2017, Litigation, Involuntary Medical Treatment (incomplete)
In Merryfield v. State, 241 P.3d 573 (Kan. App. 2010), the court held that the failure to provide appointed counsel for persons challenging the quality of their treatment under the Kansas Sexual Predator Treatment Program was a violation of both due process and equal protection, where such challenges are "not subject to summary dismissal." The petitioner had brought a habeas corpus petition alleging that the facility in which he had been confined for over a decade did not provide constitutionally adequate care, and challenged the training of the staff and some of their methods.
The court relied on the strength of Merryfield's liberty interest as well as cases from other state and federal courts in order to find a due process right to counsel in such proceedings. It stated that Merryfield "contends—with sufficient basis to warrant an evidentiary hearing—that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom" and that such a person "must be entitled to the assistance of counsel in the resolution of such substantial claims."
The Merryfield court also held that even under a rational basis analysis, the statutory scheme flunked equal protection, given that Kansas provided counsel to other civilly committed individuals. The court explained that while the state had sufficient reasons for treating sexually violent people differently from other civil committees in terms of treatment approach, it did not have a sufficient reason for treating them differently in terms of provision of counsel. It concluded that "[t]here is no rational basis for making it fundamentally more difficult for those committed to the sexual predator treatment program to seek court redress for unconstitutional conduct-including conduct that suggests the constitutionality of the entire program may be questioned-than other civilly committed individuals or inmates".
Applying Merryfield, the Court of Appeals held that a confined person has a constitutional right to counsel in a challenge to search and seizure of the confined person’s property where such claims survive summary dismissal. Johnson v. Bruffett, 2017 Kan. App. Unpub. LEXIS 362 (Kan. App. May 12 2017). The court examined whether summary dismissal had occurred in the instant case and explained that “[T]he court based its ruling not just on the pleadings filed, but on the evidence and testimony presented at the telephone hearing. In doing so, the court made credibility findings. For all of these reasons, we necessarily conclude that the court's ruling was not a summary dismissal. As such, Johnson was legally entitled to have counsel represent him at the January 8, 2015, hearing.” The court then reversed and remanded for further proceedings.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: yes