Wednesday, July 15, 2009
Tracey Rhine, a Texas mother who lost custody of her child to temporary foster parents in a private custody dispute in the Texas courts, filed a cert. petition with the U.S. Supreme Court to challenge the Texas courts' denial of appointed counsel, according to the Texas Lawyer.
The Texas Department of Protective and Regulatory Services removed Rhine's child from Rhine's custody and placed the child with a temporary foster couple. After Rhine and the Department agreed upon conditions, the Department placed the child back with Rhine. The foster couple then sought custody in the Texas courts, and Rhine moved for court-appointed counsel. The Texas courts rejected Rhine's request for appointed trial counsel and awarded custody to the foster parents. The state appellate court rejected Rhine's request for appointed appellate counsel and remanded the case to the trial court. The trial court found that Rhine was indigent, but did not qualify for court-appointed counsel, because the underlying custody case was not initiated by the state (it was initiated by the foster parents).
Texas law provides for court-appointed counsel for indigent litigants in state-initiated deprivation-of-parental-rights proceedings, but not in private custody disputes. The differential treatment raises equal protection concerns, and Rhine argued in her cert. petition that the Texas courts' denial of appointed counsel in her case violated the Fourteenth Amendment Equal Protection Clause.
Rhine's argument is not without precedent--but it's state constitutional precedent. The Illinois and North Dakota courts have ruled that state equal protection doctrine mandates appointment of counsel under similar circumstances. California courts have gone the other way under their state constitution.
Rhine's argument on equal protection grounds also sidesteps the major hurdle that plaintiffs face in seeking a civil right to counsel: the Supreme Court's 1981 case Lassiter v. Department of Social Services. In that case, the Court ruled that an indigent litigant had no categorical right to counsel under the Due Process Clause--that due process demanded a balance (the Mathews v. Eldridge balance) to determine whether an indigent litigant qualified for appointed counsel in any particular case. Oddly--and without citation to authority--the Court in Lassiter established a presumption against appointed counsel except in cases where physical liberty was at stake.
Rhine's case avoids the Lassiter hurdle by arguing equal protection, not due process. And on the right to appellate counsel, Rhine's case at least potentially avoids the Lassiter hurdle by pursuing an argument tilted toward equal protection under Douglas v. California (establishing a right to appellate counsel for criminal defendants on equal protection grounds). (I made that argument here and here.) Thus Rhine doesn't appear to be taking on Lassiter--that could have been a tough case in the current political and economic environment, and with the current composition of the Court. Instead, Rhine is moving around Lassiter with an argument that worked under at least two state constitutions.
If the Court takes the case, three issues will be important to watch: first, the Court's treatment of the Fourteenth Amendment Equal Protection Clause; second, the Court's treatment of access to justice issues (and, possibly, how it treats the fundamental right to access in Tennessee v. Lane in this different context); and finally, the Court's treatment of state constitutional rulings on parallel provisions.
For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.