August 20, 2012
Kansas Supremes Extend Right to Counsel to Sexually Violent Predators Proceeding
The Kansas Supreme Court ruled last week in In the Matter of the Care and Treatment of Ontiberos that state and federal due process require that the state provide counsel to a person in a civil proceeding to detain that person as a sexually violent predator.
The ruling means that persons subject to civil confinement as sexual predators under Kansas law get an attorney at trial, and that the attorney has to meet certain standards of performance. The case is a victory for advocates of the right to counsel in civil proceedings, even if it's not particularly groundbreaking. It also reminds us that even after the Supreme Court stepped back from granting a categorical right to counsel whenever liberty is at stake, due process may still demand counsel in certain civil cases.
The Kansas Sexually Violent Predator Act allows the state to detain a person upon a showing beyond a reasonable doubt that the person is a sexually violent predator. But the Act is ambiguous about a target's statutory right to counsel. (The Act says that any person subject to it is entitled to the assistance of counsel at every stage, but it also says that the state's failure to comply "in no way prevents the attorney general from proceeding against" the person.) Ontiberos, a prisoner subject to KSVPA proceedings, had an attorney at trial, but claimed that he was ineffective. The ambiguity of the statutory right to counsel, and Ontiberos's claim that his attorney was ineffective, allowed the court to rule first whether he had a constitutional right to counsel and next whether that counsel was ineffective.
The court ruled Ontiberos had a state and federal constitutional right to counsel. It applied the familiar three-part procedural due process balancing test in Mathews v. Eldrige and ruled that Ontiberos's liberty interest was quite high, the government's interest in saving money was comparatively low, and the risk of an erroneous deprivation of liberty without counsel was high, especially because the government was represented by counsel.
The court tipped its hat to the Supreme Court's 2011 ruling in Turner v. Rogers. That case held that there was no automatic right to counsel in a child support proceeding, even if that proceeding could result in a parent's 1-year imprisonment (for contempt), so long as sufficient alternative procedures were available. Even so, said the Kansas court, Turner didn't rule out a constitutional right to counsel in other civil cases (like this one) where the Mathews factors aligned more favorably for the claimant.
Instead, the court looked to Vitek v. Jones. In Vitek, the Supreme Court ruled that a prisoner had a right to counsel in a proceeding to transfer the prisoner to a mental hospital until his sentence expired, unless treatment was no longer necessary. The Kansas court said that Ontiberos's liberty claim (the first Mathews factor) was even greater than the liberty claim in Vitek, because without the KSVPA proceeding Ontiberos would have been released. (Remember: his sentence was coming to an end.)
Having found a right to counsel, the court then ruled that counsel had to meet the two-prong performance standard in Strickland v. Washington. The court said that this attorney didn't, and remanded the case to the trial court.
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