Friday, January 16, 2009

Right to Counsel in Truancy Proceedings

The Washington Court of Appeals--Washington's intermediate appellate court--ruled this week that children in truancy proceedings have a right to counsel (appointed by the district) as a matter of due process.  The opinion is here.

The court used the familiar Mathews v. Eldridge Fourteenth Amendment procedural due process balancing test, but there are several notable points in the court's analysis (bulleted below).  Washington, like many other states, adopts the federal due process test, but puts their own gloss on it--often opening additional space for claims of individual rights.  In this case, Washington's gloss--leading to the right to counsel--is characterized by these points:

  • The court recognized that the truancy proceeding itself could not lead to a deprivation of physical liberty (although a subsequent contempt proceeding for violation of the truancy proceeding terms could).  But the court nevertheless credited the child's liberty interest, because the child is, well, a child (and therefore cannot seek counsel or defend rights on his or her own).  In adult cases (like child support enforcement proceedings) the Washington courts had previously ruled that physical liberty was not a serious interest, because the underlying proceeding couldn't result in a deprivation of physical liberty (even if subsequent contempt proceedings could).  The court thus recognized that the claimant's capabilities matter--enough to alter the traditional rule on physical liberty once removed.
  • The court also credited interests in privacy and bodily integrity (because a truancy proceeding could result in mandatory drug or alcohol tests) and education (because a truancy proceeding could result in a mandatory change of schools), thus recognizing more than merely physical liberty as an important interest.  (Federal procedural due process cases on the right to counsel simply compare the level of deprivation of physical liberty to the possibility of an absolute deprivation (as, e.g., in Gideon v. Wainwright).  If physical liberty (at any level) isn't in play, the right-to-counsel claim is a nonstarter.)  The court's discussion of these interests here marks a move toward recognizing a wider range of important interests in the due process calculus.
  • The court ruled that the possibility of error in a truancy proceeding was magnified significantly because the target was a child.  This was so even though the child's parent could attend the truancy hearing.  The procedural rules--relatively simple, compared with rules of civil or criminal procedure--were complicated enough that a child would have a hard time protecting his or her interests.  Combined with the court's attention to the child's capabilities (discussed above), this means that the court will hold up the procedures to the claimant's capabilities and ask whether a particular claimant can proceed effectively under particular procedures--a comparison that we don't often see in procedural due process right-to-counsel cases.
  • The court ruled that the state's interest in saving money--the ubiquitous state interest in right-to-counsel cases--was simply insufficient to outweigh these other considerations, even though counsel for truancy proceedings could impose an "extreme burden" on districts. 

We'll report if this goes to the Washington Supreme Court.  For more on the right to counsel, see the web-site for the National Coalition for a Civil Right to Counsel.  I've posted on the right to counsel in home mortgage foreclosures here.


Fourteenth Amendment, Procedural Due Process, Recent Cases | Permalink

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Thanks for posting on this and the links to the material on a "civil right to counsel." Alas, the right to counsel has not been respected in any significant way for some time now, as the articles and links in these posts at the Legal Ethics Forum attest:

In my town, we have "5 minute" routine plea bargaining, our local variation on the "meet 'em and greet 'em and plead 'em" practice. Indigent defendants and others intimately acquainted with this putative criminal due process have long called our county's Public Defender Office the "Public Pretenders Office!"

It will be interesting to see if a civil right to counsel is respected and practiced while indigent criminal defendants continue to be denied their constitutionally guaranteed right to competent/effective representation.

Posted by: Patrick S. O'Donnell | Jan 17, 2009 4:24:12 AM

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