Indiana Supreme Court Takes Up Civil Right to Counsel

The Indiana Supreme Court recently agreed to hear a case in which an indigent mother was denied counsel on appeal after the trial court entered an order terminating her parental rights.  (The mother was represented at trial, but the appellate court denied her motion for appointed counsel on appeal.)

The case, In the Matter of the Termination of the Parent-Child Relationship of I.B. v. Indiana Dep't of Child Services, raises state and federal constitutional issues related to civil right to counsel.  But this is no "Civil Gideon."  The claimed constitutional right is a right to counsel on appeal--a "Civil Douglas."

"Civil Douglas" refers to Douglas v. California, the 1963 Supreme Court case establishing a right to counsel on appeal for poor criminal appellants.  Douglas came down the same day as Gideon v. Wainwright, the case establishing a right to counsel at trial for poor criminal defendants.  But despite their obvious similarities, Douglas and Gideon were rooted in different constitutional principles: Gideon was based on procedural considerations under the Sixth Amendment; Douglas was based on equal access to the courts under equal protection.  Although the cases came down one right after the other, they didn't even cite each other. 

Gideon and Douglas planted the seeds for subsequent access-to-justice cases at trial and on appeal--even civil cases.  Thus subsequent cases dealing with all manner of barriers to access at trial (fee barriers, lack of appointed counsel) are based primarily on due process considerations, but subsequent cases dealing with the same barriers on appeal are based primarily on equal protection considerations. 

The difference is critical in civil right to counsel cases.  The Supreme Court ruled in Lassiter v. Dep't of Social Services in 1981 that poor civil litigants had no categorical right to counsel at trial in cases involving an interest other than physical liberty.  The Court ruled that the three-part procedural due process balancing test in Mathews v. Eldridge must overcome a Court-created presumption against counsel in cases not involving physical liberty.  The test makes it very difficult for poor civil litigants to get a court-appointed attorney at trial in parental rights cases, housing cases, and other cases involving basic human needs other than physical liberty.

But, under Douglas and its progeny, there is no presumption against counsel on appeal.  In fact, there's no necessary consideration of the underlying interests at all.  Instead, the courts look to equal access and equal protection considerations, not the interest-bound due process test.  As a result, civil right to counsel on appeal may well be easier to establish (as I argue here and here).

Petitioner in the Indiana case puts Civil Douglas squarely before the Indiana Supreme Court.

Petitioner also makes a state constitutional "open courts" argument.  The jurisprudence among the several states of state constitutional open courts provisions--which require "justice" to be administered "freely and fairly," "speedily," "without denial," and variations on those terms--is notoriously inconsistent and confused.  (I tried to make some sense of it in the context of access and right-to-counsel here.)  Indiana may have a cleaner open courts jurisprudence by focusing on "fundamental fairness" in process--a test that sounds like a combination of due process and equal protection.

At the end of the day, though, it's not clear that the court will address any of the constitutional arguments.  Indiana has a statute that says that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship."  The court might well dodge the constitutional questions by interpreting "proceedings" to include appeals.

The "petition to transfer" (the cert. petition) is here.

SDS