Constitutional Grounds for
Right to Counsel in Civil
Proceedings
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LASSITER V. DEPT. OF SOCIAL
SERVICES OF DURHAM COUNTY
425 U.S. 18 (1981)
(Parental termination)
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 PRESUMPTION OF DEPRIVATION OF LIBERTY
 BALANCED AGAINST
 3 PART TEST IN MATHEWS V. ELDRIDGE, 424 U.S.
319 (1976)
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 (1) PRIVATE INTERESTS
 (2)GOVERNMENT’S INTEREST
 (3) RISK THAT THE FAILURE TO APPOINT
COUNSEL WOULD LEAD TO AN ERRONEOUS
DECISION
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 WHETHER DUE PROCESS REQUIRES RIGHT TO
COUNSEL
 DECIDED ON CASE BY CASE APPROACH
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TURNER V. ROGERS
131 S. CT. 2507 (2011)
(Civil contempt)
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Applying Lassiter approach
NO AUTOMATIC RIGHT TO COUNSEL IN CIVIL
CONTEMPT PROCEEDINGS EVEN IF FACING
INCARCERATION
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“ALTERNATIVE PROCEDURAL SAFEGUARDS”
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IN RE DOE
99 HAWAI’I 522 (2002)
(right to interpreter in parental
termination proceeding)
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 ART. 1, SEC. 5 OF THE HAWAII CONSTITUTION,
THE DUE PROCESS CLAUSE,
 PROTECTS SUBSTANTIVE LIBERTY INTEREST OF
PARENTS IN THE CARE, CUSTODY, AND
MANAGEMENT OF THEIR CHILDREN
 THAT MAY NOT BE DEPRIVED WITHOUT A FAIR
PROCEDURE BASED ON DUE NOTICE AND A
MEANINGFUL HEARING.
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IN RE RGB
123 HAWAI’I 1 (2010)
(right to counsel in termination proceedings and
ineffectiveness of counsel)
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 Majority: counsel guaranteed under Lassiter, not reach
right under Hawaii constitution;
 ineffectiveness of counsel standard is prejudice plus
different result
 Dissent: right to counsel guaranteed under the Hawaii
constitution independent of federal constitution—
rejects case by case approach;
 ineffectiveness standard in Hawaii rejects federal
approach essentially adopted by majority.
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IN RE T. M.
131 HAWAI’I 419 (2014)
(right to counsel guaranteed in termination proceedings
under the Hawaii constitution)
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Parents have a constitutional right to counsel
under article 1, section 5 of the Hawai’i constitution
and
courts must appoint counsel for indigent parents
once the state files a petition to assert foster custody
over a child.
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The Due Process Clause of the Hawai’i Constitution
may be applied to expand a right to counsel
beyond the context of parental termination
proceedings.
Potential areas include:
-Paternity
-Civil Commitment
-Shelter
-Sustenance, including Benefits and Workers
Compensation
-Health/Mental Illness
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Equal Protection: paternity and shelter, for example
Article I, Section 5 of the Hawaii Constitution provides:
DUE PROCESS AND EQUAL PROTECTION
Section 5. No person shall be deprived of life, liberty or
property without due process of law, nor be denied the
equal protection of the laws, nor be denied the
enjoyment of the person's civil rights or be
discriminated against in the exercise thereof because
of race, religion, sex or ancestry.
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Public/Personal Safety: domestic violence, for example
Article IX, Section 10 of the Hawaii Constitution
provides:
PUBLIC SAFETY
Section 10. The law of the splintered paddle, mamalahoe kanawai, decreed by Kamehameha I--Let every
elderly person, woman and child lie by the roadside in
safety--shall be a unique and living symbol of the
State's concern for public safety.
The State shall have the power to provide for the safety
of the people from crimes against persons and
property.
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Native Hawaiian Rights
Article XII, Section 7 of the Hawaii Constitution
provides:
TRADITIONAL AND CUSTOMARY RIGHTS
Section 7. The State reaffirms and shall protect all
rights, customarily and traditionally exercised for
subsistence, cultural and religious purposes and
possessed by ahupua'a tenants who are descendants of
native Hawaiians who inhabited the Hawaiian Islands
prior to 1778, subject to the right of the State to
regulate such rights.
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I. Right grounded in U. S. and Hawaii constitutions
II, StatutesABA Model
CA model
Fed Court appointment of counsel for indigents
III.Safety
TROs
IV. ShelterV.Sustenance and Health
VI. Child custody
VII. Funding/comparison of structure of statutes (ABA model v. Public
defender)
VIII. Other issues: Immigration
IX. Strategies (systemic or individual cases)
X. Questions
XI. Closing comments
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