AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings OKLAHOMA

Transcription

1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings OKLAHOMA Copyright 2014 American Bar Associaton All rights reserved. American Bar Associaton Standing Commitee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: htp:// The materials herein may be reproduced, in whole or in part, provided that such use is for informatonal, noncommercial purposes only and any copy of the materials or porton thereof acknowledges original publicaton by the American Bar Associaton and includes the ttle of the publicaton, the name of the author, and the legend Copyright 2014 American Bar Associaton. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Associaton, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; i

2 OKLAHOMA Table of Contents Preface...1 Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings.2 1. SHELTER...2 Federal Statutes and Court Decisions Interpretng Statutes SUSTENANCE...2 Federal Statutes and Court Decisions Interpretng Statutes SAFETY AND/OR HEALTH...3 A. Domestc Violence Protecton Order Proceedings...3 B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings C. Civil Commitment or Involuntary Mental Health Treatment Proceedings D. Sex Ofender Proceedings...5 E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings CHILD CUSTODY...5 A. Appointment of Counsel for Parent State-Initated Proceedings Federal Statutes and Court Decisions Interpretng Statutes...5 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...6 B. Appointment of Counsel for Parent Privately Initated Proceedings State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...8 C. Appointment of Counsel for Child State-Initated Proceedings Federal Statutes and Court Decisions Interpretng Statutes...9 State Court Rules and Court Decisions Interpretng Court Rules...10 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...10 D. Appointment of Counsel for Child Privately Initated Proceedings State Court Rules and Court Decisions Interpretng Court Rules MISCELLANEOUS...11 A. Civil Contempt Proceedings B. Paternity Proceedings...11 C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Aborton D. Proceedings Involving Compliance with State Disease Control Measures E. Marriage Dissoluton/Divorce Proceedings...12 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...12 ii

3 State Court Decisions Addressing State Consttuton s Open Courts Provision...12 Law Addressing Authorizaton or Requirement to Appoint Counsel in Civil Proceedings Generally...13 Federal Statutes and Court Decisions Interpretng Statutes...13 State Court Decisions Addressing Court s Inherent Authority...13 iii

4 Preface Important Informaton to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilaton of existng statutory provisions, case law, and court rules requiring or permitng judges to appoint counsel for civil litgants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present informaton organized by types of civil proceedings. Prior to using the Directory, please read the Introducton, at the Directory s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize informaton within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warrantes concerning the informaton contained therein, which has been updated to refect the law through early The Directory does not seek to address all conceivable subsidiary issues in each jurisdicton, but some such issues were researched and addressed, including: notfcaton of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether counsel for a child means a clientdirected atorney or a best interests atorney/atorney ad litem; and federal court decisions fnding a right to counsel. Similarly, the research did not exhaustvely identfy all law regarding the issue of compensaton of appointed counsel in each jurisdicton, though discussion of such law does appear within some of the reports. The Directory atempts to identfy as unpublished any court decisions not published within an ofcial or unofcial case reporter. Discussion of unpublished cases appears only for those jurisdictons where court rules currently permit their citaton in briefs or opinions. Limitatons on the use of unpublished opinions vary by jurisdicton (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustvely researched. Users should conduct independent, jurisdicton-specifc research both to confrm whether a case is published and to familiarize themselves with all rules relatng to the citaton and use of unpublished or unreported cases. Acknowledgments This Directory was a mult-year project of the ABA s Standing Commitee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the Natonal Coaliton for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory s reports. The Acknowledgments, at the Directory s home page, details additonal specifc contributons of the many individuals involved in this project. 1

5 Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings 1. SHELTER Federal Statutes and Court Decisions Interpretng Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that [a]n aggrieved person may commence a civil acton in an appropriate United States district court or State court. 42 U.S.C (a)(1)(a). Further, [u]pon applicaton by a person alleging a discriminatory housing practce or a person against whom such a practce is alleged, the court may-- (1) appoint an atorney for such person. 42 U.S.C. 3613(b). 2. SUSTENANCE Federal Statutes and Court Decisions Interpretng Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discriminaton. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specifed that state courts have concurrent jurisdicton with federal courts for Title VII claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that [u]pon applicaton by the complainant and in such circumstances as the court may deem just, the court may appoint an atorney for such complainant. 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed: Title VII's provision for atorney appointment was not included simply as an aferthought; it is an important part of Title VII's remedial scheme, and therefore courts have an obligaton to consider requests for appointment with care. In actng on such requests, courts must remain mindful that appointment of an atorney may be essental for a plaintf to fulfll the role of a private atorney general, vindicatng a policy of the highest priority. Once the plaintf has triggered the atorney appointment provision, courts must give serious consideraton to the plaintf's request such discretonary choices are not lef to a court's inclinaton, but to its judgment; and its judgment is to be guided by sound legal principles. Furthermore, in exercising this discreton, the court should clearly indicate its dispositon of the request for appointment and its basis for that dispositon. 737 F.2d 1173, (D.C. Cir. 1984). 2

6 3. SAFETY AND/OR HEALTH A. Domestc Violence Protecton Order Proceedings No law could be located regarding the appointment of counsel for indigent litgants in domestc violence protecton order proceedings. B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings Okla. Stat. tt. 30, 3-107(A) provides that in a guardianship proceeding, If at or prior to a hearing on a petton alleging a person to be an incapacitated or partally incapacitated person, or if at any point in the course of a proceeding pursuant to said petton, the subject of the proceeding is not represented by counsel, the court may appoint an atorney as provided in this secton, and the court may at any tme subsequent to the fling of said petton appoint a guardian ad litem to assist the court in making a determinaton as to whether or not an atorney should be appointed for the subject of the proceeding. While this sounds like a mater of discreton for the judge, 3-107(B) specifes that: If the subject of the proceeding is present at the hearing on the petton and is not represented by counsel at said hearing: 1. The court shall explain on the record: a. the purpose and potental consequences of the proceeding; and b. the right to be represented by counsel upon request and that if the subject of the proceeding wishes to be represented by counsel, the court will appoint an atorney to represent the subject of the proceeding at the hearing on the petton. Additonally, Okla. Stat. tt. 30, 3-106(A) states: In all hearings conducted pursuant to Artcle III of the Oklahoma Guardianship and Conservatorship Act, an individual who is alleged to be or found to be an incapacitated or partally incapacitated person shall have a right to: representaton by court-appointed counsel upon request.... Okla. Stat. tt. 30, 4-308(F) says that for proceedings to terminate or remove a guardian, or for review proceedings, the court may appoint an atorney to represent at such hearing a ward who is an incapacitated or partally incapacitated person, in the same manner and with the same compensaton as provided in the Oklahoma Guardianship and 3

7 Conservatorship Act for appointment of an atorney for the subject of the proceeding following the fling of a petton for appointment of a guardian or limited guardian of the person or property of an alleged incapacitated or partally incapacitated person. See also Okla. Stat. tt. 30, 4-307(H) (for hearings related to guardianship annual reports, court may appoint an atorney to represent the ward who is an incapacitated or partally incapacitated person, in the same manner and with the same compensaton as provided in this act for appointment of an atorney for the subject of the proceeding following the fling of a petton for appointment of a guardian or limited guardian of the person or property of an alleged incapacitated or partally incapacitated person. ) 1 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings Oklahoma, by statute, guarantees a person alleged to require involuntary commitment for treatment with a right to court-appointed counsel if they are found to be indigent. Okla. Stat. tt. 43A, 5-411(A)(2) provides that [a]n individual alleged to be a person requiring treatment shall have the following rights:... The right to counsel, including court-appointed counsel, and if the person has no counsel, that the court shall appoint an atorney to represent the person at no cost if the person is an indigent person and cannot aford an atorney. The person alleged to require treatment also has a right to notce of their ability to obtain a courtappointed atorney. Okla. Stat. tt. 43A, 5-412(B)(5). Further, the person alleged to require treatment can obtain their own counsel or replace the court-appointed counsel, and if the person fles an afdavit that they are indigent, the atorney s fees will be paid from the court fund, subject to limits set by the court. Okla. Stat. tt. 43A, 5-411(D)(2)-(3). 1 In In re Guardianship of Holly, 164 P.3d 137 (Okla. 2007), the Oklahoma Supreme Court stated: We reject Appellees' asserton that this right to an atorney of one's own choosing does not extend with the same force to a person who has already been declared a ward in a guardianship proceeding. The massive curtailment of liberty associated with a guardianship proceeding contnues as long as that guardianship persists. The proceedings must contnue to be conducted with the utmost care to ensure that the ward subject to that curtailment receives due process. This would suggest that the right to appointed counsel should contnue even through a review hearing. However, the Court in Holly was not being asked specifcally about the right to appointed counsel, and the statutory language about the discreton in appointng counsel in review proceedings is fairly clear. 4

8 D. Sex Ofender Proceedings No law could be located regarding the appointment of counsel for indigent civil litgants in sex ofender proceedings. However, this jurisdicton might not have a mechanism for confning sexually dangerous/violent persons. E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings No law could be located regarding the appointment of counsel for indigent litgants in civil proceedings involving involuntary quarantne, inoculaton, or sterilizaton. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initated Proceedings Title 10 of the Oklahoma Statutes, which included the procedures for terminaton of parental rights (TPR) and a provision specifcally providing for counsel in TPR proceedings, was repealed in 2009 and replaced with Title 10A. That ttle states: If a parent or legal guardian of the child requests an atorney and is found to be indigent, counsel may be appointed by the court at the emergency custody hearing and shall be appointed if a petton has been fled alleging that the child is a deprived child; provided, that the court may appoint counsel without such request, if it deems representaton by counsel necessary to protect the interest of the parent, legal guardian, or custodian. Okla. Stat. tt. 10A, (A)(1)(a) & (A)(2)(a). While there is a clear right to counsel for parents in deprived child (i.e. abuse/neglect) proceedings, it is unclear whether this extends to subsequent TPR proceedings. The new TPR statutory provisions (Okla. Stat. tt. 10A, et seq.) make no menton of the right to counsel, but it may be that counsel appointed pursuant to the deprived child proceeding contnues through the TPR proceedings, especially since refers broadly to appointment of counsel for parents. Additonally, Okla. Stat. tt. 10, (D) provides a right to counsel for parents in adopton proceedings, so presumably there is a right in TPR cases as well. Federal Statutes and Court Decisions Interpretng Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in 5

9 state court, 2 provides: In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or terminaton proceeding.where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notfy the Secretary upon appointment of counsel, and the Secretary, upon certfcaton of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to secton 13 of this ttle. 25 U.S.C. 1912(b). State Court Decisions Addressing Consttutonal Due Process or Equal Protecton Before the decision in Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (fnding no Fourteenth Amendment categorical right to counsel in terminaton of parental rights proceedings), the Oklahoma Supreme Court found that a consttutonal right to counsel for parents in a case where a mother was not appointed counsel in a terminaton of parental rights case, notwithstanding a statute requiring that counsel be appointed in such cases. In re Chad S., 580 P.2d 983, (Okla. 1978). The court commented that [n]o decision of this court has previously required the trial court, as a mater of consttutonal due process, to advise parents in a terminaton order of their right to court-appointed counsel if they are shown to be indigent. Id. at 985. However, it then went on to broadly state that [t]he fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivaton hearings. This includes the right to counsel. Id. The court relied on a series of U.S. Supreme Court rulings for its decision. Afer Chad S., the court specifcally held in another pre-lassiter case that parents have a right to counsel in dependency proceedings as well. In re F. K. C., 609 P.2d 774, 776 (Okl. 1980). The F. K. C. court construed Chad S. to be a holding based entrely on the Fourteenth Amendment and Oklahoma statutes, not on the state consttuton, and noted that while Chad S. was only about terminaton of parental rights, the court relied heavily on Davis v. Page, 442 F.Supp. 258, 263 (S.D. Fla. 1977), which involved a dependency hearing. Id. at 776. The court therefore concluded that Chad S. holds that the due process clause of the Fourteenth Amendment and the statutes of the State of Oklahoma require that parents in dependency and 2 While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additonally, 25 U.S.C. 1912(b) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of interventon. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 6

10 neglect proceedings be advised of their right to assistance of counsel, and that if they cannot aford counsel that counsel will be appointed for them unless the right is knowingly and intelligently waived. Id. However, not six months later, the Oklahoma Supreme Court inexplicably held that [i]n deprived-status proceedings, a parent has no consttutonal right to a state-provided lawyer. Delaney v. State, 617 P.2d 886, 891 (Okla. 1980). The Delaney court did not distnguish Chad S. or F. K. C., although it cited both at one point. It is impossible to reconcile Delaney with F. K. C., unless the deprived status proceedings in Delaney are somehow diferent than the dependency proceedings referred to in F. K. C. Id. at 890 n. 11 The high court subsequently revisited the right to counsel in terminaton proceedings in a post-lassiter case and found there is a right to counsel in such proceedings, including the right to efectve counsel. In re D.D.F. 801 P.2d 703, 706 (Okla. 1990). 3 The court rejected Lassiter in favor of its prior determinaton in In re Chad S., statng, [a]lthough the federal consttuton does not require that counsel be appointed in all terminaton proceedings, we believe that the rights at issue are those which are fundamental to the family unit and are protected by the due process clause of the Oklahoma Consttuton, Art. 2, 7. 4 Id. More recently, Oklahoma courts have found an abuse of discreton where a trial court refused to provide a contnuance resultng in a mother being represented by a wholly unprepared counsel at hearing to terminate her parental rights. In re S.S., 90 P.3d 571 (Okla. Civ. App. 2004). B. Appointment of Counsel for Parent Privately Initated Proceedings For privately initated adoptons, Okla. Stat. tt. 10, (E) provides a right to counsel in voluntary relinquishment, while Okla. Stat. tt. 10, (D) states that [w]hen a parent or putatve father appears at the hearing and desires counsel but is indigent and cannot for that reason employ counsel, the court shall appoint counsel. In In re Adopton of Baby Boy L, 306 P.3d 580, 584 (Okla. App. 2013), the Court of Appeals held that a father who opposed the adopton was not eligible to recoup his atorney fees from the adoptve parents by utlizing what was then the equivalent of (D) (he apparently was indigent but had not sought appointed counsel under the statute; rather, he had retained counsel). The court added that 10 Okl. St. Ann only provided authority for the adoptve parents to recoup atorney fees, and that the father had never specifcally asked the court use its own fund to pay for his atorney. 3 The Court of Appeals in D.D.F. also found a right to counsel for appeals of terminaton of parental rights cases, based on both statutory constructon and on Chad S. See Mater of D.D.F., 784 P.2d 89 (Okl. App. 1989). However, the Oklahoma Supreme Court found the issue to be moot by the tme it reached the high court because the litgant had been appointed appellate counsel. 4 D.D.F. cited Delaney as a but see case, but provided no other explanaton. 7

11 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton The court in Harmon v. Harmon, 943 P.2d 599 (Okl. 1997), rejected an incarcerated father s request for appointment of counsel in connecton with parental visitaton rights in a divorce proceeding, statng: Id. at 605 n.5. The instant mater does not involve the potental for the terminaton of husband's parental rights concerning the minor child of the marriage, i.e. a situaton where this Court has generally indicated a right to counsel for indigent parents exists. See e.g. Mater of Chad S., 580 P.2d 983 (Okla. 1978). We do not believe husband has a consttutonally protected right to counsel in this divorce case merely because it involves property issues and issues concerning custody/visitaton with a minor child. C. Appointment of Counsel for Child State-Initated Proceedings Title 10 of the Oklahoma Statutes, which included the procedures for terminaton of parental rights (TPR) and a provision specifcally providing for counsel in TPR proceedings, was repealed in 2009 and replaced with Title 10A. That ttle states: The court may appoint an atorney or a guardian ad litem for the child when an emergency custody hearing is held; provided, that when a petton is fled alleging the child to be deprived, the court shall appoint a separate atorney for the child, who shall not be a district atorney, regardless of any atempted waiver by the parent, legal guardian or custodian of the child of the right of the child to be represented by counsel. Okla. Stat. tt. 10A, (A)(1)(a) & (A)(2)(a). While there is a clear right to counsel for children in deprived child (i.e. abuse/neglect) proceedings, it is unclear whether this extends to subsequent TPR proceedings. The new TPR statutory provisions (Okla. Stat. tt. 10A, et seq.) make no menton of the right to counsel, but it may be that counsel appointed pursuant to the deprived child proceeding contnues through the TPR proceedings. In In re T.M.H., 613 P.2d 468, (Okla.1980), while the statute existng at the tme required counsel to be appointed for children in terminaton cases only upon a fnding that such appointment was necessary to protect the interests of the child, the court held that [w]e are convinced that in all terminaton proceedings there are potental conficts between the 8

12 interests of the children and those of both the state and the parents as contemplated by ss 1109 and 24 which are general statutes not necessarily covering only terminaton. Thus we hold under the above quoted statutes, independent counsel must be appointed to represent the children if terminaton of parental rights is sought. It is unclear whether the current statute refects this requirement, as it is unclear whether it reaches terminaton of parental rights proceedings and equally unclear whether T.M.H. stll applies, given changes to the statute. However, with respect to payment for atorneys appointed for children in such situatons, the court held in Mater of Adopton of B.R.B., 905 P.2d 807, 810 (Okla. 1995), that the state and not the parents are responsible for the atorney fees. Federal Statutes and Court Decisions Interpretng Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 5 provides the following with regard to any removal, placement, or terminaton of parental rights proceeding: The court may, in its discreton, appoint counsel for the child upon a fnding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notfy the Secretary upon appointment of counsel, and the Secretary, upon certfcaton of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to secton 13 of this ttle. 25 U.S.C. 1912(b). The federal Child Abuse Preventon and Treatment Act (CAPTA) provides: A State plan submited under paragraph (1) shall contain a descripton of the actvites that the State will carry out using amounts received under the grant to achieve the objectves of this subchapter, including (B) an assurance in the form of a certfcaton by the Governor of the State that the State has in efect and is enforcing a State law, or has in efect and is operatng a statewide program, relatng to child abuse and neglect that includes-- (xiii) provisions and procedures requiring that in every case involving a victm of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early 5 While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additonally, 25 U.S.C. 1912(b) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of interventon. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 9

13 childhood, child, and adolescent development, and who may be an atorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings. 42 U.S.C. 5106a(b)(2). State Court Rules and Court Decisions Interpretng Court Rules The Fourteenth Judicial District (covering Tulsa and Pawnee County) promulgated Probate Rule 6, which specifes: Independent legal counsel or an atorney of the County Indigent Defender's Ofce shall be appointed for every child in a... terminaton of parental rights mater. State Court Decisions Addressing Consttutonal Due Process or Equal Protecton As discussed supra, in In re T.M.H., 613 P.2d 468, (Okla. 1980), the court held that, under the relevant statutes, independent counsel must be appointed to represent the children if terminaton of parental rights is sought. While this appeared to be a case of pure statutory constructon, the court in Mater of Adopton of K.D.K., 940 P.2d 216 (Okl. 1997) stated that [i]n Mater of T.M.H. this Court held that a child has a consttutonal right to counsel in a proceeding initated by the state for the terminaton of parental rights. The K.D.K. court did not make it clear whether T.M.H. was a state or federal consttutonal decision. D. Appointment of Counsel for Child Privately Initated Proceedings The court in In re S.A.W., 856 P.2d 286, 289 (Okla. 1993) extended the statutory right to appointed counsel discussed supra Part 4.C. in In re T.M.H., 613 P.2d 468, (Okla.1980), to children in private parental terminaton actons; although, as discussed supra, it is unclear whether T.M.H. is stll valid law given the changes to the statute. With respect to private custody cases, Okla. Stat. tt. 43, 107.3(A)(1) specifes that [i]n any proceeding when the custody or visitaton of a minor child or children is contested by any party, the court may appoint an atorney at law as guardian ad litem upon moton of the court or upon applicaton of any party to appear for and represent the minor children. State Court Rules and Court Decisions Interpretng Court Rules 10

14 The Fourteenth Judicial District (covering Tulsa and Pawnee County) promulgated Probate Rule 6, which specifes: Independent legal counsel or an atorney of the County Indigent Defender's Ofce shall be appointed for every child in a contested guardianship [or] contested or default adopton. 5. MISCELLANEOUS A. Civil Contempt Proceedings Oklahoma law grants a statutory right to counsel and notce of this right for an indigent defendant facing a civil contempt acton that could result in incarceraton. Okla. Stat. tt. 12, Chap. 2, App., Rule 29 ( In a civil contempt acton which may result in the incarceraton of a defendant who appears without counsel, the court must inform the defendant that he has a right to counsel and that if he is fnancially unable to employ counsel and desires such, the court must assign counsel to defend him. Only afer receiving notce of this right, can the defendant knowingly and intelligently waive his right to counsel. ) B. Paternity Proceedings No law could be located regarding the appointment of counsel for indigent litgants in paternity proceedings. C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Aborton For minors seeking judicial waiver of the parental consent and notfcaton requirements to have an aborton, Okla. Stat. tt. 63, (C) states that The court shall advise the pregnant unemancipated minor that she has a right to court-appointed counsel and, upon her request, shall provide her with counsel. D. Proceedings Involving Compliance with State Disease Control Measures 11

15 Oklahoma s Agricultural Code provides a statutory right to counsel for indigent persons facing a court hearing regarding compliance with measures implemented by the State Board of Agriculture to prevent the spread of disease among livestock. Okla. Stat. tt. 2, 6-404(C)(5). E. Marriage Dissoluton/Divorce Proceedings State Court Decisions Addressing Consttutonal Due Process or Equal Protecton In Kiddie v. Kiddie, 563 P.2d 139 (Okla. 1977), the court rejected the argument that a husband had a right to appointed counsel in a divorce proceeding in which the husband had represented himself pro se and was ultmately ordered to make alimony payments to his former wife. On appeal, the husband argued that the trial judge erred in allowing him to represent himself pro se and not appointng an atorney for him. The court frst noted that the only routes it perceived to a right to counsel for any case are the Sixth and Fourteenth Amendments, and [t]he guarantee of the Sixth Amendment does not extend to civil proceedings. 563 P.2d at 141. The Kiddie court then identfed a broad range of civil cases in which courts in Oklahoma and other jurisdictons have rejected a party s claim to a due process right to counsel, such as a court-ordered psychiatric hearing, a labor union hearing, a hearing before a local draf board, a polygraph test pursuant to a hearing before the Chicago Police Department regarding possible suspension of a police ofcer, and a hearing on disciplinary charges against a doctor appearing before the Veteran's Administraton. Id. at It conceded that courts in other jurisdictons had found rights to counsel in certain civil proceedings, such as terminaton of parental rights and some custody proceedings, but noted that even New York had rejected the right to counsel in a divorce proceeding. Id. at 142. While notng that courts have granted a right to counsel for certain limited contexts, the court found that these extensions and later ones have involved a right to liberty, thus the guarantee ordinarily has no applicaton to maters purely of a civil nature. Id. at 141. Beyond hearings involving a liberty interest, the court found that a right to counsel generally has been held inapplicable to civil proceedings even though they may have a critcal impact on the destny of the individual. Id. State Court Decisions Addressing State Consttuton s Open Courts Provision Artcle II, 6 of the Oklahoma Consttuton expressly provides that [t]he courts of justce of the State shall be open to every person, and speedy and certain remedy aforded for every wrong and for every injury to person, property, or reputaton; and right and justce shall be administered without sale, denial, delay, or prejudice. Okla. Const. art. II 6. In Kiddie v. Kiddie, discussed supra, the court declared that [l]ack of funds to employ counsel technically does not deny a litgant access to the courts. 563 P.2d at

16 Law Addressing Authorizaton or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpretng Statutes The federal Servicemembers Civil Relief Act (SCRA), which applies to each state 6 and to all civil proceedings (including custody), 7 provides: If in an acton covered by this secton it appears that the defendant is in military service, the court may not enter a judgment untl afer the court appoints an atorney to represent the defendant. If an atorney appointed under this secton to represent a servicemember cannot locate the servicemember, actons by the atorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember. 50 App. U.S.C. 521(b)(2). Additonally, 50 App. U.S.C. 522(d)(1), which also applies to all civil proceedings (including custody), 8 specifes that a service member previously granted a stay may apply for an additonal stay based on a contnuing inability to appear, while 522(d)(2) states: If the court refuses to grant an additonal stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the acton or proceeding. State Court Decisions Addressing Court s Inherent Authority The Oklahoma Supreme Court in Kiddie v. Kiddie, 563 P.2d 139 (Okla. 1977), stated: A trial court may certainly appoint counsel to represent an indigent in a civil mater if it sees ft, but it is entrely discretonary. 563 P.2d 139, 143 (Okla. 1977) (fnding no right to appointed counsel for husband in divorce proceeding in which he represented himself pro se and was ultmately required to make alimony payments to former wife), discussed supra Part 5.E. However, it is not clear whether the court was referring to the court s power to appoint counsel based on its inherent authority or pursuant to a case-by-case due process approach App. U.S.C.A. 512(a) states, This Act [sectons 501 to 515 and 516 to 597b of this Appendix] applies to-- (2) each of the States, including the politcal subdivisions thereof 7 50 App. U.S.C. 521(a) states, This secton applies to any civil acton or proceeding, including any child custody proceeding, in which the defendant does not make an appearance App. U.S.C. 522(a) applies to any civil acton or proceeding, including any child custody proceeding, in which the plaintf or defendant at the tme of fling an applicaton under this secton-- (1) is in military service or is within 90 days afer terminaton of or release from military service; and (2) has received notce of the acton or proceeding. 13