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

Transcription

1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings NEBRASKA Copyright 2017 American Bar Association All rights reserved. American Bar Association Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: The materials herein may be reproduced, in whole or in part, provided that such use is for informational, noncommercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend Copyright 2017 American Bar Association. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS NEBRASKA 2017 i

2 NEBRASKA Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 2 1. SHELTER... 2 Federal Statutes and Court Decisions Interpreting Statutes SUSTENANCE... 2 Federal Statutes and Court Decisions Interpreting Statutes SAFETY AND/OR HEALTH... 3 A. Domestic Violence Protection Order Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection... 3 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Court Decisions Addressing Court s Inherent Authority... 4 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings D. Sex Offender Proceedings E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings CHILD CUSTODY... 5 A. Appointment of Counsel for Parent State-Initiated Proceedings Federal Statutes and Court Decisions Interpreting Statutes... 5 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 6 B. Appointment of Counsel for Parent Privately Initiated Proceedings... 7 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 7 C. Appointment of Counsel for Child State-Initiated Proceedings Federal Statutes and Court Decisions Interpreting Statutes... 9 D. Appointment of Counsel for Child Privately Initiated Proceedings MISCELLANEOUS A. Civil Contempt Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection B. Paternity Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion State and Federal Court Decisions Addressing Constitutional Due Process or Equal Protection.. 12 D. Juvenile Court Proceedings E. Marriage Dissolution/Divorce Proceedings ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS NEBRASKA 2017 ii

3 F. Proceedings Involving Claims by or Against Prisoners State Court Decisions Addressing Constitutional Due Process or Equal Protection G. Forfeiture Proceedings Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Constitutional Due Process or Equal Protection iii

4 Preface Important Information to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, 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 information 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 warranties concerning the information contained therein, which has been updated to reflect the law through mid The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification 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 attorney or a best interests attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research did not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports. The Directory attempts to identify as unpublished any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases. Acknowledgments This Directory was a multi-year project of the ABA s Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National Coalition 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 additional specific contributions of the many individuals involved in this project. ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS NEBRASKA

5 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER Federal Statutes and Court Decisions Interpreting 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 action in an appropriate United States district court or State court[.] 42 U.S.C. 3613(a)(1)(A). Further, [u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may... appoint an attorney for such person[.] 3613(b)(1). 2. SUSTENANCE Federal Statutes and Court Decisions Interpreting Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that [u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant[.] 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Circuit observed: Title VII s provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII s remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill the role of a private attorney general, vindicating a policy of the highest priority.... Once the plaintiff has triggered the attorney appointment provision, courts must give serious consideration to the plaintiff's request such discretionary choices are not left to a court s inclination, but to its judgment; and its judgment is to be guided by sound legal principles.... Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition. 737 F.2d 1173, (D.C. Cir. 1984) (citations omitted). 2

6 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings In actions involving protection from domestic abuse, [t]he department 1 shall provide emergency services which shall consist of up to seventy-two hours of crisis intervention services including... [e]mergency legal counseling and referral. Neb. Rev. Stat (4). State Court Decisions Addressing Constitutional Due Process or Equal Protection Citing the Nebraska Supreme Court s prior ruling in Carroll v. Moore, discussed infra Part 5.B, the Nebraska Court of Appeals held that an indigent adverse party to a protection order proceeding had no federal constitutional mandated right to court appointed counsel. Elstun v. Elstun, 589 N.W.2d 334, 343 (Neb. Ct. App. 1999), aff d in part, rev d in part, 600 N.W.2d 835 (1999). The appeals court stated that the Carroll decision should not be read as providing that an indigent defendant is entitled to court-appointed counsel in every civil proceeding that has some possibility of future incarceration for that defendant. Instead... where incarceration is an indirect consequence, or only a possibility, a trial court, in determining whether counsel should be appointed, must balance three factors that were set out in Mathews v. Eldridge. 2 Id. at 342. Applying the Mathews factors, the court concluded that: a) protection orders were simple (as compared to paternity) and with no further consequences for the adverse party so long as that party does not violate the order, b) the risk of erroneous deprivation was low due to the procedural safeguards already in place and the straightforward factual nature of the dispute, and c) providing counsel would diminish the state s interest in providing an informal, prompt, and flexible procedure for seeking protection orders by seriously and unnecessarily complicat[ing] and slow[ing] down that process. Id. at On further appeal, the Nebraska Supreme Court reviewed only an issue related to cross-examination and affirm[ed] the Court of Appeals determinations in respect to the other issues unaddressed herein, which included the right to counsel issue. 600 N.W.2d at Department is defined in Neb. Rev. Stat (2) as the Department of Health and Human Services. 2 See 424 U.S. 319 (1976) (three-part test is personal interests at stake, risk of error, and state s interest). 3

7 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings For adult guardianship proceedings: Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the person alleged to be incapacitated has retained counsel of his or her own choice or has otherwise indicated a desire for an attorney of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding. Neb. Rev. Stat (b). Section (b) provides a similar discretionary power for temporary guardianships. For guardianship removal/termination proceedings: [T]he court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained, to observe conditions and report in writing to the court (c). It is unclear whether same procedures is limited to the visitor s actions (which would not incorporate the discretionary appointment of counsel provision) or applies to the whole proceeding. 3 In In re Guardianship of Brydon P., the high court observed that authorizes payment of attorney fees for the ward s attorney when the ward is an adult. 838 N.W.2d 262, 268 (Neb. 2013). State Court Decisions Addressing Court s Inherent Authority In In re Guardianship of Suezanne P., an appellate court held that the court has no inherent power to order a county to pay appointed counsel s fees in a guardianship case where no statutory authority existed and where the county was not party to action. 578 N.W.2d 64, 67 (Neb. Ct. App. 1998). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings 3 Note, however, that (b) states: After appointment, the ward may retain an attorney for the sole purpose of challenging the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward. 4

8 A person shall have the right to be represented by counsel in all proceedings under the Nebraska Mental Health Commitment Act[.] Neb. Rev. Stat Such counsel will be court appointed if the individual is deemed to be indigent. Id. D. Sex Offender Proceedings A person shall have the right to be represented by counsel in all proceedings under the Nebraska... Sex Offender Commitment Act. Neb. Rev. Stat Such counsel will be court appointed if the individual is deemed to be indigent. Id. E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving involuntary quarantine, inoculation, or sterilization. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings When a juvenile is alleged to be in need of assistance or when termination of parental rights is sought... and the parent, custodian, or guardian appears with or without counsel, the court shall inform the parties of the... [r]ight of the parent to engage counsel of his or her choice at his or her own expense or to have counsel appointed if the parent is unable to afford to hire a lawyer[.] See Neb. Rev. Stat (1)(b). See also (3)(a) (describing proceedings for juveniles in need of assistance); (6) (describing termination of parental rights proceedings). Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in 5

9 state court, 4 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 termination proceeding.... Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to [25 U.S.C. ] U.S.C. 1912(b). State Court Decisions Addressing Constitutional Due Process or Equal Protection The Nebraska Supreme Court s position on the right to counsel in termination of parental rights (TPR) cases is unclear. In Orr v. Knowles, discussed infra Part 5.C, the Nebraska Supreme Court cited a case, In Interest of Friesz, which was decided prior to Lassiter v. Dep t of Soc. Servs., 5 and had found an absolute right to counsel in TPR cases based on a reliance on cases from other jurisdictions. 337 N.W.2d 699, 706 (Neb. 1983) (citing 208 N.W.2d 259, (1973)). The court in Orr then added: The same result has been reached by several of the federal courts.... The courts in these cases rely on the fact that a substantial right is involved and the fact that the indigent individual involved faces the state as an adversary which will surely be represented by legal counsel. Under the idea of fundamental fairness such individuals must themselves be represented by counsel before being deprived of their rights. 337 N.W.2d at 706 (citing 452 U.S. 18; Davis v. Page, 640 F.2d 599 (5th Cir. 1981)). However, Lassiter did not find an absolute right to counsel in TPR cases, but rather held it was a case-bycase determination. Subsequently, in In re Interest of R.R., the court found no right to counsel for a mother in a temporary detention proceeding, in which her child was adjudicated to be in need of care, due to the diminished parental interest as compared to TPR and the fact that 4 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) contemplates that state law may not provide for appointment of counsel. Additionally, subsection (a) 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 termination of parental rights to, an Indian child shall notify 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 intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings U.S. 18 (1981). 6

10 errors can be corrected at the adjudication proceeding. 475 N.W.2d 518, 522 (Neb. 1991). However, the court cited to its prior decision in Orr for the proposition that such a situation requires the presence of counsel in termination of parental rights proceedings (although the situation to which the court referred is not made clear). Id. (citing 337 N.W.2d at 706). The court did add that [u]nder this analysis, where the parent s interest is at its highest and the State s interest at its lowest, due process may require counsel s presence in order to proceed. Id. But the court then stated: Termination of parental rights, as in Lassiter and Caha, embodies perhaps the most important point of the parent s interest; the parent stands to be permanently deprived of his or her fundamental parental rights. The State s interest is in protecting the health, safety, and welfare of the child. The stakes affected by an erroneous decision are high the parent s rights in the child are severed completely and permanently. The holdings of Lassiter and Caha recognize that in this situation, due process prohibits proceeding without counsel. Id. It appears, therefore, that the absolute right to counsel in TPR proceedings is based on a misconception about the holding in Lassiter. B. Appointment of Counsel for Parent Privately Initiated Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection In Poll v. Poll, the Nebraska Supreme Court held that a litigant had no federal due process right to court appointed counsel in a post-dissolution proceeding to adjust parental visitation. 588 N.W.2d 583, 588 (Neb. 1999). The court emphasized that in such cases the weapons of the state have not been marshaled and no threat exists of the severe deprivation that triggers the appointment of counsel in civil and criminal cases. Id. Similarly, in Caynor v. Caynor, the court held that an indigent prisoner had no right to counsel in a battle over visitation of his children, stating that there is no authority which requires the appointment of counsel to represent him in a private civil matter, without providing further analysis. 327 N.W.2d 633, 635 (Neb. 1982). C. Appointment of Counsel for Child State-Initiated Proceedings In Nebraska counties with a population of under 150,000 residents, there is a right to appointed counsel in all juvenile proceedings (which includes both abuse/neglect and termination of parental rights): 7

11 when any juvenile shall be brought without counsel..., the court shall advise such juvenile and his or her parent or guardian of their right to retain counsel and shall inquire of such juvenile and his or her parent or guardian as to whether they desire to retain counsel. The court shall inform such juvenile and his or her parent or guardian of such juvenile s right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an attorney to represent such juvenile[.] See Neb. Rev. Stat (1)(a). 6 In all juvenile proceedings: (3). The court shall appoint an attorney as guardian ad litem. A guardian ad litem shall act as his or her own counsel and as counsel for the juvenile, unless there are special reasons in a particular case why the guardian ad litem or the juvenile or both should have separate counsel. In such cases the guardian ad litem shall have the right to counsel, except that the guardian ad litem shall be entitled to appointed counsel without regard to his or her financial ability to retain counsel. Whether such appointed counsel shall be provided at the cost of the county shall be determined as provided in subsection (1) of this section. For juveniles transitioning out of foster care who need additional services, the Nebraska Young Adult Bridge to Independence Act provides a right to counsel: If desired by the young adult, the young adult shall be provided a courtappointed attorney who has received training appropriate to the role. The attorney s representation of the young adult shall be client-directed. The attorney shall protect the young adult s legal rights and vigorously advocate for the young adult s wishes and goals, including assisting the young adult as necessary to ensure that the bridge to independence program is providing the young adult with the services and support required under the... Act. For young adults who were appointed a 6 In counties with a population of 150,000 residents or more, the right to appointed counsel is limited to juvenile delinquency and truancy proceedings. See (1)(b). See also infra 5.D. 8

12 guardian ad litem before the young adult attained nineteen years of age, the guardian ad litem s appointment may be continued, with consent from the young adult, but under a client-directed model of representation. Before entering into a voluntary services and support agreement and at least sixty days prior to each permanency and case review, the independence coordinator shall notify the young adult of his or her right to request a client-directed attorney if the young adult would like an attorney to be appointed and shall provide the young adult with a clear and developmentally appropriate written notice regarding the young adult s right to request a client-directed attorney, the benefits and role of such attorney, and the specific steps to take to request that an attorney be appointed if the young adult would like an attorney appointed (1). See also (2)(d) ( At the independence hearing, the court shall advise the child about the bridge to independence program, including, if applicable, the right of young adults in the... program to request a court-appointed, client-directed attorney under subsection (1) of section and the benefits and role of such attorney[.] ). Federal Statutes and Court Decisions Interpreting Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 7 provides the following with regard to any removal, placement, or termination of parental rights proceeding: The court may, in its discretion, appoint counsel for the child upon a finding 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 notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to [25 U.S.C. ] U.S.C. 1912(b). 7 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) contemplates that state law may not provide for appointment of counsel. Additionally, subsection (a) 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 termination of parental rights to, an Indian child shall notify 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 intervention. 1912(a). These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 9

13 The federal Child Abuse Prevention and Treatment Act provides: A State plan submitted under paragraph (1) shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including... an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes... provisions and procedures requiring that in every case involving a victim 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 childhood, child, and adolescent development, and who may be an attorney 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)(B)(xiii). D. Appointment of Counsel for Child Privately Initiated Proceedings For the establishment of a guardianship of a minor, [i]f, at any time in the proceeding, the court determines that the interests of the minor are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen or more years of age. See Neb. Rev. Stat (d). See also (c) (same for termination of guardianship). In In re Guardianship of Brydon P., the high court observed that does not authorize payment of attorney fees for the ward s attorney when the ward is a minor. 838 N.W.2d 262, 268 (Neb. 2013). Notably, , enacted in 2016, requires all guardians ad litem appointed pursuant to the Nebraska probate code to be attorneys, see (1)(a), while subsection (3) provides: A guardian ad litem appointed pursuant to the Nebraska Probate Code may act as his or her own counsel and as counsel for the person who is the subject of the guardianship, conservatorship, or other protective proceeding unless such person obtains his or her own counsel or there are special reasons why the guardian ad litem or the person who is the subject of the proceeding should have separate counsel. In such cases, the guardian ad litem shall have the right to counsel and shall be entitled 10

14 42-358(1). to have the court appoint counsel for him or her without regard to his or her financial ability to retain counsel. With respect to private custody disputes: The court may appoint an attorney to protect the interests of any minor children of the parties. Such attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify on matters pertinent to the welfare of the children. The court shall by order fix the fee... for such attorney, which amount shall be... paid by the parties as ordered. If the court finds that the party responsible is indigent, the court may order the county to pay the costs. 5. MISCELLANEOUS A. Civil Contempt Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection In Allen v. Sheriff of Lancaster Cty., the Nebraska Supreme Court found a right to counsel in contempt proceedings, stating that it had decided in Carroll v. Moore, discussed infra Part 5.B, that under the U.S. Constitution, an indigent litigant has a right to appointed counsel when, as a result of the litigation, he may be deprived of his physical liberty. 511 N.W.2d 125, (Neb. 1994) (citing 423 N.W.2d 757, (Neb. 1988)). The court s ruling in Allen is in some doubt after the U.S. Supreme Court s decision in Turner v. Rogers, 564 U.S. 431 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not especially complex ), with respect to cases within Turner s scope. B. Paternity Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection In Carroll v. Moore, the plaintiff, a putative father, argued that he had both a federal and state constitutional right to counsel in paternity proceedings. 423 N.W.2d 757, 759 (Neb. 1988). The Nebraska Supreme Court seemed to blend a federal and state constitutional analysis together and declared an absolute right to court appointed counsel in state initiated paternity proceedings. The court observed that paternity cases raise the monumental issue of the creation of parent-child relationships, that a paternity determination is res judicata, and 11

15 that [e]ven though a defendant s physical liberty is not immediately at risk if adjudged to be the father of a child in a paternity proceeding, he can lose his physical liberty in later proceedings which arise out of and are based on the initial paternity determination. Id. at 767 (emphasis in original). The court concluded that due process required the appointment of counsel, but did not specify which constitution it was addressing, although it commented at one point that it is apparent that under federal due process, the right of an indigent to courtappointed counsel may be found in either a civil or criminal context. Id. at 763. C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion A pregnant minor who seeks to bypass the parental consent requirement for an abortion has to be notified of her right to counsel and must be provided with counsel upon request. See Neb. Rev. Stat. Ann (9). Further, if the judge refuses the waiver and the minor appeals, she shall have... the right to counsel at the appellate level if not already represented. Such counsel shall be appointed by the court and shall receive a fee... to be paid [by] the county in which the proceeding was held. See (5). State and Federal Court Decisions Addressing Constitutional Due Process or Equal Protection In Orr v. Knowles, in response to a certified question from a federal district court in Nebraska, the Nebraska Supreme Court held that minors had no right to counsel in abortion judicial bypass proceedings, and relied primarily on decisions from federal courts to reach its conclusion. 337 N.W.2d 699, 706 (Neb. 1983). 8 The court s reasoning was as follows: In [judicial bypass] proceedings... there is no doubt that a minor s fundamental right to privacy is involved.... The major and controlling difference between the termination of parental rights cases and [judicial bypass] proceedings... is that the latter proceedings are not adversarial in nature. Th[e] [judicial bypass] statute does not provide that the state or anyone else will contest the minor s claim that she is mature enough to make the abortion decision herself. Rather, she will present evidence, and the judge will then make the decision as to her maturity. Since there is no adversarial aspect to these proceedings, we find that no petitioning minor, indigent or otherwise, is entitled to free court-appointed counsel as a matter of right in [judicial bypass] proceedings This was prior to the passage of Neb. Rev. Stat (1) in 1991, which provides a statutory right to counsel. 12

16 Id. (citation omitted). D. Juvenile Court Proceedings Nebraska law provides for the right to appointed counsel in all juvenile proceedings in counties with a population of under 150,000 residents: when any juvenile shall be brought without counsel..., the court shall advise such juvenile and his or her parent or guardian of their right to retain counsel and shall inquire of such juvenile and his or her parent or guardian as to whether they desire to retain counsel. The court shall inform such juvenile and his or her parent or guardian of such juvenile s right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an attorney to represent such juvenile[.] See Neb. Rev. Stat (1)(a). See also supra 4.C. In counties with a population of 150,000 residents or more, in juvenile delinquency and truancy proceedings: counsel shall be appointed for such juvenile. The court shall inform such juvenile and his or her parent or guardian of such juvenile s right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an attorney to represent such juvenile[.] See (1)(b). E. Marriage Dissolution/Divorce Proceedings 13

17 In divorce proceedings where one spouse may be mentally ill, a guardian ad litem or an attorney, or both, shall be appointed to represent the interests of such spouse. Such guardian s fee or attorney s fee, or both... shall be paid by the county if the parties are unable to do so. Neb. Rev. Stat F. Proceedings Involving Claims by or Against Prisoners State Court Decisions Addressing Constitutional Due Process or Equal Protection In Anderson v. Houston, an indigent litigant requested appointment of counsel in a habeas case challenging the way his jail sentence credit was calculated (apparently he mistakenly was released early from jail and wanted to have his time at liberty counted as part of time served). 766 N.W.2d 94, 96, 102 (Neb. 2009). He argued that he was in danger of being sent back to jail if unsuccessful in his case, and relied upon Carroll v. Moore, discussed supra Part 5.B, but the Nebraska high court was unpersuaded: Id. at 102. [T]he additional incarceration which [the prisoner] faced if unsuccessful in this action was no more than that to which he was sentenced in a criminal proceeding in which he was represented by counsel and afforded due process. The issue in this civil proceeding is whether he should be relieved of a portion of that sentence on equitable grounds stemming from the State s error in releasing him prematurely. On these facts, we do not recognize a constitutional basis for taxation of [the prisoner s] attorney fees as costs, and we conclude that the court erred in doing so. G. Forfeiture Proceedings In forfeiture proceedings for property involved in the commission of certain crimes, a person, other than the defendant, who has a claimed interest in the property may petition to intervene for the specific and limited purpose of demonstrating his [or] her... legal interest in the property and... lack of actual knowledge that such property was derived from, used, or intended to be used in violation of the relevant statutes. Neb. Rev. Stat. Ann (3). The court, on its own motion or upon application of the intervening claimant, may appoint counsel to represent such person if such person is indigent. Id. 14

18 Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes The federal Servicemembers Civil Relief Act (SCRA), which applies to each state 9 and to all civil proceedings (including custody), 10 provides: If in an action covered by this section it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember. 50 U.S.C. 3931(b)(2). Additionally, 3932(d)(1), which also applies to all civil proceedings (including custody), 11 specifies that a service member previously granted a stay may apply for an additional stay based on a continuing inability to appear, while subsection (d)(2) states: If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding. State Court Decisions Addressing Constitutional Due Process or Equal Protection In Poll v. Poll, discussed supra Part 4.B, the Nebraska Supreme Court held that, under Nebraska law, in either a criminal or a civil action, due process may require appointment of counsel where a significant right is at stake in a case ordinarily brought on by the State or where a deprivation of liberty is threatened. 588 N.W.2d 583, 587 (Neb. 1999) (articulating existing case law from prior decades; litigant had no federal due process right to court appointed counsel in post-dissolution proceeding to adjust parental visitation), overruled in part on other grounds, Gibilisco v. Gibilisco, 637 N.W.2d 898 (2002) U.S.C. 3912(a)(2) states that the SCRA s provisions appl[y] to... each of the States, including the political subdivisions thereof[.] U.S.C. 3931(a) states: This section applies to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance (a) applies to any civil action or proceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an application under this section... is in military service or is within 90 days after termination of or release from military service; and... has received notice of the action or proceeding. 15