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

Transcription

1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings SOUTH CAROLINA 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 SOUTH CAROLINA 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...3 State Statutes and Court Decisions Interpretng Statutes...3 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings...3 State Statutes and Court Decisions Interpretng Statutes...3 D. Sex Ofender Proceedings...4 State Statutes and Court Decisions Interpretng Statutes...4 E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings...4 State Statutes and Court Decisions Interpretng Statutes CHILD CUSTODY...4 A. Appointment of Counsel for Parent State-Initated Proceedings...4 State Statutes and Court Decisions Interpretng Statutes...5 Federal Statutes and Court Decisions Interpretng Statutes...5 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...5 State Court Decisions Addressing Court s Inherent Authority...6 B. Appointment of Counsel for Parent Privately Initated Proceedings...7 State Statutes and Court Decisions Interpretng Statutes...7 C. Appointment of Counsel for Child State-Initated Proceedings...7 State Statutes and Court Decisions Interpretng Statutes...7 Federal Statutes and Court Decisions Interpretng Statutes...7 D. Appointment of Counsel for Child Privately Initated Proceedings MISCELLANEOUS...7 A. Civil Contempt Proceedings...7 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...7 B. Paternity Proceedings...7 C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Aborton...7 State Statutes and Court Decisions Interpretng Statutes...7 D. Proceedings Involving Claims by and Against Prisoners...7 State Court Rules and Court Decisions Interpretng Court Rules...7 State Court Decisions Addressing Court s Inherent Authority...7 E. Marriage Dissoluton/Divorce Proceedings...7 State Court Decisions Addressing Consttutonal Due Process or Equal Protecton...7 Law Addressing Authorizaton or Requirement to Appoint Counsel in Civil Proceedings Generally...7 ii

3 Federal Statutes and Court Decisions Interpretng Statutes...7 State Court Decisions Addressing Court s Inherent Authority...7 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 State Statutes and Court Decisions Interpretng Statutes With regard to adult guardianship proceedings, S.C. Code Ann (b) provides that unless the allegedly incapacitated person has counsel of his own choice, [the court] shall appoint an atorney to represent him in the proceedings and that atorney shall have the powers and dutes of a guardian ad litem. It is not exactly clear what the legislature intended in S.C. Code Ann (B) ( Notce of hearing must be given as provided in Secton Waiver of notce by the person alleged to be incapacitated is not efectve unless he atends the hearing or his waiver of notce is given by his atorneys or, in proceedings for removal, confrmed in an interview with the visitor, which may be done at any tme. Representaton of the alleged incapacitated person by a guardian ad litem is not necessary. (emphasis added). It may be that this language about representaton not being necessary is referring only to removal proceedings. Indeed, S.C. Code Ann , which covers pettons to remove the guardian, contains no provision for appointment of counsel for removal proceedings. Under the South Carolina Omnibus Adult Protecton Act, the state may investgate adult care-giving services in situatons in which caregivers are accused of neglectng or abusing vulnerable adults. [A]ny tme during or subsequent to an investgaton where a vulnerable adult is at substantal risk to be or has been abused, neglected, or exploited and consent to provide services cannot be obtained, the Adult Protectve Services Program may petton the family court for an order to provide protectve services.... Within ten days following the fling of a petton... the court must appoint a guardian ad litem and an atorney for the vulnerable adult.... S.C. Code Ann (B) (C). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpretng Statutes South Carolina requires the appointment of counsel for those who face involuntary hospitalizaton for mental illness. Id. S.C. Code Ann ( Within three days afer [a] 3

7 petton for judicial commitment [of a mentally ill person] is fled,... the court shall appoint counsel to represent the person if counsel has not been retained. ); see also id (D) (same for commitment of a child); Id (F) (A court that fnds probable cause for the involuntary admission of a child to a hospital for treatment because he is a danger to himself or others shall appoint counsel for the child if he has not retained counsel.... ). Additonally, S.C. Code Ann (E) provides that any court that orders emergency drug or alcohol abuse detenton shall... appoint counsel for the patent if counsel has not been retained.... ). See also id (guaranteeing a right to counsel at all stages of the [involuntary drug or alcohol commitment] proceeding ); id (requiring court to provide subject of involuntary commitment proceeding with notce of right to counsel). D. Sex Ofender Proceedings State Statutes and Court Decisions Interpretng Statutes In commitment proceedings for sexually violent predators, S.C. Code Ann (C) (1) refers to the right to be represented by counsel, but does not clarify whether this is a right to be represented by appointed counsel. E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings State Statutes and Court Decisions Interpretng Statutes An individual in South Carolina has a right to counsel if he/she faces isolaton or quarantne due to a public health emergency. S.C. Code Ann (F) (2002) ( The court must appoint counsel to represent individuals or groups of individuals who are or who are about to be isolated or quarantned pursuant to the provisions of this act and who are not otherwise represented by counsel. Payment for these appointments must be made in accordance with other appointments for legal representaton in actons arising outside of maters in this act.... ). In additon, courts must appoint counsel for individuals who are imprisoned or confned if they face isolaton due to venereal or sexually transmited disease. Id ( The person for whom isolaton is sought must be represented by counsel at all proceedings and, if he cannot aford to hire an atorney, the court shall appoint an atorney to represent him. The atorney for the person isolated must have access to any documents regarding the isolaton. ) 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initated Proceedings 4

8 State Statutes and Court Decisions Interpretng Statutes With regard to abuse and neglect proceedings, S.C. Code Ann (3) specifes that [p]arents, legal guardians, or other persons subject to any judicial proceeding are enttled to legal counsel. Those persons unable to aford legal representaton must be appointed counsel by the family court. According to S.C. Code Ann (A), [p]arents, guardians, or other persons subject to a terminaton of parental rights acton are enttled to legal counsel. Those persons unable to aford legal representaton must be appointed counsel by the family court, unless the defendant is in default.... Federal Statutes and Court Decisions Interpretng Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 1 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 In South Carolina Department of Social Services v. Vanderhorst, 287 S.C. 554, 340 S.E.2d 149 (1986), the South Carolina Supreme Court interpreted the U.S. Supreme Court s decision in Lassiter v. Dep t of Soc. Servs., 452 U.S. 18 (1981), and refused to require the appointment of counsel for indigents in all terminaton of parental rights cases as a mater of due process, although it found a due process right to counsel for the partcular parent before it. In Vanderhorst, the plaintf, Ms. Vanderhorst, allegedly abused her child. The Department of 1 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. 5

9 Social Services (DSS) brought separate actons to place her son into foster care and terminate her parental rights. Id. at 556, 340 S.E.2d at 150. Ms. Vanderhorst represented herself in these proceedings and contended that the court failed to appoint her counsel in a series of cases that eventually led to the terminaton of her parental rights. Id. at 556, 340 S.E.2d at 151. She argued that the failure to provide counsel was a violaton of due process (apparently without specifying whether she relied on the state or U.S. Consttuton). The court held that the Family Court was bound by Lassiter as is, indeed, this Court. Id. at 559, 340 S.E.2d at 152. Since Lassiter would not be binding on the state supreme court s interpretaton of the state consttuton, the court apparently viewed the due process challenge as based solely on the Fourteenth Amendment. Applying Lassiter, the court noted that Lassiter involved a situaton in which the parents were not equipped to understand detailed medical and psychiatric testmony, and that in the instant case, the petton to terminate Vanderhorst's rights was based, in part upon the factual fndings... [from] a police ofcer, a physician and four DSS witnesses.... Evidence presented included expert medical and psychological evaluatons. There can be no assurance that these factual fndings were not determinatve factors in the acton to terminate Vanderhorst's rights. Id. In additon, the court reviewed the inital order, which evidenced mental instability. Id. at 560, 340 S.E.2d at 152. In fact, Ms. Vanderhorst had lef the courtroom afer a verbal altercaton with the judge when she contested the removal order: This patern was repeated in the terminaton proceedings. The record shows that Vanderhorst's atempt at pro se representaton signifcantly compromised her positon. She did not appear answer the 1982 terminaton petton and an order of default was entered... She testfed at the 1984 moton hearing that she did not believe DSS could terminate her parental rights permanently and she felt no need to answer or to atend the hearing. Id. The court acknowledged that appointed counsel could have addressed these problems and found that the plaintf was enttled to counsel. Id. at 560, 340 S.E.2d at 153. Nevertheless, it refused to require the appointment of counsel for indigents in all terminaton of parental rights cases. Instead, the court held that Lassiter required an analysis of whether counsel should be appointed, and that cases in which appointment of counsel is not required should be the excepton. Id. State Court Decisions Addressing Court s Inherent Authority In South Carolina Dept. of Social Services v. Tharp, 312 S.C. 243, 439 S.E.2d 854 (1994), a mentally ill parent had been appointed both a GAL and an atorney by the judge in a terminaton of parental rights proceeding. While there was a statute specifcally providing for payment of the GAL s fee, there was no similar statute at the tme for payment of the 6

10 atorney s fees. The court held that [a]torney's fees are not recoverable unless authorized by contract or by statute. Id. at , 439 S.E.2d at 856. The court noted that S.C. Code Ann only allowed the court to assess fees against the state where the state did not prevail (and in this case, the parental rights of the mother had been terminated). The court s holding appears to be based on a belief that it lacked the inherent power to order the state to pay the fee in the absence of statutory authority. The court also declined to elaborate on the issue of whether the uncompensated appointment at issue was an unconsttutonal taking (although it noted the split on the issue from other jurisdictons and mentoned Dibble), statng only: It is clear from the present record that no taking occurred: Atorney was appointed to this mater in December 1990, at a very late stage of the proceedings. Here, we fnd no taking. Id. at 857; see also Roberts v. State, 318 S.C. 219, 221, 456 S.E.2d 905, 906 (1995) ( This Court recently held in [Tharp] that appointment of counsel without compensaton does not consttute a taking of property where the burden on the atorney is not excessive. ). 2 The Tharp holding regarding the court s inability to pay appointed counsel absent statutory authority has been reiterated in a number of termianton of parental rights decisions by the South Carolina Supreme Court. See e.g., Michael Scot B. v. Melissa M., 378 S.C. 452, 663 S.E.2d 58 (2008). While the court s analysis relatng to its lack of inherent power to order payment for appointed counsel clearly apply to terminaton proceedings, it is not clear from the decision whether such analysis may also apply across the board in all civil proceedings. B. Appointment of Counsel for Parent Privately Initated Proceedings State Statutes and Court Decisions Interpretng Statutes In Broom v. Jennifer J., 403 S.C. 96, 742 S.E.2d 382 (2013), the Supreme Court of South Carolina extended the reach of S.C. Code Ann (discussed supra Part 4.A) to terminaton pettons fled by a private party. The court said: Here, Mother was denied counsel because the TPR acton was a private acton rather than one fled by DSS. However, Secton (A) makes no distncton based on the party seeking the terminaton of parental rights. Rather, it provides that any indigent parent subject to a terminaton of parental rights proceeding must be provided counsel. S.C.Code (A). Thus, the denial of counsel was erroneous. 2 The court summarily dismissed a Thirteenth Amendment challenge to uncompensated appointments in Roberts,, 318 S.C. at 222, 446 S.E.2d at 907 ( an atorney admited to the Bar in this State voluntarily submits to appointment for indigent representaton by the act of taking the oath of admission [c]ourts recognizing the voluntariness of this commitment have consistently rejected a Thirteenth Amendment challenge to appointed representaton. ). 7

11 Broom, 403 S.C. at 108, 742 S.E.2d at 388. However, the Supreme Court of South Carolina went on to hold that the failure to appoint counsel was harmless, relying on the fact that a) the mother had counsel for a porton of the tme that had been used to justfy the terminaton; b) the mother did not fle a petton to return the child during a period when she did have counsel; and c) the Mother did not argue that the lack of counsel afected her ability to visit Child, nor do we see how it could have. Id. at 110, 742 S.E.2d at 389. In cases involving the relinquishment of parental rights for adopton, S.C. Code Ann (A)(2) specifes that while consent is not required for mentally incapable parents in certain circumstances, the court shall appoint a guardian ad litem for an incompetent parent for whom there has been no prior appointment and shall appoint independent counsel for an incompetent parent who is indigent. However, upon good cause shown, the court may waive the requirement for the appointment of independent counsel for an incompetent and indigent parent. C. Appointment of Counsel for Child State-Initated Proceedings State Statutes and Court Decisions Interpretng Statutes For children in abuse and neglect proceedings, appointment of a guardian ad litem is mandatory but appointment of counsel is discretonary: In all child abuse and neglect proceedings: (1) Children must be appointed a guardian ad litem by the family court. A guardian ad litem serving on behalf of the South Carolina Guardian ad Litem Program or Richland County CASA must be represented by legal counsel in any judicial proceeding pursuant to Secton (C) (2) The family court may appoint legal counsel for the child. Counsel for the child may not be the same as counsel for: (a) the parent, legal guardian, or other person subject to the proceeding; (b) any governmental or social agency involved in the proceeding; (c) the child's guardian ad litem. S.C. Code Ann (1) (2). 3 According to S.C. Code Ann (B), in a state-initated terminaton proceeding, [i]f a guardian ad litem who is not an atorney fnds that appointment of counsel is necessary to protect the rights and interests of the child, an atorney must be appointed. If the guardian ad litem is an atorney, the judge must determine on a case-by-case basis whether counsel is required for the guardian ad litem. However, counsel must be appointed for a guardian ad litem who is not an atorney in any case that is contested. 3 Untl 2010, the right to counsel for children in abuse and neglect cases was mandatory, not discretonary. 8

12 Federal Statutes and Court Decisions Interpretng Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 4 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 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). D. Appointment of Counsel for Child Privately Initated Proceedings S.C. Code Ann states that 4 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 A child subject to any judicial proceeding under this artcle must be appointed a guardian ad litem by the family court. If a guardian ad litem who is not an atorney fnds that appointment of counsel is necessary to protect the rights and interests of the child, an atorney must be appointed. If the guardian ad litem is an atorney, the judge must determine on a case-by-case basis whether counsel is required for the guardian ad litem. However, counsel must be appointed for a guardian ad litem who is not an atorney in any case that is contested. This provision should apply to private terminaton of parental rights. Although no South Carolina cases could be located that address the applicability of this provision to private terminaton cases, it very well may apply given the Supreme Court of South Carolina s ruling in Broom v. Jennifer J., 403 S.C. 96, 742 S.E.2d 382 (2013). In Broom, the Supreme Court of South Carolina extended the reach of S.C. Code Ann (a) (discussed supra Part 4.A) to fnd a right to counsel for parents in terminaton pettons fled by a private party. The court relied on the fact that (a) refers generally to a terminaton of parental rights acton. Similarly, the provision for children refers to any judicial proceeding under this artcle, and based on the reasoning of Broom, it would seem to extend to private terminatons as well as state-initated terminatons. 5. MISCELLANEOUS A. Civil Contempt Proceedings State Court Decisions Addressing Consttutonal Due Process or Equal Protecton In Price v. Turner, 387 S.C. 142, 691 S.E.2d 470 (S.C. 2010), an indigent civil contemnor facing imprisonment for failure to pay child support argued that he had a due process right to counsel under the Sixth and Fourteenth Amendments. The court disagreed, holding that [a] contemnor imprisoned for civil contempt is said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any tme by doing the act he had previously refused to do. Id. at 145, 691 S.E.2d at 472. The court conceded that in fnding no right to counsel, we are adoptng the minority positon with respect to the stance taken by other states. On appeal, the Supreme Court of the United States held that counsel is not required under the Fourteenth Amendment in situatons where the plaintf is a private party unrepresented by counsel. Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011). However, it explicitly declined to address situatons where the plaintf is either the state or represented by counsel, and also held that unusually complex cases would require counsel. Id. The U.S. Supreme Court vacated and remanded the South Carolina Supreme Court s decision, holding that Turner s incarceraton violated due process because he received neither counsel nor the beneft of alternatve procedures such as the Court described. Id. 10

14 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 State Statutes and Court Decisions Interpretng Statutes South Carolina provides minors the right to an atorney in seeking a judicial bypass of the parental consent for aborton. S.C. Code Ann (3) (On petton by a minor for access to an aborton without parental consent, the court shall appoint a guardian ad litem for the minor, taking into consideraton the preference of the minor. The minor may partcipate in court proceedings on her own behalf, but the court shall advise her that she has a right to court-appointed counsel and shall provide her with counsel upon her request. ). D. Proceedings Involving Claims by and Against Prisoners State Court Rules and Court Decisions Interpretng Court Rules S.C. R. Civ. P. 71.1(d) states that, in a postconvicton relief situaton, [i]f, afer the State has fled its return, the applicaton presents questons of law or fact which will require a hearing, the court shall promptly appoint counsel to assist the applicant if he is indigent. State Court Decisions Addressing Court s Inherent Authority In Ex parte Dibble, 279 S.C. 592, 310 S.E.2d 440 (S.C. Ct. App. 1983), a case whose ultmate holding has been adopted by the South Carolina Supreme Court, 5 two atorneys were appointed by the court to represent an inmate in a state penitentary who had raised several civil actons against the state concerning his incarceraton. The atorneys contested their appointment by claiming, frst, that the inmate did not enjoy the right to counsel as a mater of law, and second, that the court could not require the atorneys to represent an indigent civil plaintf without compensaton. The atorneys claimed that the court appointment deprived them of consttutonal rights pursuant to the 14th and 5th Amendments of the United South Carolina Consttuton. The court in Dibble found that courts have an inherent power to appoint 5 Ex parte Foster, 350 S.C. 238, 241, 565 S.E.2d 290, 291 (2002) (although court rule authorized appointment of GAL for prisoner, trial court appointed atorney instead, holding that [a]t the tme this appointment was made, the factors to be considered in making such an appointment were outlined in Ex parte Dibble.... Appellant rightly complains that the orders here are devoid of any discussion of the Dibble factors. We therefore reverse and remand the appointment order for reconsideraton. ) 11

15 counsel in civil cases and must frst weigh certain factors to determine whether appointment should be required. Specifcally, the Dibble court stated: It has been traditonally held that a lawyer, by acceptng a license to practce law, becomes an ofcer of the court and assumes the obligaton of representng, without pay, indigent defendants in criminal cases. Id. at 594, 310 S.E.2d at 441 (citng Powell v. Alabama, 287 U.S. 45 (1932)). The court conceded that other state courts had ruled that statutes requiring lawyers to serve as uncompensated counsel in civil cases as unconsttutonal. Id. Specifcally, the court addressed an Indiana Supreme Court opinion that observed: If a law should be enacted requiring every person licensed by the State to render services, or furnish the materials of their business, to paupers gratuitously, much difculty would be found in justfying a decision holding the law unconsttutonal as depriving the green grocer or restaurant operator of his goods, or as depriving the physician, or the barber, or the plumber or the electrician, or the mechanical engineer of his services, without compensaton, while adhering to a rule that licensed atorneys' services may be taken without compensaton. Id. at , 310 S.E.2d at 442 (citng Knox County Council v. State, 20 N.E.2d 405, 412 (Ind. 1940)). In distnguishing the Indiana case, the South Carolina court commented: The Indiana Supreme Court may see no diference between the services to society of green grocers, barbers, plumbers, etc., and the services of lawyers, but we do. It is possible, albeit inconvenient, for a civilizaton to exist without the services of these occupatons, but a civilizaton is not possible without a competent system to administer justce. Lawyers are an integral and necessary part of such a system, at least as we know in this country. Id. at , 310 S.E.2d at 442. The court also recognized the importance of atorneys in ataining justce for indigents. The functon of lawyers in the administraton of justce is manifestly more than merely to act as advocates for partes to disputes. Id. at 595, 310 S.E.2d at 442. The opinion argued for a stronger role for atorneys in serving the community's broader needs, statng that the practce of law is a profession- not a business or skilled trade the chief end of a profession is public service. Id. at 596, 310 S.E.2d at 443. The Dibble court found that the authority to appoint a lawyer in civil cases resides within its own inherent power: Courts have the inherent power to do all things reasonable necessary to insure that just results are reached to the fullest extent possible. Accordingly, we hold that this power must necessarily include the power to appoint lawyers to serve without compensaton where it appears reasonable necessary for the courts to do justce. Id. at 595, 12

16 310 S.E.2d at The court further noted that the appointed lawyers may be compensated from public funds, thus transferring the burden to the state where it belongs. Id. at 596, 310 S.E.2d at 443. However, the court warned that we would not require that lawyers be appointed to serve in every case. Id. at , 310 S.E.2d at 443. Instead, the court described a balance of equites in determining whether to appoint lawyers in civil cases: Before a lawyer is appointed to serve against his will and without compensaton, the court should frst review the issues presented by the case and make a fnding that the case is extraordinary because it appears appointment of counsel is necessary to render justce. The court should then determine whether the litgant is able to secure a lawyer on his own. A lawyer should be appointed only if the court fnds that the litgant is not reasonably able to do so. These two fndings, together with their legal and factual bases, should be set forth explicitly by the court in its order of appointment. Id. at 597, 310 S.E.2d at 443. Other consideratons that should be taken into account, include: whether there is any public agency that is in a positon to provide representaton (e.g., legal aid or public defender's ofce); whether there are private lawyers or organizatons willing to take the case as a pro bono mater; and whether there are lawyers who are already on the public payroll. Id. The court clarifed that this analysis is unnecessary if an atorney appointment is mandated by statute, and that the case at hand was not about whether an individual has a statutory or consttutonal right to a free lawyer. Id. at 595, 310 S.E.2d at 442 ( Indeed, it appears without queston he has none. ). Instead, the court focused on whether and under what circumstances a lawyer may be appointed pursuant the court s inherent authority to represent an indigent party. The court then remanded the instant case back to the trial court to weigh all of these factors. E. Marriage Dissoluton/Divorce Proceedings State Court Decisions Addressing Consttutonal Due Process or Equal Protecton In Washington v. Washington, 308 S.C. 549, 419 S.E.2d 779 (1992), a court allowed a husband to represent himself pro se in a property distributon hearing following a divorce. The husband argued, in part, that he had been denied due process because the court failed to provide him with counsel. The South Carolina Supreme Court commented: A due process right to counsel generally involves the deprivaton of a liberty interest. Nevertheless, certain 6 In Buckley v. Shealy, 370 S.C. 317, , 635 S.E.2d 76, 79 (2006), the South Carolina Supreme Court agreed that it was a tme honored equitable maxim that all courts have the inherent power to all things reasonable necessary to ensure that just results are reached to the fullest extent possible. 13

17 domestc proceedings notably terminaton of parental rights may in some situatons, involve a deprivaton sufcient to generate a due process right to counsel. Id. at 551, 419 S.E.2d at 780 (citatons omited). The court then held that a separaton proceeding, where one or both of the partes has invoked the State's assistance in determining marital equites, simply does not involve a deprivaton that mandates a due process right to an atorney. Further, we fnd in this situaton that the state consttuton afords no greater right to counsel than the fourteenth amendment. We fnd no consttutonal or statutory right to counsel in a proceeding such as this. Id. 14

18 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 7 and to all civil proceedings (including custody), 8 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), 9 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 In Ex parte Dibble, 279 S.C. 592, 310 S.E.2d 440 (S.C. Ct. App. 1983), discussed supra Part 5.D, a South Carolina appeals court stated (in a holding that was later adopted by the South Carolina Supreme Court): 10 Courts have the inherent power to do all things reasonable necessary to insure that just results are reached to the fullest extent possible. Accordingly, we hold that this power must necessarily include the power to appoint lawyers to serve without compensaton where it appears reasonable necessary for the courts to do justce. Id. at 595, 7 50 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 8 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. 10 See supra note 3. 15

19 310 S.E.2d at The court further noted that the appointed lawyers may be compensated from public funds, thus transferring the burden to the state where it belongs. Id. at 596, 310 S.E.2d at 443. In Dibble, two atorneys were appointed by the court to represent an inmate in a state penitentary who had raised several civil actons against the state concerning his incarceraton. The atorneys contested their appointment by claiming, frst, that the inmate did not enjoy the right to counsel as a mater of law, and second, that the court could not require the atorneys to represent an indigent civil plaintf without compensaton. The atorneys claimed that the court appointment deprived them of consttutonal rights pursuant to the 14th and 5th Amendments of the United South Carolina Consttuton. The Dibble court noted: It has been traditonally held that a lawyer, by acceptng a license to practce law, becomes an ofcer of the court and assumes the obligaton of representng, without pay, indigent defendants in criminal cases. Id. at 594, 310 S.E.2d at 441 (citng Powell v. Alabama, 287 U.S. 45 (1932)). The court conceded that other state courts had ruled that statutes requiring lawyers to serve as uncompensated counsel in civil cases as unconsttutonal. Id. Specifcally, the court addressed an Indiana Supreme Court opinion that observed: If a law should be enacted requiring every person licensed by the State to render services, or furnish the materials of their business, to paupers gratuitously, much difculty would be found in justfying a decision holding the law unconsttutonal as depriving the green grocer or restaurant operator of his goods, or as depriving the physician, or the barber, or the plumber or the electrician, or the mechanical engineer of his services, without compensaton, while adhering to a rule that licensed atorneys' services may be taken without compensaton. Id. at , 310 S.E.2d at 442 (citng Knox County Council v. State, 20 N.E.2d 405, 412 (Ind. 1940)). In distnguishing the Indiana case, the South Carolina court commented: The Indiana Supreme Court may see no diference between the services to society of green grocers, barbers, plumbers, etc., and the services of lawyers, but we do. It is possible, albeit inconvenient, for a civilizaton to exist without the services of these occupatons, but a civilizaton is not possible without a competent system to administer justce. Lawyers are an integral and necessary part of such a system, at least as we know in this country. 11 In Buckley v. Shealy, 370 S.C. 317, , 635 S.E.2d 76, 79 (2006), the South Carolina Supreme Court agreed that it was a tme honored equitable maxim that all courts have the inherent power to all things reasonable necessary to ensure that just results are reached to the fullest extent possible. 16

20 Id. at , 310 S.E.2d at 442. The court also recognized the importance of atorneys in ataining justce for indigents. The functon of lawyers in the administraton of justce is manifestly more than merely to act as advocates for partes to disputes. Id. at 595, 310 S.E.2d at 442. The opinion argued for a stronger role for atorneys in serving the community's broader needs, statng that the practce of law is a profession- not a business or skilled trade the chief end of a profession is public service. Id. at 596, 310 S.E.2d at 443. Although courts have an inherent power to appoint counsel in civil cases, the Dibble court maintained that they must frst weigh certain factors to determine whether appointment should be required: Before a lawyer is appointed to serve against his will and without compensaton, the court should frst review the issues presented by the case and make a fnding that the case is extraordinary because it appears appointment of counsel is necessary to render justce. The court should then determine whether the litgant is able to secure a lawyer on his own. A lawyer should be appointed only if the court fnds that the litgant is not reasonably able to do so. These two fndings, together with their legal and factual bases, should be set forth explicitly by the court in its order of appointment. Id. at 597, 310 S.E.2d at 443. Other consideratons that should be taken into account, include: whether there is any public agency that is in a positon to provide representaton (e.g., legal aid or public defender's ofce); whether there are private lawyers or organizatons willing to take the case as a pro bono mater; and whether there are lawyers who are already on the public payroll. Id. The court clarifed that this analysis is unnecessary if an atorney appointment is mandated by statute, and that the case at hand was not about whether an individual has a statutory or consttutonal right to a free lawyer. Id. at 595, 310 S.E.2d at 442 ( Indeed, it appears without queston he has none. ). Instead, the court focused on whether and under what circumstances a lawyer may be appointed pursuant the court s inherent authority to represent an indigent party. 17