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

AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings HAWAII 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 60610 Phone: 312-988-5765; FAX: 312-988-5483 http://www.americanbar.org/groups/legal_aid_indigent_defendants.html 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: 312-988-6102; FAX: 312-988-6030; E-mail: copyright@abanet.org. i

HAWAII 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... 2 2. SUSTENANCE... 2 State Court Decisions Addressing Court s Inherent Authority... 2 Federal Statutes and Court Decisions Interpreting Statutes... 2 3. SAFETY AND/OR HEALTH... 3 A. Domestic Violence Protection Order Proceedings... 3 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 3 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings... 4 State Statutes and Court Decisions Interpreting Statutes... 4 D. Sex Offender Proceedings... 5 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings... 5 State Statutes and Court Decisions Interpreting Statutes... 5 4. CHILD CUSTODY... 5 A. Appointment of Counsel for Parent State-Initiated Proceedings... 5 State Statutes and Court Decisions Interpreting Statutes... 5 Federal Statutes and Court Decisions Interpreting Statutes... 6 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 6 B. Appointment of Counsel for Parent Privately Initiated Proceedings... 8 C. Appointment of Counsel for Child State-Initiated Proceedings... 8 State Statutes and Court Decisions Interpreting Statutes... 8 Federal Statutes and Court Decisions Interpreting Statutes... 9 D. Appointment of Counsel for Child Privately Initiated Proceedings... 10 5. MISCELLANEOUS... 10 A. Civil Contempt Proceedings... 10 B. Paternity Proceedings... 10 State Statutes and Court Decisions Interpreting Statutes... 10 C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion... 10 D. Driver s License Revocation Proceedings... 11 State Statutes and Court Decisions Interpreting Statutes... 11 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 11 Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally... 12 Federal Statutes and Court Decisions Interpreting Statutes... 12 ii

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-2017. 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. 1

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-- (1) appoint an attorney for such person. 42 U.S.C. 3613(b). 2. SUSTENANCE State Court Decisions Addressing Court s Inherent Authority In Asaeda v. Haraguchi, 37 Haw. 583 (Haw. Terr. 1947), the Hawaii Supreme Court noted that [t]he cause shown for the appointment of Mr. Hodgson was that the workman had suffered injuries to his brain which had rendered him unable to take the necessary steps to employ counsel to appear in this court on his behalf and the appointment was made in the exercise of the inherent powers of this court and not pursuant to statutory authority. 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 System 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. Court of Appeals 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 2

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, 1183-85 (D.C. Cir. 1984). 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection The court in Naluai v. Naluai, 55 P.3d 856, 861 (Haw. Ct. App. 2002) held that there is no Sixth Amendment right to counsel in a case involving a temporary restraining order by a daughter against her mother, due to the lack of any criminal prosecution in the case. The court did not address due process. B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Statutes and Court Decisions Interpreting Statutes Hawaii grants individuals a right to counsel in cases involving adult protective proceedings: [t]he court shall appoint counsel for the dependent adult at any time where it finds that the dependent adult requires a separate legal advocate [other than a guardian ad litem] and is unable to afford private counsel. Haw. Rev. Stat. 346-234(a). For proceedings for guardianship of a person, Haw. Rev. Stat. 560:5-305(b) provides that [t]he court shall appoint a lawyer to represent the respondent in the proceeding if: (1) [r]equested by the respondent; (2) [r]ecommended by the kokua kanawai; 1 or (3) [t]he court determines that the respondent needs representation, while Haw. Rev. Stat. 560:5-406(b) 1 Haw. Rev. Stat. 560:5-102 defines kokua kanawai as an individual appointed by a court who has the role and authority granted under rule 113 of the Hawaii probate rules. Rule 113 in turn states in part that [a] Kokua Kanawai appointed in a protective proceeding shall serve as and shall be limited to serving as an extension of the court to conduct an independent review of the situation, to interview the respondent and the person seeking to be appointed conservator or guardian, and to report its findings and recommendations to the court. 3

provides identical language for guardianship of property. For guardianship review proceedings, Haw. Rev. Stat. 560:5-318(c) provides that, [e]xcept as otherwise ordered by the court for good cause, the court, before terminating a guardianship, shall follow the same procedures to safeguard the rights of the ward that apply to a petition for guardianship. This would suggest that the right to counsel would exist for guardianship termination proceedings. C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes In cases of involuntary outpatient treatment for individuals suffering from a mental health problem, mental illness, drug addition or alcoholism, the court will appoint counsel for indigent individuals who desire representation. Haw. Rev. Stat. 334-125 (involuntary outpatient services); 334-60.4(b)(6)-(7) (involuntary commitment). For petitions for assisted community treatment, 334-126(f) states: Notwithstanding chapter 802 to the contrary, the public defender or other courtappointed counsel shall represent the subject upon filing of the petition. A copy of the petition shall be served upon the public defender by the petitioner. The public defender or the court-appointed counsel may withdraw upon a showing that the subject is not indigent. If the subject does not desire representation, the court may discharge the attorney after finding that the subject understands the proceedings and the relief prayed for in the petition. Nothing in this subsection shall be construed to: (1) require the subject of the petition to accept legal representation by the public defender or other court-appointed counsel; or (2) prevent the subject of the petition from obtaining their own legal counsel to represent them in any proceeding. 2 Haw. Rev. Stat. 802-1 mirrors Haw. Rev. Stat. 334 in that it reiterates the notion that counsel will be provided for indigent individuals threatened with confinement against their will at a psychiatric or mental institution and also for individuals who are the subject of a petition for involuntary outpatient treatment. Haw. Rev. Stat. 802-1. According to the statute, counsel in these cases is typically the public defender, but the court may appoint other counsel if there is a conflict of interest, if the public defender is unable to act, or if the interests of justice so require. Id. 2 Prior to 2015, this provision read, The subject of the petition need not, but may, be represented by an attorney. If the subject desires an attorney and is indigent, or if the family court determines that the legal or factual issues raised are of such complexity that the assistance of an attorney is necessary for an adequate presentation of the merits or that the subject of the petition is unable to speak for the subject's self, the family court shall order the appointment of a public defender or other attorney to represent the subject and continue the hearing for not more than seven days. 4

D. Sex Offender Proceedings No law could be located regarding the appointment of counsel for indigent civil litigants in sex offender proceedings. However, this jurisdiction might not have a mechanism for confining sexually dangerous/violent persons. E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings State Statutes and Court Decisions Interpreting Statutes Hawaii statutory law supplies counsel for individuals who are going to be or may be quarantined. In such cases, [u]pon written request, the court shall appoint counsel at state expense to represent individuals or groups of individuals who are or who are about to be quarantined pursuant to this section and who are not otherwise represented by counsel. Haw. Rev. Stat. 325-8. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Court appointed counsel may be provided under Hawaii s Child Protective Act. Previously, the Act stated that in cases involving the welfare and custody of a child, independent counsel could potentially be appointed for any party if the party is an indigent, counsel is necessary to protect the party's interests adequately, and the interests are not represented adequately by another party who is represented by counsel. Haw. Rev. Stat. 587-34 (2008). However, 587-34 was repealed in 2010 and replaced with a version that permits (but does not require) the court to appoint counsel for the parents simply by demonstrating indigence. See Haw. Rev. Stat. 587A-17(a). 3 It should also be noted that 3 Early versions of SB 2716 (2010), which amended the Child Protective Act, would have included a mandatory appointment of counsel for the parents, but the bill was amended to keep appointment discretionary. Note, too, that Haw. Rev. Stat. 571-87(a) specifies that in family court cases generally, [w]hen it appears to a judge that a person requesting the appointment of counsel satisfies the requirements of chapter 802 for determination of indigency, or the court in its discretion appoints counsel under chapters [587A] and 346, part X, or that a person requires appointment of a guardian ad litem, the judge shall appoint counsel or a guardian ad litem to represent the person at all stages of the proceedings, including appeal, if any. Despite the first part of the sentence seemingly making appointment mandatory for anyone satisfying the indigence requirements, it appears that the discretionary provisions of 587A-17 would govern all child protective proceedings. 5

attorneys fees in child protective proceedings are capped at $3,000 before disposition and $1,000 for post-disposition review. Haw. Rev. Stat. 571-87(b). Also, with the Hawaii Supreme Court s ruling that all parents have a constitutional right to counsel in abuse/neglect and termination cases (discussed below), 587A-17 and its case-by-case approach has significantly less relevance. Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in 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 section 13 of this title. 25 U.S.C. 1912(b). State Court Decisions Addressing Constitutional Due Process or Equal Protection In In re T.M., 319 P.3d 338 (Haw. 2014), the Hawaii Supreme Court held that [p]arents have a constitutional right to counsel under article I, section 5 in parental termination proceedings and that from and after the filing date of this opinion, courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child.... [A]s soon as DHS files a petition asserting custody over a child, parents rights are substantially affected. At that point, an attorney is essential to protect an indigent parent s liberty interest in the care, custody and control of his or her children. 4 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 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 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. 6

Id. 5 Despite the Court s reference to a right to counsel in termination proceedings, the second part of the quote makes it clear that the right to counsel attaches during the abuse/neglect phase. In T.M., the trial court had refused to appoint counsel for a minor parent, and the Court of Appeals had affirmed, holding that the assistance of a GAL had been sufficient and/or that any error in refusing counsel had been harmless. The T.M. Court found that the Court of Appeals had erred in its assessment of harm and that it had been an abuse of discretion under Haw. Rev. Stat. 587A-17(a) to refuse to appoint counsel for the mother in the case. However, it noted, [t]he foregoing review of the instant case reveals the inadequacy of an approach that allows the appointment of counsel to be determined on a case-by-case basis once DHS moves to assert foster custody over a child.... Mandating the appointment of counsel for indigent parents once DHS moves for custody would remove the vagaries of a caseby-case approach. Id. Highlighting the importance of the parental interest at stake, the practical difficulties of trial judges attempting to assess at an early stage whether counsel is needed, the decisions from other states, the effect that an incorrect decision on counsel would have on a child s permanency (since it would require starting the child welfare proceeding over), and various bits from Justice Blackmun s dissent in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the Court concluded: This court has held that [t]he right to counsel is an essential component of a fair trial in the criminal context. State v. Tarumoto, 62 Haw. 298, 299, 614 P.2d 397, 398 (1980). The same considerations suggest that an attorney is necessary for a fair procedure in parental termination proceedings. Id. 6 The Court also highlighted the need for counsel early in the process, given that before the termination hearing itself, issues that may be decisive in that proceeding may have been determined subsequent to DHS attaining custody of the child. Id. In In re D.W., 155 P.3d 682 (Haw. Ct. App. 2007), Hawaii faced an apparent federal constitutional challenge to its family court pilot program for dependency cases that unbundles legal resources while at the same time ensuring competent representation and promoting the preservation of families. 155 P.3d 682, 683. The system depends heavily at the 5 One issue with the opinion is that it later states that, upon the filing date of this opinion, trial courts must appoint counsel for indigent parents upon the granting of a petition to DHS for temporary foster custody of their children. It is thus unclear whether the right attaches prior to the filing of a petition for temporary custody or only after such a petition is granted, as such language conflicts with the language above that says, courts must appoint counsel for indigent parents once DHS files a petition to assert foster custody over a child. 6 The T.M. Court s ruling followed earlier opinions that had criticized the Lassiter approach but had not reached the state constitutional issue, such as In re A Children, 193 P.3d 1228 (Haw. Ct. App. 2008). 7

pre-trial stage on non-attorney guardians ad litem who have access to attorney case managers and paraprofessional staff. Id. The pilot program required appointment of consulting attorneys during the preliminary stages of a case (subject to the best interests of the child ), and full representation of court-appointed counsel during the trial stage. Id. 7 The program faced judicial scrutiny when a mother, who had been divested of her parental rights under Haw. Rev. Stat. 587-2 and 587-73, appealed and contended that she was entitled to full representation of counsel rather than the representation provided by the new program. Id. She argued that the fact that the pretrial attorney was only a consulting attorney meant it was limited representation, and gave as an example that the consulting attorney suggested to the court that he could only seek a subpoena on the mother s behalf if the court paid for it. Id. at 505. The mother cited only Lassiter and Santosky v. Kramer, 455 U.S. 745 (1982), in support, and the court of appeals apparently treated the case as one of federal constitutional interpretation only. In evaluating the constitutionality of the program, the Intermediate Court of Appeals of Hawaii held that while the pilot program limited a consulting counsel s powers and duties, the framework did not ultimately deny the appellant mother her constitutional right to due process, but instead provided her with full representation of counsel. Id. 8 In so holding, the court quoted extensively from Lassiter, but did not actually undertake a Mathews v. Eldridge, 424 U.S. 319, 335 (1976), analysis; instead, it simply concluded at the end of the block quote that the mother had the full benefit of representation. Id. B. Appointment of Counsel for Parent Privately Initiated Proceedings No law could be located regarding the appointment of counsel for indigent parents in privately initiated child custody proceedings. C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Court appointed counsel may be provided under Hawaii s Child Protective Act. Previously, the Act stated that in cases involving the welfare and custody of a child, a guardian ad litem would be appointed for the child and that independent counsel could potentially be 7 The memorandum explaining the new pilot program stated that, [i]f an eligible parent requests a trial, the court will appoint a different attorney who will provide full representation to that parent for trial purposes until discharged by the court. 8 The Court also rejected without analysis the mother s argument about the consulting attorney s subpoena power, only stating that her assertion was not supported by the record. 8

appointed for the child if the party is an indigent, counsel is necessary to protect the party's interests adequately, and the interests are not represented adequately by another party who is represented by counsel. Haw. Rev. Stat. 587-34 (2008). However, 587-34 was repealed in 2010 and replaced with a version that permits (but does not require) the court to appoint counsel for parties (other than the parents) if it is proven that it is in the child s best interests. See Haw. Rev. Stat. 587A-17(a). 9 See also Haw. Rev. Stat. 587A-4 (definition of party includes children). It should also be noted that attorneys fees in child protective proceedings are capped at $1,500 before disposition and $500 for post-disposition review. Haw. Rev. Stat. 571-87(b) (2008). Haw. Rev. Stat 560:5-205(c) provides a discretionary right to counsel for the child in a guardianship proceeding: If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained fourteen years of age. Federal Statutes and Court Decisions Interpreting Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 10 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 section 13 of this title. 25 U.S.C. 1912(b). The federal Child Abuse Prevention and Treatment Act (CAPTA) provides: 9 See supra note 2. 10 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 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 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. 9

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 (B) 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-- (xiii) 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). D. Appointment of Counsel for Child Privately Initiated Proceedings No law could be located regarding the appointment of counsel for children in privately initiated child custody proceedings. 5. MISCELLANEOUS A. Civil Contempt Proceedings No law could be located regarding the appointment of counsel for indigent litigants in civil contempt proceedings. B. Paternity Proceedings State Statutes and Court Decisions Interpreting Statutes Haw. Rev. Stat 584-19(a) specifies that in paternity cases, [t]he court may appoint counsel for a party who is financially unable to obtain counsel. C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving judicial bypass of parental consent for a minor to obtain an abortion. However, this jurisdiction might be one that does not require parental consent. 10

D. Driver s License Revocation Proceedings State Statutes and Court Decisions Interpreting Statutes In Norton v. Admin. Dir. of the Court, State of Hawaii, 908 P.2d 545 (Haw. 1995), involving an administrative hearing for a DUI-related suspension of a driver s license, the petitioner argued that he had a statutory right to counsel under Haw. Rev. Stat. 286-259(a) (which has since been repealed), which stated at the time that [t]he arrestee may be represented by counsel. Id. at 549 (emphasis added) (citing Haw. Rev. Stat. 286-259(a)). But the court interpreted the statute as a permissive right to hire counsel rather than as indicating a right to counsel at all stages of the proceedings against him similar to the criminal context or a right to government-appointed counsel. Id. The court s interpretation of the statutory language of Haw. Rev. Stat. 286-259(a) as a permissive right to hire counsel can be contrasted with other Hawaii statutes that require that counsel shall be appointed, such as the Child Protective Act and the Interstate Compact on Juveniles. See Gray v. Admin. Dir. of the Court, 931 P.2d 580, 591 (Haw. 1997) ( [W]here the verbs shall and may are used in the same statute, especially where they are used in close juxtaposition, we infer that the legislature realized the difference in meaning and intended that the verbs used should carry with them their ordinary meaning. ). State Court Decisions Addressing Constitutional Due Process or Equal Protection The Norton court also addressed the issue of extending the Sixth Amendment right to counsel from criminal cases to civil cases. In that case, the petitioner-appellant, Norton, argued that the constitutional right to counsel extended to a civil administrative driver s license revocation hearing. Id. at 548. The court noted that the right to counsel has its constitutional basis both explicitly in the Sixth Amendment and in the due process guarantee of the Fourteenth Amendment. Id. at 548 n. 5. It held, however, that the petitioner failed to assert a colorable argument to support his due process claim at an administrative driver s license revocation hearing, where the court determined that the procedure of the Hawai i Administrative Revocation Program provides drivers with adequate due process safeguards. Id. at 538 n. 5. Thus, the court only considered the Sixth Amendment right to counsel argument. Id. To that end, the court held that the Sixth Amendment right to counsel is inapplicable to a driver s license revocation hearing and unequivocally explained that [t]he sixth amendment right to counsel applies only to criminal proceedings. Id. (quoting State v. Severino, 537 P.2d 1187, 1189 (Haw. 1975)) (emphasis added). The court emphasized that [t]he proceedings to review the revocation of a driver s license is a civil administrative proceeding, separate and distinct from the criminal proceedings for DUI. Id. 11

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 11 and to all civil proceedings (including custody), 12 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 USCS 3931(b)(2). Additionally, 50 USCS 3931(d)(1), which also applies to all civil proceedings (including custody), 13 specifies that a service member previously granted a stay may apply for an additional stay based on a continuing inability to appear, while 522(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. 11 50 USCS 3912(a) (formerly 50 App. U.S.C.A. 512(a)) states, This Act [50 USCS 3901 et seq.] applies to- - (2) each of the States, including the political subdivisions thereof 12 50 USCS 3931(a) (formerly 50 App. U.S.C. 521(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. 13 50 USCS 3932(a) (formerly 50 App. U.S.C. 522(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-- (1) is in military service or is within 90 days after termination of or release from military service; and (2) has received notice of the action or proceeding. 12