Kansas Supreme Court recognizes right to counsel in sex offender commitment cases
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
08/17/2012, Litigation, Sexually Dangerous Persons - Commitment
In In re Ontiberos, 287 P.3d 855, (Kan. 2012), the Kansas Supreme Court reversed the Court of Appeals and found a federal due process right to counsel in sexually violent predator commitment proceedings.
The court applied the Mathews v. Eldridge test, and while it acknowledged the Supreme Court's Turner v. Rogers decision, it found more applicability in Vitek v. Jones, 445 U.S. 480 (1980) (finding that prisoner transferred involuntarily to mental health facility had right to "independent assistance"). It then looked at the interest at stake as compared to Vitek:
[I]t is difficult to conceive of a stronger liberty interest because Ontiberos' confinement has the potential of being indefinite and it includes participation in a sex offender treatment program while committed to state custody. Ontiberos' interest is certainly greater than the prisoner's interest in Vitek because Ontiberos would be free from state custody were it not for the KSVPA proceeding, whereas Vitek would have been transferred back to prison.
The court then found that the risk of error was lower because of several procedural protections, but pointed out that Turner emphasized the importance of whether the state is a party and/or represented by counsel, as is the case in the sexually violent person proceedings. Finally, the court concluded that "The burden of providing counsel is small when compared to the substantial liberty issue at risk here."
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: no