Discretionary appointment of counsel

In Graves v. Adult & Family Services Div. 76 Or.App. 215 (Ct. App. 1985), review denied, 300 Or. 605 (1986), a mentally ill litigant argued that he had a state and federal due process right to counsel at an administrative hearing to contest the termination of his unemployment benefits. He pointed to the U.S. Supreme Court decision in Goldberg v. Kelly, 397 U.S. 254, 267 (1970), requiring the process due in pre-termination proceedings. In Graves, the state argued that the claimant had sufficiently understood the proceedings and therefore did not need counsel, but in addition to questioning this contention, the court commented, "ex post facto determinations are necessarily difficult, and it is well nigh impossible to discern from the record what difference adequate representation would have made in a given case . . . ."

The court then applied the Lassiter factors, including the presumption against counsel except where physical liberty is at stake, and found that his interest in the benefits were "commanding", given that they were his "'means to obtain essential food, clothing, housing and medical care [,] * * * the very means by which to live.'" The court also noted that while appointment of counsel for the claimant might force the state to pay for counsel for itself as well as the claimant, the same was true if the claimants had retained counsel, and additionally the state had an interest in avoiding mentally ill people going into expensive institutions as the result of being denied benefits. Finally, in analyzing the risk of erroneous deprivation, the court rejected the claimant's contention that mentally ill claimants were per se unable to represent themselves, commenting, "Many mentally ill persons, with psychiatric therapy and medication and with financial assistance, are able to function reasonably well."  Therefore, the court held, it would depend on the particular litigant.

The Graves court concluded that "mentally ill persons may have a right to counsel, determinable on a case-by-case basis by the AFSD hearings officer." It noted that since the proceedings are not adversarial, the hearing officer should attempt to assist the mentally ill claimant, which in turn would "obviate the necessity of appointing counsel at the outset of every instance . . . ." It went on to describe this secondary holding:

[W]hen a claimant is mentally ill, is not represented by counsel and appears to be unable to address the issues involved in the hearing, the hearings officer must develop the record adequately to determine whether the claimant is entitled to benefits, not just decide the case on an inadequate record. If reasonably necessary, he must call witnesses on the applicant's behalf or make arrangements for the applicant to call them. If the hearings officer is unable to get sufficient information from the applicant to develop an adequate record by the hearing process, counsel must be appointed.

The court then remanded the instant case back to the lower court to determine whether counsel should be appointed, especially in light of the fact that the hearing officer had taken a passive role in terms of helping the claimant.