Right to counsel

There is an arguable due process right to counsel for the subject of a civil commitment proceeding.  In F. J. v. State, the court quoted and relied on the language from Vitek v. Jones, 445 U.S. 480 (1980) (regarding due process right to counsel for inmate transferred to mental health facility) about the requirement of “[a]vailability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own”, even though Vitek‘s holding about counsel did not receive a majority of votes (the 5th vote recognized the need for a “qualified representative”, but not necessarily counsel). F.J., 411 N.E.2d 372 (Ind. App. 1980).

In In re Marriage of Stariha, the court cited to F.J.as evidence that “it is a defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases which triggers the right to appointed counsel.” 509 N.E.2d 1117, 1119 (Ind. Ct. App. 1987).  The Stariha court went on to say, “To meet due process requirements, therefore, appointed counsel has been required in certain circumstances, regardless of whether the action is labeled criminal or civil.” Id.

Then, in GPH v. Giles, the court held that there was no due process right to appointed counsel at the preliminary hearing for a temporary commitment. 578 N.E.2d 729 (Ind. App. 1991).  In its reasoning, the court seemed to affirm that there is in fact a constitutional right to counsel generally for civil commitment cases, stating:

We deal with whether the trial court violated GPH’s constitutional right to assistance of counsel when the court allowed GPH to appear at the preliminary hearing to determine probable cause without counsel … In deciding whether the emergency detention statute unconstitutionally denies GPH of his right to assistance of counsel, we must determine whether a state, in carrying out its parens patriae role, may limit a mental patient’s constitutional rights … The state, in exercising its parens patriae role and for the finite period specified in the emergency detention statute, may limit an alleged mental patient’s constitutional right to counsel.

GPH, 578 N.E.2d at 733.