Family Div. Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie
| Citation | 233 U.S.App.D.C. 168,725 F.2d 695 |
| Decision Date | 06 January 1984 |
| Docket Number | No. 83-1016,COURT-D,83-1016 |
| Parties | FAMILY DIVISION TRIAL LAWYERS OF the SUPERIORC., INC., et al., Appellants, v. H. Carl MOULTRIE, Chief Judge, D.C. Superior Court, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-01373).
David J. Ontell, Washington, D.C., for appellants.
Lutz Alexander Prager, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for appellees.
Before WALD, MIKVA and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
This appeal is from the district court's grant of summary judgment for the defendant-appellees on the basis that the appellants failed to state a valid constitutional claim of involuntary servitude, a "taking" of property, or a denial of equal protection. 1 The appellants--three individual attorneys who regularly request assignment of cases in the Family Division of the Superior Court of the District of Columbia for which the District pays attorney fees and an association of lawyers who practice before the Family Division--challenged the practices by which the superior court appoints counsel to represent indigent parents in neglect proceedings without reimbursement of any kind. The district court rejected the appellants' challenges to these practices on the basis of their facial unconstitutionality, and further held that the appellants' failure to formally and specifically take issue with the appellees' statement of material facts in their cross-motion for summary judgment justified granting that motion with regard to the constitutional challenges based on the operation of the assignment system. While we agree that the superior court's assignment system is not unconstitutional on its face, we reverse, in part, because we find that the district court erroneously concluded that no material issue of fact was involved as to the claim that the system's effect in practice is so burdensome on a small segment of the bar as to constitute a violation of those lawyers' fifth amendment rights.
Since 1970, the D.C.Code has provided that in child neglect and parental termination proceedings 2 both parents and children (1) When a child is alleged to be neglected or when the termination of the parent and child relationship is under consideration, the parent, guardian or custodian of the child named in the petition or in a motion to terminate is entitled to be represented by counsel at all critical stages of the proceedings, and, if financially unable to obtain adequate representation, to have counsel appointed in accordance with rules established by the Superior Court of the District of Columbia.
must be provided with appointed counsel if the parents are financially unable to obtain adequate representation. The relevant statute reads:
(2) ... The Division shall in every case involving a neglected child which results in a judicial proceeding, including the termination of the parent and child relationship ..., appoint a guardian ad litem who is an attorney to represent the child in such proceedings. 3
Until October 1, 1982, no funds were available to pay counsel appointed to represent indigent parents in neglect cases. 4 Since then, limited funds have been appropriated for this purpose. 5 Presently, counsel for both children and parents in neglect proceedings are paid $30 for each court appearance. Attorney compensation, however, is subject to the following limits: $100 per child-neglect case until disposition of the neglect petition; $60 for each review of a child-custody placement pursuant to a finding of neglect if the review is within two years of the original neglect disposition or if the child is under 6 years old; $30 for all other reviews; $100 for termination proceedings. Letter from the Honorable Gladys Kessler, supra note 4. No funds are provided for expert witnesses or investigative services.
Superior court rules implementing the statutory mandate that counsel be appointed to represent indigent parents provide:
Assignment of counsel shall be made by the Division from a list of attorneys prepared and maintained by the Division. Separate counsel shall be assigned to represent a child alleged to be neglected and his parents, guardian or custodian whenever they are financially unable to obtain adequate representation. In cases where the child and his parents, guardian or custodian are financially able to obtain adequate representation but have not retained counsel, the Division may appoint separate counsel and order the payment of reasonable attorneys' fees in accordance with SCR-Neglect 27 or may appoint counsel for the child and direct his parents, guardian or custodian to retain private counsel for themselves within a specified period of time. In making appointments the Division shall wherever possible D.C. S.C.R.-Neglect 20(b). In practice, counsel are appointed to represent indigent parents from a list of lawyers who, during the previous month, have requested assignments of juvenile delinquency cases for which compensation is provided under the District of Columbia's Criminal Justice Act (CJA). 6 This list is maintained by the D.C. Public Defender Service.
obtain the same attorneys, if any, who represented the child and the child's parents, guardian or custodian in previous appearances before the Division.
When an attorney registers for compensated CJA work in the Family Division, he is notified that he may be appointed to neglect cases on a pro bono publico basis. Affidavit of W. Anthony Fitch, Deputy Director of the Public Defender Service for the District of Columbia (Oct. 20, 1982). The Public Defender Service and the judges of the superior court repeatedly warn attorneys that they will not be appointed to CJA-compensated cases if they do not also agree to represent indigent parents in neglect proceedings.
David Sitomer, an individual attorney-appellant in this case, as the appointed attorney for parents in two neglect proceedings, filed a motion in superior court seeking administrative relief and compensation for services. He alleged that his uncompensated appointment as parents' counsel in many neglect proceedings was confiscatory and an unconstitutional "taking" of his property without just compensation. See In the Matters of N.P. and L.W., Nos. 404-79, 418-79 (D.C.Super.Ct. June 14, 1982). Superior Court Judge Block ordered Sitomer to present evidence on how the appointment system in neglect cases actually worked and what its effect on appointed lawyers was. Judge Block also denied petitions to intervene in the proceeding filed by thirteen other lawyers, including the two individual appellants in this case, and by Sitomer in his capacity as President of the Family Division Trial Lawyers Association. Addressing Sitomer's individual claim, the court concluded that Id. at 3-4. Although Judge Block found no violation of Sitomer's constitutional rights, he did find the practice by which counsel for parties in neglect cases is appointed was inadequate and unfair in several respects:
While it is obvious that this practice has been bureaucratically expedient, it is just as clear that it has insured neither the delivery of the appropriate level of representation to all parties in neglect actions nor equitably distributed the burdens of pro bono representations among those attorneys who practice before the Family Division. Accordingly, the neglect appointment list should be expanded beyond its present scope.
Initially, Sitomer appealed the superior court decision denying him relief, but later voluntarily abandoned that appeal claiming he could not afford a transcript and other costs of the appeal. The other appellants
appealed the district court's denial of intervention but they too abandoned their appeals claiming insufficient funds to cover court costs. See Order Dismissing Appeals, In re N.P., Jr., No. 82-908 (D.C.Ct.App. Aug. 14, 1983); Motion to Withdraw Appeal, In re N.P., Jr., No. 82-908 (D.C.Ct.App. June 15, 1983).
Before moving to withdraw their appeals in the D.C. Court of Appeals, Sitomer and the other lawyers, along with the Family Division Trial Lawyers Association, filed a new complaint in federal district court alleging that the practices by which the superior court assigns counsel to represent parents in neglect proceedings constitutes involuntary servitude and a "taking" of property without just compensation because it requires attorneys to work for nothing. They also claimed that placing the burden of representing indigent parents exclusively on Family Division attorneys who depend on CJA-compensated cases rather than spreading it among other D.C. bar members or even other non-Family Division CJA-compensated attorneys amounts to so disproportionate a burden as to constitute a "taking" as well as a denial of equal protection of the law, in violation of the fifth amendment. The appellants seek damages for past financial losses for uncompensated appointments and an injunction against further inadequately compensated appointments.
The district court dismissed the thirteenth amendment and "taking" claims stating, first, that compelled public service is not, in and of itself, involuntary servitude, even when imposed on a...
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