Reist v. Bay County Circuit Judge

Decision Date01 April 1976
Docket NumberNo. 19,19
Citation396 Mich. 326,241 N.W.2d 55
PartiesCarol A. REIST, on behalf of herself and all other persons similarly situated, Plaintiff-Appellant, v. BAY COUNTY CIRCUIT JUDGE and Bay County Probate Judge, Defendants-Appellees.
CourtMichigan Supreme Court

Gary J. Kolb, Flint, Thomas J. Blackmar, Jan Armon, Bay City, Legal Services of Eastern Michigan, for plaintiff-appellant; Rose Marie Adamo, Virginia Lee, Genesee County Legal Aid Society, Flint, on brief.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Milton I. Firestone, William K. Basinger, Asst. Attys. Gen., Lansing, for defendants-appellees.

Eugene G. Wanger, Lansing, for amicus curiae.

LEVIN, Justice.

On a finding of neglect, 1 the probate court terminated Carol Reist's parental rights to her 2 1/2 year old son, Richard. Her 1-year old son, Robert, was made a temporary ward of the court and termination proceedings were set to begin in 6 months absent a showing of fitness by Reist.

Reist, who is indigent, was appointed counsel pursuant to a court rule 2 for the probate court proceedings. She requested appointment of counsel for her appeal as of right to circuit court 3 and asked that a transcript of the probate court proceedings be provided at public expense. Both the probate and circuit judges denied her requests on the ground that they were without authority to provide the assistance she sought. 4

The issues are whether an indigent parent is entitled to transcripts of neglect and termination proceedings and to assigned counsel on appeal as of right to circuit court from a decision terminating parental rights.

We conclude that the Equal Protection Clauses of the United States and Michigan Constitutions 5 require that transcripts and counsel be furnished at public expense to an indigent parent desiring to appeal as of right a decision terminating parental rights.


The constitutional right to assignment of counsel at public expense was first recognized and developed in criminal cases. The germinal case is Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527 (1932), where the United States Supreme Court declared that under the circumstances in the case before it of ignorance, illiteracy, public hostility, imprisonment and difficulty of communication with friends and family, 'the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was * * * a denial of due process within the meaning of the Fourteenth Amendment'.

The Court's holding was limited: 6 'Whether this would be so in other criminal prosections, Or under other circumstances, we need not determined.' (Emphasis supplied.) But the reasoning--based on the due process right to a hearing--adumbrated the scope of the underlying principle:

'(I)n any case, civil or criminal', a hearing historically includes 'the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. * * * He requires the guiding hand of counsel at every step in the proceedings against him.' Powell v. Alabama, supra, pp. 68--69, 53 S.Ct. at p. 64.

The subsequent history is well known. In Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942), the Court held that a claim raised in state court asserting denial of counsel 'is to be tested by an appraisal of the totality of facts in a given case' including the relative seriousness of the offense, the complexity of the issues and the defendant's maturity and ability to deal with them.

The totality of facts approach to the right to assigned counsel was abandoned for federal prosecutions in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 57 (1938), and for state prosecutions in Gideon v. Wainwright, 372 U.S. 335, 342-344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963). Johnson held that the Sixth Amendment right of an accused to enjoy the assistance of counsel required federal courts to provide counsel for indigents in criminal prosecutions. Gideon held that the Due Process Clause of the Fourteenth Amendment made the Sixth Amendment obligatory on the states.

Like Powell v. Alabama, Gideon emphasized the need to assure defendant a fair hearing: '(I)n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.'

The Court first recognized the indigent's right to access to the appellate process in Griffin v. Illinois, 351 U.S. 12, 19--20, 76 S.Ct. 585, 591, 100 L.Ed. 891, 55 A.L.R.2d 1055 (1956), where financial barriers which in practical effect precluded appellate review of an indigent criminal defendant's appeal were set aside. To obtain full, direct appellate review it was necessary to furnish a bill of exceptions or report of proceedings sometimes impossible to prepare without a stenographic transcript of the trial. The Court, invoking the Due Process and Equal Protection Clauses, declared: 'There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' 7

In Douglas v. California, 372 U.S. 353, 355, 357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963), decided the same day as Gideon v. Wainright, the Court held that to eliminate 'discrimination against the indigent' it is not enough to put aside transcript and filing fees; it is also necessary to provide the assistance of counsel in the 'one and only appeal an indigent has as of right'. 8 Reliance was placed on both the Due Process and Equal Protection Clauses.

The development of the indigent criminal defendant's right to counsel was halted in Ross v. Moffitt, 417 U.S. 600, 610--612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), where the Court held that neither the Due Process nor the Equal Protection Clause of the Fourteenth Amendment requires a state to provide counsel at public expense for discretionary appeals from the state's intermediate appellate court to its highest court or to the United States Supreme Court.

The Court was implicitly critical of predicating the right to assigned counsel for the first appeal as of right on the Due Process Clause. 9 Referring to earlier statements that the Due Process Clause does not oblige the state to provide 'any appeal at all', 10 the Court said that it is not necessarily unfair 11 to refuse to provide counsel to indigent defendants 'at every stage of the way'. '(T)here are significant differences between the trial and appellate stages of a criminal proceeding.' At trial the defendant is 'haled into court' while, 'it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or jury below'. 'Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.' Ross v. Moffitt, supra, 417 U.S. pp. 610--611, 94 S.Ct. p. 2444.

The Court concluded that to deny counsel in a discretionary application following an appeal as of right--defendant then having a transcript, a brief setting forth his claims and often an appellate court opinion--was not an 'unreasoned distinction', 12 did not result in a 'meaningless ritual' 13 or deny indigents 'an adequate opportunity to present their claims fairly within the adversarial system', 14 and did not deny equal protection. 15

It appears from the Ross v. Moffitt exegesis that an indigent criminal defendant's claim that he was denied the benefit of counsel at the trial level will be analyzed under the Due Process Clause. A claim that state-imposed financial barriers, such as the cost of transcripts and filing fees, preclude any appeal at all and a claim that counsel is required to prosecute a meaningful appeal will be analyzed principally under the Equal Protection Clause.

The basis for this distinction might be uneasiness in employing a due process analysis where access to the appellate process is sought in light of earlier statements by the Court that it would not be violative of the Due Process Clause to fail to provide any appeal at all. 16

In our view, there is little difference between the Court's due process and equal protection analyses in right-to-counsel cases. Whether the issue is 'fairness' under the Due Process Clause or 'disparity in treatment' under the Equal Protection Clause, 17 the analysis from Powell v. Alabama to Ross v. Moffitt, has been in terms of the need for and importance of counsel in making meaningful the rights to trial and acces to the appellate process. At the trial level, the question is whether denial of the 'guiding hand of counsel' 18 deprives the indigent defendant of a meaningful hearing resulting in deprivation of due process. At the appellate level, the question is whether denial of the guiding hand of counsel deprives the indigent defendant of an adequate opportunity to present his claims fairly within the adversary system resulting in deprivation of equal protection of the laws.


Reist contends that a parent's right to the care, custody, companionship and management of his or her child is a fundamental aspect of personal liberty entitled to the fullest measure of due process and equal protection and that this encompasses assistance of counsel and the provision of transcripts on appeal. Because a fundamental interest is involved, the Equal Protection Clause obliges the state to establish a...

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