This is interesting. On December 6, 2011, the Montana Supreme Court unanimously entered an Order appointing counsel for a mother in a guardianship case. The trial court had refused, citing lack of satutory authority. The state Supreme Court held the the trial court had inherent authority to appoint pro bono counsel, and went on to order that it should be done.
Obviously, this is only a very first step, but it is one with much potential. Note for example, the pending processes in the Wisconsin Supreme Court about a possible broad Court Rule dealing with appointment of counsel. The Memorandum in Support (at pages 21-32) relies on inherent authority. It should be noted that, as the Wisconsin Access to Justice Board Blog notes:
At the administrative conference [on October 4, held in public] there was not a majority of justices who supported moving forward on the proposal as set out in the petition. However, only two justices indicated that they would deny the petition outright.
In conference, the justices held a wide ranging discussion about: (1) whether the right(s) implicated by the request were constitutional, a matter of policy or both; (2) the significance and scope of the court’s Joni B decision on appointment of counsel in CHIPS cases; (3) the possible burden on the court system of handling requests for appointment of counsel; and (4) how to pay for a program of court appointed counsel that could cost Wisconsin counties at least $56 million. It was the latter issue, the likely cost to the counties, that loomed largest in the discussion. . . .
Discussion of the petition in the court’s conference ended with Chief Justice Abrahamson’s request that Commissioner Julie Rich prepare a draft rule incorporating some elements from Petition 10-08 that the Chief Justice could present for the court’s future consideration.
So, maybe the tea leaves suggest a very limited use of inherent authority. Maybe Turner will set the parameters.
Wisconsin Update: On Feb 24, the Wisconsin Supreme Court rejected the Petition, while making various encouraging noises about a pilot project. They also made clear that the rejection did not undercut prior caselaw on inherent authority.