Procedurally and Substantively Interesting Right to Counsel Case in Mass

It may be no surprise that the Massachusetts Supreme Judicial Court found a right to counsel in child adoption proceedings in which the adoption is sought by a private party, and the petition is opposed. (Follow this link, select SJC Opinions, and click on the number next to Adoption of Meahan.)

What is interesting is the procedural path that led to this resut, and the way the Mass statute defines the triggering of payment obligations of the state for counsel.

The trial judge appointed counsel (technically the Committee for Public Counsel Services is appointed).  The Committee then sought a Report to the appellate court as whether the appointment was proper, and argued in the state Supreme Court that it indeed was.

What is interesting about this is that the Massachusetts statute, General Laws, Chapter 211D,  Section 5, authorize the Committee to provide counsel when, “the laws of the commonwealth or the rules of the supreme judicial court require that a person in such proceeding be represented by counsel.”

What we are seeing here is the great wisdom of that law (enacted in 1984).  If there is a right, counsel is paid for, end of discussion.  So, if a judge ever ruled that under Turner there was a right to counsel in a particular case, the process of payment (and indeed the source of the payment) is already set up.

How much better a situation than those states in which the public defender is showing nervousness about paying for counsel in expanded situations.

States looking at their structures of entitlement to counsel should look at the Massachusetts model.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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