Reversing an appeals court ruling, the Washington Supreme Court today found that a child has no right to counsel under the due process clause of the state or federal constitutions at initial truancy hearings. The ACLU of Washington submitted a friend-of-the-court brief in the case (Bellevue v. E.S.) supporting the right to counsel at such hearings. The brief said that the child’s liberty, privacy, and education were all at stake, and that the risks of error – even in initial truancy proceedings – warranted the child’s right to be represented by counsel.
“Children do not have the same ability to understand and protect their legal rights as adults. It is very disappointing that our state Supreme Court instead viewed the issues at truancy hearings as so ‘uncomplicated and straightforward’ that a child could handle them alone,” said ACLU-WA staff attorney Nancy Talner. “The issues in a truancy case are significant and may determine the future course of a child’s education. Yet we have seen in too many cases that when a child is brought to truancy court without an attorney, the complex reasons the child is missing school – which could be an undiagnosed disability, bullying, or family problems – remain unexamined,” explained Talner.
Just this week, the US Supreme Court said it was “common sense” that children may feel more coerced than adults by authority figures. The Court (in JDB v. North Carolina) held that a person’s young age (13, just like ES) is relevant in determining whether they would have felt free to leave when interrogated by two principals and two police officers at school. The Court ruled the child should have been informed of his rights before being questioned about a crime. (For more information, see http://www.aclu.org/blog/criminal-law-reform-racial-justice/supreme-court-says-cops-and-courts-must-consider-childs-age.)
School districts file truancy petitions against children from ages 8 to 18, requiring them to go to court and face a judicial officer. The petition is supposed to explain the steps the district has taken to remedy truancy prior to seeking the court’s assistance, but without an attorney a child can’t tell whether the petition meets legal requirements. Without an attorney, children faced with truancy court are unlikely to know how to gather evidence or file an appeal. They are asked to sign important legal papers that subject them to house arrest, work crew, transfers to alternative schools or even incarceration if they violate any part of the court’s order, yet they are not legally considered capable of signing other contracts. In this case, the child, “E.S.,” was accompanied at the hearings only by her mother, who spoke very little English; she had no counsel or any other advocate.
In its ruling, the Washington Supreme Court noted that the child has the right to counsel at contempt hearings, and concluded that there are no significant interests at stake warranting appointment of counsel at the initial hearing where the determination is made whether the child is “truant” under our state statute. The Court accepted the state’s argument that the statute is designed to protect the child’s right to an education and therefore dismisses the argument that an attorney would be necessary to protect that right at a truancy proceeding.
Justice Madsen filed a short concurring opinion, agreeing that counsel is not constitutionally required but recommending that the legislature provide counsel in order to “facilitate a better outcome in these proceedings for the child, the family and for the district as well,” consistent with a recommendation made by the ABA House of Delegates that states provide counsel to children and youth at all stages of status offence proceedings. Justice Chambers wrote a dissent, joined by Justice Sanders.
The Washington Court of Appeals in 2009 had ruled unanimously that children have a constitutional right to counsel in initial truancy proceedings. “A child’s interests in her liberty, privacy, and right to education are in jeopardy at an initial truancy hearing,” ruled the court, “and she is unable to protect these interests herself.”
The appeals court ruling explained that children may be intimidated in court proceedings, cannot be expected to understand either the arguments or the vocabulary, and may be unwilling to explain the causes of their truancy to strange adults or in fact parents. The ACLU had pointed out that attorneys could help the child and her parents understand the proceedings, assist in discovering the reasons for the child’s truancy, and ensure that the child and her parents receive adequate legal protections during the proceedings.
Attorney Robert Boruchowitz of the Ronald A. Peterson Law Clinic at Seattle University represented E.S. in her appeal. Legal director Sarah Dunne and staff attorneys Nancy Talner and Rose Spidell wrote the amicus for the ACLU, assisted by cooperating attorneys Alyse Bertenthal and JuNelle Harris of Keker & Van Nest LLP.