                   IN THE SUPREME COURT OF IOWA

                             No. 64 / 04-0981

                          Filed September 8, 2006


STATE PUBLIC DEFENDER,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,

      Defendant.


      Certiorari to the Iowa District Court for Polk County, Constance

Cohen, Judge.



      Plaintiff claims district court acted illegally in ordering state public

defender to pay fees of attorneys appointed as guardians ad litem for

parents in child-in-need-of-assistance and termination-of-parental-rights

cases. WRIT SUSTAINED.



      Thomas G. Becker, State Public Defender, and Julie Miller, Assistant

State Public Defender, for plaintiff.



      Linda Channon Murphy, Des Moines, for defendant.
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TERNUS, Justice.

      The plaintiff, state public defender, challenges a district court order

that required the state public defender to pay the fees of attorneys

appointed as guardians ad litem for parents in several child-in-need-of-

assistance (CINA) and termination-of-parental-rights (TPR) cases. He claims

the statutes specifying costs payable from the indigent defense fund

administered by his office do not authorize the use of this fund to

compensate attorneys appointed as guardians ad litem for indigent parents

in juvenile proceedings. The guardians ad litem, advocating on behalf of the

defendant, concede there is no statutory authority for payment of their fees

by the state public defender. They argue, however, that the parents they

represented were constitutionally entitled to guardians ad litem, and

therefore, the state is obligated to pay the guardians. They claim parents’

due process right to a meaningful hearing and right to the equal protection

of the laws are denied if impaired parents are not provided guardians ad

litem. Upon our consideration of the parties’ arguments, we conclude there

is no statutory or constitutional basis to order the guardians’ fees paid from

the indigent defense fund. Therefore, we sustain the writ.

      I. Background Facts and Proceedings.
      This original certiorari action involves several cases filed in the

district court pursuant to Iowa Code chapter 232 (2003) in which the state

sought to have children declared in need of assistance or to have the

parents’ rights to their children terminated. In each case, the district court

appointed an attorney and a separate guardian ad litem for one or both of

the parents based on the parents’ incompetency. The attorneys serving as

guardians ad litem submitted their bills for services rendered in these

proceedings to the state public defender for payment. After the state public

defender refused to pay the guardians’ fees, claiming they were not payable
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from the indigent defense fund, the district court entered an order requiring

the state public defender to pay the contested fees. The legality of that

order is now challenged in this certiorari action.

      II. Scope of Review.

      Our review is guided by the following principles:

            A writ of certiorari lies where a lower board, tribunal, or
      court has exceeded its jurisdiction or otherwise acted illegally
      . . . . “Illegality exists when the court’s findings lack
      substantial evidentiary support, or when the court has not
      properly applied the law.” Our review of the district court’s
      action is therefore for correction of errors of law.

State Pub. Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d

280, 282 (Iowa 2001) (citations omitted).

      “If constitutional issues are raised, however, we independently

evaluate the totality of the evidence, and our review is de novo.” Pfister v.

Iowa Dist. Ct., 688 N.W.2d 790, 794 (Iowa 2004). We presume a challenged

statute is constitutional. Id. The party making the constitutional challenge

must “demonstrate there is no reasonable basis upon which the statute can

be sustained.” Id.

      III. Discussion.

      The state public defender argues the costs incurred for the

compensation of a court-appointed guardian ad litem for an adult parent in

CINA and TPR cases are not payable out of the indigent defense fund

administered by his office. The guardians respond that because a guardian

ad litem was constitutionally required in each case, the court is obligated to

extend the coverage of the indigent defense fund to compensate the

guardians ad litem.      In addition, the guardians assert they served as

guardians ad litem with the understanding they would be paid pursuant to

the contracts they had with the state public defender. See Iowa Code §

13B.4(3) (allowing state public defender to “contract with [attorneys] for the
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provision of legal services to indigent persons”). Because the contracts

between the attorneys and the state public defender were not made a part of

the record, we do not consider the guardians’ contract-based argument.

      It is helpful at the outset to identify the precise issue presented in this

appeal. The state public defender does not challenge the appointment of

the guardians ad litem in the underlying cases. Consequently, whether the

appointment of a guardian ad litem was necessary or constitutionally

required in any of these cases is not a matter for our consideration. The

only issue before this court is whether the state public defender must pay

the guardians ad litem from the funds administered by his office. To put

this issue in proper perspective, we begin with a brief history of the relevant

statutes.

      At all pertinent times, Iowa Code section 232.89 has provided for the

appointment of counsel for parents in CINA proceedings and the

appointment of counsel and a guardian ad litem for the child in such cases.

See Iowa Code § 232.89(1), (2).        Prior to 1999, the Code provisions

authorizing payment of expenses in such cases included “the costs of

compensation of an attorney appointed by the court to serve as counsel or

as guardian ad litem” without regard to whether the attorney represented
the parent or the child. Id. § 232.141(3)(c) (1999). Section 232.141(3)(c)

stated such costs were to be paid “as provided in section 815.7.”             Id.

Section 815.7 is a general provision concerning compensation of court-

appointed attorneys in various court proceedings, including juvenile cases.

Prior to 1999 it stated in relevant part: “An attorney . . . who is appointed

. . . to serve as counsel or guardian ad litem to a person in juvenile court in

this state shall be entitled to a reasonable compensation . . . .” Id. § 815.7.

Another provision of chapter 815, section 815.11, authorized payment of

costs incurred under section 232.141(3)(c) and section 815.7 from funds
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appropriated for indigent defense. See id. § 815.11. Thus, prior to 1999,

the state public defender was authorized to compensate an attorney

appointed as a guardian ad litem in a juvenile proceeding, without regard to

whether the attorney represented the parent or the child.

      The statutory framework was changed in 1999 to make the payment

provisions parallel to the appointment statute, section 232.89. See 1999

Iowa Acts ch. 135, §§ 20, 21, 26. Section 232.141(3)(c) now limits the state

public defender’s liability to “[c]osts incurred for compensation of an

attorney appointed by the court to serve as counsel to any party or as

guardian ad litem for any child.”         Iowa Code § 232.141(3)(c) (2003)

(emphasis added).      Similarly, section 815.7 now states an attorney

“appointed by the court . . . to serve as counsel for any person or guardian

ad litem for any child in juvenile court, shall be entitled to reasonable

compensation and expenses.” Id. § 815.7 (emphasis added). Although

section 815.11 continues to provide that costs allowed under sections

232.141(3)(c) and 815.7 are to be borne by the state public defender, the

limitation of the costs allowed under those statutes has eliminated the

responsibility of the state public defender to pay the cost of a guardian ad

litem for a parent in a juvenile proceeding. See id. § 815.11 (stating “[c]osts

incurred under other provisions of the Code or administrative rules are not

payable from these funds”).

      To avoid the statutory restriction on the use of monies appropriated

to the state public defender, the guardians argue the state public defender

is constitutionally required to compensate them. They argue elimination of

payment by the state public defender “ensures the end of appointments of

guardians ad litem for impaired indigent parents” in juvenile proceedings.

We are not convinced that is so. Although the legislature no longer permits

guardians ad litem for parents to be paid from the indigent defense fund,
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this change does not prohibit the court from appointing guardians ad litem

for parents. 1

       The amendments challenged by the guardians ad litem as

unconstitutional simply eliminated the mechanism that had formerly been

used for compensation of the guardians ad litem. But that change does not

mean the state is not obligated to pay the fees of constitutionally required

guardians ad litem.           This court has held that when an attorney is

constitutionally required, the state is obligated to pay the court-appointed

attorney reasonable compensation. See McNabb v. Osmundson, 315 N.W.2d

9, 16 (Iowa 1982); accord Pfister, 688 N.W.2d at 797 (stating that “when the

constitution mandates the appointment of counsel [‘in proceedings brought

by the state in the public interest’], the state has a concomitant

responsibility to pay the court-appointed attorney”). Thus, if the guardians

ad litem appointed in the underlying cases were constitutionally required,

as the district court concluded, the state would have a responsibility to pay

the court-appointed guardians ad litem even in the absence of statutory

authority for the appointment. See Pfister, 688 N.W.2d at 796-98 (holding

state must compensate court-appointed attorneys to which defendants were

       1In   the same bill that amended sections 232.141(3)(c) and 815.7, the general
assembly amended section 815.10 in a manner that arguably limited the court’s ability to
appoint an attorney as a guardian ad litem. See 1999 Iowa Acts ch. 135, § 28. Section
815.10 states in part that “[t]he court . . . shall appoint the state public defender’s designee
. . . to represent an indigent person at any stage of the . . . juvenile proceedings.” Iowa
Code § 815.10(1). This court has interpreted the authority granted to the court in this
statute to include the power to appoint a guardian ad litem. See State Pub. Defender v.
Iowa Dist. Ct. for Wapello County, 644 N.W.2d 354, 357 (Iowa 2002) (holding section
815.10(1) was “broad enough” to include an attorney appointed by the court to serve as
guardian ad litem for child victims in connection with criminal prosecutions, thereby
making the indigent defense fund liable for the guardian’s compensation). The 1999 act
added the following language to section 815.10(1): “Only one attorney shall be appointed in
all cases, except that in class ‘A’ felony cases the court may appoint two attorneys.” See
1999 Iowa Acts ch. 135, § 28 (codified at Iowa Code § 815.10(1)). The same limitation in
some form has been found in section 815.7 for many years. Neither party in this appeal
has examined the applicability of this limitation to the appointments made in the
underlying juvenile cases, or the impact this language may have on the questions
presented in this appeal. Therefore, we do not consider this provision in our analysis of the
responsibility of the state public defender for the guardians’ fees.
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constitutionally entitled even though there was no statute authorizing their

appointment).

      The legislature has provided that claims against the state can be

submitted to the director of the department of management for

consideration by the state appeal board.       See Iowa Code ch. 25; Iowa

Admin. Code rs. 543—3.1 to 543—3.5. Claims allowed under this statute

include valid claims against the state for which no appropriation is available

for payment. Iowa Code § 25.1(1). It appears that claims for which no

appropriation exists are payable “out of any money in the state treasury not

otherwise appropriated.” Id. § 25.2(3). Consequently, if the state is liable

for the costs of guardians ad litem in the subject cases, those costs can be

sought under the procedure established by the legislature for general claims

against the state.    Therefore, we reject the guardians’ argument that

elimination of the indigent defense fund as a source of payment is

tantamount to eliminating guardians ad litem for indigent parents. Cf.

Pfister, 688 N.W.2d at 798 (holding statutory amendments changing “the

mechanics of providing and paying counsel for indigent parolees” were not

unconstitutional).

      The burden is on the guardians ad litem to demonstrate a
constitutional infirmity in the manner in which constitutionally required

guardians ad litem are compensated. See id. at 794. They have failed to

advance any argument in their brief that payment of compensation as a

general claim against the state rather than under the procedure established

for the state public defender violates the equal protection or due process

rights of parents.     See Iowa R. App. P. 6.14(1)(c).          Under these

circumstances, we find no constitutional basis to require the state public

defender to pay the costs for these guardians ad litem.
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      This court’s decision in In re Interest of S.A.J.B., 679 N.W.2d 645

(Iowa 2004), upon which the guardians ad litem rely, does not require a

contrary result. In In re S.A.J.B., the district court refused to appoint

counsel for an indigent mother in an involuntary termination-of-parental-

rights case filed by the child’s father under Iowa Code chapter 600A. In re

S.A.J.B., 679 N.W.2d at 646. We held the mother’s right to equal protection

was violated because parents in involuntary termination proceedings

brought under Iowa Code chapter 232 were provided court-appointed

counsel. Id. at 650. To remedy this constitutional defect in the statutory

scheme, we held parents in chapter 600A termination proceedings were also

entitled to appointed counsel at public expense. Id. at 651.

      The guardians in this case argue we should similarly extend the

coverage of the indigent defense fund to include their compensation to

remedy the denial of due process allegedly resulting from the amendments

to sections 232.141(3)(c) and 815.7.     But that argument rests on the

incorrect premise that the alteration in the way guardians ad litem are paid

in effect means guardians ad litem cannot be appointed.        As we have

discussed, the amendments challenged by the guardians dealt solely with

payment and did not prohibit appointment of guardians ad litem for
indigent parents.   Therefore, the remedy given in In re S.A.J.B., where

counsel was denied, is not warranted here.

      In summary, we conclude the state public defender has no statutory

responsibility to compensate guardians ad litem appointed to represent

parents in juvenile proceedings. In addition, the amendments to section

232.141(3)(c) and section 815.7 eliminating the state public defender’s

obligation to pay such guardians ad litem do not violate parents’ equal

protection or due process rights. Therefore, we conclude the district court
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erred in ordering the state public defender to pay the bills submitted by the

guardians in the underlying cases.

      WRIT SUSTAINED.
