                  This opinion is subject to revision before
                    publication in the Pacific Reporter

                                 2016 UT 55

                                  IN THE
      SUPREME COURT OF THE STATE OF UTAH

         In the Matter of the Adoption of K.A.S., a minor

                                 L.E.S.,
                                Appellant,
                                     v.
                        C.D.M. and M.K.M.,
                            Appellees.

                           No. 20140966
                      Filed December 6, 2016

                          On Direct Appeal

                     Eighth District, Vernal
                The Honorable Clark A. McClellan
                         No. 132800027

                               Attorneys:
        Marshall Thompson, Salt Lake City, for appellant
         Jordan R. Van Oostendorp, Vernal, for appellees
  Sean D. Reyes, Att’y Gen., John M. Peterson, Asst. Att’y Gen.,
Tyler R. Green, Solic. Gen., Stanford E. Purser, Deputy Solic. Gen.,
                   Salt Lake City, amicus curiae

  JUSTICE HIMONAS authored the opinion of the Court, in which
       CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.
           JUSTICE DURHAM filed a concurring opinion.
     ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.


JUSTICE HIMONAS, opinion of the Court:
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                         Opinion of the Court

                          INTRODUCTION
   ¶ 1 This is an appeal from a parental-rights termination order
entered in the district court. On November 24, 2014, the district court
terminated L.E.S.’s parental rights with respect to K.A.S., making K.A.S.
legally available for adoption by her stepfather, C.D.M. L.E.S. appealed
the termination order to the Utah Court of Appeals, which
subsequently certified the case for transfer to the Utah Supreme Court.
The issues presented on appeal are a claim of ineffective assistance of
counsel and claims to the right to counsel under the Equal Protection
Clause of the Fourteenth Amendment, under the Due Process Clause of
the Fourteenth Amendment, and under the due process clause of the
Utah Constitution. For reasons explained below, we hold that the
denial of counsel violated L.E.S.’s federal due process rights and
reverse and remand for further proceedings in accordance with this
opinion.
                             BACKGROUND
    ¶ 2 On or about September 23, 2013, C.D.M. and M.K.M. filed a
petition for adoption in Uintah County, Utah. C.D.M. sought to adopt
his stepdaughter, K.A.S, who was born in 2008. L.E.S., K.A.S.’s
biological father, was served with a Notice of Adoption Proceedings on
September 23, 2013, requiring him to respond within thirty days if he
intended to intervene in or contest the adoption. On or about October 2,
2013, L.E.S., acting pro se, gave notice that he contested the adoption.
C.D.M. and M.K.M. then moved to terminate L.E.S.’s parental rights.
   ¶ 3 The case was set for trial for termination of parental rights on
December 10, 2013. M.K.M. was present with counsel. L.E.S. was
present in custody, pro se, having been transported from the Uintah
County Jail, where he was incarcerated at the time. Upon questioning
L.E.S. about his income and assets, the district court found that he
“would qualify for court appointed counsel if this were in the Juvenile
Court but question[ed] whether [that statutory right to court-appointed
counsel] applies to [the] District Court.” 1 The district court discussed
L.E.S.’s right to counsel with Deputy County Attorney Michael

   1 While the juvenile court ordinarily assumes jurisdiction over
termination of parental rights cases, Utah Code section 78B-6-112(1)
authorizes the district court to hear such a case “if the party who filed
the petition is seeking to terminate parental rights in the child for the
purpose of facilitating the adoption of the child.”


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                          Opinion of the Court

Drechsel, who “agreed that Uintah County would be obligated to pay
for an attorney to represent the indigent father.” Based on Mr.
Drechsel’s input, the district court appointed counsel for L.E.S.
   ¶ 4 On January 24, 2014, Mr. Drechsel filed a motion to intervene
on behalf of Uintah County, asserting that his representations “were
made in error and contrary to law” and that there was no right to court-
appointed counsel for an indigent party in district court proceedings
involving the termination of parental rights. In that motion, he
requested that the district court reverse its decision to appoint counsel
and that it then dismiss Uintah County from the action. No opposing
memoranda were filed by any party. L.E.S.’s court-appointed counsel
did not respond or request a hearing on the issue, and L.E.S., because
he was represented at the time, did not have an opportunity to oppose
the motion pro se. See infra ¶ 20. On February 19, 2014, the district court
granted the motion to intervene, reversing the appointment of counsel.
    ¶ 5 The district court held a number of court conferences over the
next few months, during which time L.E.S. unsuccessfully attempted to
retain counsel. On April 10, 2014, a status conference was held, and the
district court set a telephonic scheduling conference with L.E.S., who
was then incarcerated at the Utah State Prison, for April 22, 2014. L.E.S.
was also informed that he should retain counsel if he so desired.
   ¶ 6 At the April 22, 2014 scheduling conference, L.E.S.,
participating by telephone, requested additional time to retain counsel.
    ¶ 7 An attorney review hearing was held on June 3, 2014, which
L.E.S. also attended telephonically. At this hearing, L.E.S. indicated that
he “believe[d] his family [was] taking care of his counsel for him but
[that he had] not been able to speak with them.” The district court set a
status conference for June 9, 2014, in order to allow L.E.S. more time to
speak with his family.
    ¶ 8 At that status conference, where L.E.S. was present from
prison, the district court noted that L.E.S. “had difficulty contacting
family or counsel due to the prison telephone policies to make
arrangement[s] to retain counsel.” The district court asked an attorney
who was serving as counsel for L.E.S. in a juvenile court case to contact
L.E.S.’s family in order to “understand where they stand with making
counsel arrangements for [L.E.S.] and report back to the [c]ourt.” The
district court also “ask[ed] the prison to allow [L.E.S.] telephone
privileges so he can talk with lawyers and/or family members so this
[c]ourt can move this matter along.”


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   ¶ 9 On June 17, 2014, L.E.S.’s juvenile court counsel reported to
the district court that L.E.S.’s family was working on obtaining counsel
and that they requested additional time. L.E.S.’s sisters were present
and requested “notification of all hearings to try and help the[ir]
brother due to communication issues with [L.E.S.] in prison.”
    ¶ 10 Another status conference was held on June 30, 2014. L.E.S.
was supposed to attend telephonically but “was not available by
telephone due to changes in probation officers at the prison.” L.E.S.’s
sisters were present and reported that they had talked with a lawyer,
Ms. Bradley, who needed to speak with L.E.S. The district court noted
that L.E.S. was “to sign a waiver to allow his sisters to have access to
court records to help with his defense.” The district court scheduled a
bench trial for the termination proceeding for September 26, 2014.
   ¶ 11 On July 22, 2014, yet another status conference was held “to
check the status of counsel for [L.E.S.].” Ms. Bradley had talked with
L.E.S. on the telephone right before the hearing and requested
additional time to review the information from that telephone meeting.
    ¶ 12 The next status conference was held on July 29, 2014. L.E.S.
attended telephonically and sought to present a verbal motion for
continuance, which the district court asked him to file in writing
instead.
    ¶ 13 L.E.S. filed his written motion for continuance with the district
court on August 4, 2014, requesting to have the matter continued until
at least April 29, 2015, when he expected to be released. In his motion,
L.E.S. indicated, among other things, that the prison would “not allow
[him] phone access for any legal reason based on a conflict they have,”
that he could “not obtain adequate employment and [did] not have any
other means available to [him] . . . at the prison that would allow [him]
the money to pay for counsel,” and that he was “at this time financially
incapable of hiring counsel.” He represented that he had “one
opportunity” to talk with a lawyer but that Ms. Bradley “said she was
reluctant to take on the case in fear that because of the [above-
mentioned] prison policy she would not be able to provide adequate
counsel.” C.D.M. and M.K.M. opposed the motion for continuance.
   ¶ 14 No oral argument was requested on the matter of the motion
for continuance, and on September 2, 2014, C.D.M. and M.K.M.
requested that the briefs be submitted for a ruling. On September 5,
2014, the district court issued a ruling and order denying the motion for
continuance. The district court based its decision on the following
reasons: the matter had “been pending since September 23, 2013”;

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“[m]ultiple status hearings ha[d] been held in an effort to provide
[L.E.S.] the opportunity to find counsel”; L.E.S. had “had ample time to
prepare for the trial, or to obtain counsel to represent him at trial”; and
a “permanent living environment and a resolution to these proceedings
are in the best interest of the minor child.”
   ¶ 15 On September 8, 2014, the district court held another status
conference. L.E.S. was not present. The district court denied the motion
to continue and indicated its intent to “[o]rder the state of Utah to
transport [L.E.S.] . . . for a termination of parental rights hearing on
September 26, 2014.”
   ¶ 16 The termination of parental rights hearing was held on
September 26, 2014, and the district court made findings against L.E.S.
and found that it was in the best interest of the child for K.A.S. to be
adopted by C.D.M. L.E.S. filed a notice of appeal on October 22, 2014.
The district court issued its “findings of fact[,] conclusions of law and
order” on November 24, 2014, terminating L.E.S.’s parental rights in
and to K.A.S.
   ¶ 17 L.E.S. appealed the district court’s termination order to the
Utah Court of Appeals, which certified the case for transfer to the Utah
Supreme Court on July 7, 2015. We heard oral arguments in the matter
on September 2, 2015. On September 21, 2015, we asked for
supplemental briefing from the parties and the Attorney General’s
Office on the constitutional question raised by L.E.S.’s argument that
Utah Code section 78A-6-1111(1)(a) (2012) and section 78A-6-
1111(1)(a)–(c) (2014) (two versions of the right-to-counsel provision of
the Juvenile Court Act) violate equal protection under the Fourteenth
Amendment and due process. Following supplemental briefing, oral
arguments were again heard on March 2, 2016.
    ¶ 18 L.E.S. raises four issues on appeal: a claim of ineffective
assistance of counsel and claims to the right to counsel under the Equal
Protection Clause of the Fourteenth Amendment, under the Due
Process Clause of the Fourteenth Amendment, and under the due
process clause of the Utah Constitution. We hold that, even though not
preserved, the constitutional issues may be reached in this case under
the exceptional circumstances exception. For reasons explained below,
we hold that the denial of counsel violated L.E.S.’s federal due process
rights. We reverse and remand for further proceedings in accordance
with this opinion.




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                            PRESERVATION
    ¶ 19 We first address the issue of preservation and hold that the
constitutional arguments for the right to counsel may be reached in this
case under the exceptional circumstances exception. When an issue is
not properly preserved, we will address the issue for the first time on
appeal “only if (1) the appellant establishes that the district court
committed ‘plain error,’ (2) ‘exceptional circumstances’ exist, or (3) in
some situations, if the appellant raises a claim of ineffective assistance
of counsel in failing to preserve the issue.” State v. Low, 2008 UT 58,
¶ 19, 192 P.3d 867 (citation omitted); see also State v. Munguia, 2011 UT 5,
¶¶ 10–13, 253 P.3d 1082; H.U.F. v. W.P.W., 2009 UT 10, ¶ 25 n.12, 203
P.3d 943; State v. Lee, 2006 UT 5, ¶ 24, 128 P.3d 1179. Exceptional
circumstances is a doctrine that “applies to rare procedural anomalies.”
Jacob v. Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535. We apply this
“exception sparingly, reserving it for the most unusual circumstances
where our failure to consider an issue that was not properly preserved
for appeal would have resulted in manifest injustice.” Id. (internal
quotation marks omitted).
    ¶ 20 Exceptional circumstances is a narrow exception but one that
is met by the unusual procedural circumstances in this case. The district
court initially granted L.E.S. “appointed counsel in a parental-rights
termination proceeding initiated by a private party in district court.”
The deputy county attorney, on whose advice the court had relied in
appointing counsel, later filed a motion to intervene, arguing that the
statute did not provide a right to counsel for termination proceedings
in district court. L.E.S.’s court-appointed counsel failed to respond to
the motion. Additionally, since L.E.S. was represented by counsel,
L.E.S. had no right to oppose the motion himself. See State v. Navarro,
2010 UT App 302, ¶ 3, 243 P.3d 519 (per curiam) (“[T]he [criminal]
defendant may not benefit from the assistance of counsel while
simultaneously filing pro se motions.”); State v. Wareham, 2006 UT App
327, ¶ 33, 143 P.3d 302 (“The [criminal] defendant may choose self-
representation or the assistance of counsel, but is not entitled to a
‘hybrid representation’ where he could both enjoy the assistance of
counsel and file pro se motions. The only exception to this rule is that a
defendant may file a pro se motion to disqualify his appointed
counsel.” (citation omitted)). The court granted the unopposed motion,
denying L.E.S. court-appointed counsel. L.E.S. subsequently found
himself unrepresented and would have to make a sophisticated
constitutional argument for the right to counsel. Most importantly,
L.E.S. had no technical vehicle for making such an argument because he

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had already lost on the issue of the right to counsel, and “[m]otions to
reconsider are not recognized by the Utah Rules of Civil Procedure.”
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615.
    ¶ 21 We conclude that these circumstances constitute one of those
“rare procedural anomalies” that qualify for the exceptional
circumstances exception to the preservation rule. 2 When a party is
appointed counsel who refuses to make an argument for the right to
counsel when that right is challenged, and the party is barred from
making that argument, and the party then is denied counsel and
subsequently would have to make a sophisticated constitutional
argument for the right to counsel with no technical vehicle for making
such an argument, exceptional circumstances are met. 3 Thus, under the
exceptional circumstances exception, we may reach L.E.S.’s
constitutional arguments for the right to counsel in parental-rights
termination proceedings, even though they were raised for the first
time on appeal.
                               ANALYSIS
   ¶ 22 We apply the test from Lassiter v. Department of Social Services
and determine that L.E.S. had a federal due process right to counsel in
the district court proceedings and that that right was erroneously


   2 To conclude otherwise would be to require L.E.S. to have filed a
motion that is not technically recognized by the Utah Rules of Civil
Procedure. We decline to require parties to file motions that our cases
say do not exist. See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163
P.3d 615 (“[T]rial courts are under no obligation to consider motions for
reconsideration . . . .”).
   3 Our holding today should not be construed to mean that the
exceptional circumstances exception applies any time a lawyer fails to
make an argument. Rather, our holding is intricately tied to the
deprivation of counsel under the unique facts of this proceeding. Here,
a lawyer was appointed, but abdicated all responsibility by failing to
make any argument regarding L.E.S.’s right to representation,
constructively denying L.E.S. counsel and leaving him without the
technical ability to present to the district court his own, separate
argument for counsel. Moreover, L.E.S. is without a meaningful
malpractice action as that does not provide a vehicle for regaining his
parental rights in K.A.S.



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denied. 452 U.S. 18 (1981). 4 L.E.S. correctly argues that “the trial court
erred by failing to consider the Eldridge factors” as applied by the
United States Supreme Court in Lassiter. 5 In Lassiter, the Court


   4   Because we find that L.E.S. had a federal due process right to
counsel, and as a matter of constitutional avoidance, we do not reach
his other constitutional arguments for the right to counsel, namely the
arguments under state due process and federal equal protection.
Regarding the federal equal protection argument, we note that L.E.S.
challenged the constitutionality of two sections of the Juvenile Court
Act. New versions of those provisions were issued while the case was
still ongoing in the district court, and we requested additional briefing
from the parties and briefing from the Attorney General’s Office
regarding the constitutionality of those statutes and which version
applied to the proceedings. Since then, new versions have again been
issued in 2016. If we were to consider whether equal protection
provides a right to counsel, we would have to again request briefing
about which version of the statute would apply, which would further
delay resolution. Thus, the concern about additional delay in a case
where time is of the essence is an additional reason for us to not reach
L.E.S.’s other constitutional arguments.
     Our holding today also means we do not need to address the
constitutionality of the relevant section of the Juvenile Court Act—Utah
Code section 78A-6-1111(2)—under federal due process. This section, at
least as of 2014, prohibited court-appointed counsel for proceedings
initiated by a private party in juvenile courts, but it neither provided
for nor prohibited the appointment of counsel in district courts. As we
explain in this opinion, the district court had an independent obligation
to conduct a Lassiter analysis, and nothing in section 1111(2) is to the
contrary, as by its own terms, the Juvenile Court Act applies only to
juvenile court proceedings. See UTAH CODE § 78A-6-105(10) (“‘Court’
means the juvenile court.”). Therefore, as we have already decided
that section 1111(2) is not facially unconstitutional in In re E.K.S., 2016
UT 56, __ P.3d __, and because we do not resolve this case under the
Juvenile Court Act, we need not and do not reach the issue of whether
section 1111(2) is constitutional as applied under the Due Process
Clause of the Fourteenth Amendment of the United States Constitution.
   5 Mathews v. Eldridge, 424 U.S. 319, 335 (1976) “propounds three
elements to be evaluated in deciding what due process requires, viz.,
the private interests at stake, the government’s interest, and the risk
                                                                 (cont.)

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considered whether indigent parents in parental-rights termination
proceedings have a right to counsel. The Court recognized that there is
a presumption against the right to counsel unless an indigent litigant’s
physical liberty is at stake but held that that presumption may be
overcome by the Eldridge factors. It determined that courts “must
balance [the Eldridge factors] against each other, and then set their net
weight in the scales against the presumption that there is a right to
appointed counsel only where the indigent, if he is unsuccessful, may
lose his personal freedom.” Id. at 27.
    ¶ 23 It appears from the record that the district court found that
L.E.S. was indigent. Upon making that finding, the district court was
required as a matter of law to apply the test set forth in Lassiter in order
to determine whether L.E.S. had a right to counsel. Nowhere in the
record does it appear that the district court applied the Lassiter test.
Instead, the district court appears to have based its decision that L.E.S.
had no right to counsel on an interpretation of the right-to-counsel
provision in the Juvenile Court Act and the lack of a corresponding
provision in the district court context. This was error. And “because
child-custody litigation must be concluded as rapidly as is consistent
with fairness,” rather than remand for additional findings, “we decide
today whether the [district court] judge denied [L.E.S.] due process of
law” under the Fourteenth Amendment by reversing its original
appointment of counsel for L.E.S. Id. at 32. (footnote omitted).
   ¶ 24 According to Lassiter,
       [i]f, in a given case, the parent’s interests were at their
       strongest, the State’s interests were at their weakest, and
       the risks of error were at their peak, it could not be said
       that the Eldridge factors did not overcome the
       presumption against the right to appointed counsel, and
       that due process did not therefore require the
       appointment of counsel.
Id. at 31. To put it more plainly, where the parent’s interests are at their
strongest, the State’s interests at their weakest, and the risks of error at
their peak, 6 the presumption against the appointment of counsel has

that the procedures used will lead to erroneous decisions.” Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981).
   6 The dissent suggests that “the Lassiter standard is highly
dependent on the third . . . factor” (i.e., the risk of error), almost to the
                                                                      (cont.)

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been overcome and due process requires the appointment of counsel.
We now proceed to analyze the Eldridge factors in the context of the
case at hand and determine that they overcome the presumption
against the right to counsel. Thus, we conclude that L.E.S. had a federal
due process right to counsel in the district court proceedings. Because
that right was denied, we reverse and remand for further proceedings
in accordance with this decision.
                           I. L.E.S.’S INTERESTS
    ¶ 25 First, we consider the private interests at stake: L.E.S.’s
parental interest in his daughter, K.A.S. A parent’s “right to ‘the
companionship, care, custody, and management of his or her children’
is an important interest that ‘undeniably warrants deference and,
absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t
of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S.
645, 651 (1972)). In fact, “[t]he right of a fit, competent parent to raise
the parent’s child without undue government interference is a
fundamental liberty interest that has long been protected by the laws
and Constitution and is a fundamental public policy of this state.”
UTAH CODE § 62A-4a-201(1)(c); 7 see id. § 78A-6-503(1) (“Under both the
United States Constitution and the constitution of this state, a parent
possesses a fundamental liberty interest in the care, custody, and
management of the parent’s child.”); id. § 78A-6-503(4) (“The court
should give serious consideration to the fundamental right of a parent
to rear the parent’s child, and concomitantly, [to] the right of the child
to be reared by the child’s natural parent.”); see also Lassiter, 452 U.S. at
38 (“[F]ar more precious . . . than property rights, . . . parental rights
have been deemed to be among those essential to the orderly pursuit of
happiness by free men.” (first and second alterations in original)


exclusion of the first two factors. Infra ¶ 70. We cannot agree with this
proposition. It is true that the third factor is important and perhaps has
drawn the most attention, but that is not to say that the other two
factors do not play a role. We read Lassiter to require all three. Lassiter,
452 U.S. at 31 (“The dispositive question . . . is whether the three
Eldridge factors, when weighed against the presumption that there is no
right to appointed counsel . . . , suffice to rebut that presumption . . . .”).
   7 Unless otherwise indicated, citations are to the current edition of
the Utah Code. We have omitted the date from citations to the current
edition.



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(citation omitted) (internal quotation marks omitted)). Therefore, as
noted in Lassiter, a “parent’s interest in the accuracy and justice of the
decision to terminate his or her parental status is . . . a commanding
one.” Id. at 27; see UTAH CODE § 62A-4a-201(1)(b) (“Until the state
proves parental unfitness, . . . the child and the child’s parents share a
vital interest in preventing erroneous termination of their natural
relationship.”). Furthermore, the Court indicated that the parent’s
“extremely important” interest “may be supplemented by the dangers
of criminal liability inherent in some termination proceedings.” Lassiter,
452 U.S. at 31.
    ¶ 26 In this case, the parent’s interests were at their strongest or
very nearly so. L.E.S.’s right, as a parent, to the companionship, care,
custody, and management of K.A.S. is clearly an important interest.
Thus, he has a commanding interest in the accuracy and justice of the
parental-rights termination proceeding. Furthermore, there is some
concern regarding the risk of self-incrimination in this case, where the
district court found that L.E.S. should have taken K.A.S.’s mother to
court for refusing to facilitate visits but that he did not do so because
“he was afraid because he was on drugs,” and where the district court
also noted that L.E.S.’s “extensive substance abuse is terms of neglect.”
It is unclear whether these findings were based on testimony elicited
from L.E.S. or from evidence that was submitted, but L.E.S. did testify
and was cross-examined, and it certainly appears that there was a risk
of self-incrimination through the disclosure of information regarding
his use of controlled substances. 8 Thus, we conclude that L.E.S.’s
interests were at their strongest or very nearly so.




   8 Aside from the risk of self-incrimination, there might also be some
danger of criminal liability based on allegations in the petition to
terminate L.E.S.’s rights. In Lassiter, it appears that “the petition to
terminate Ms. Lassiter’s parental rights contained no allegations of
neglect or abuse upon which criminal charges could be based.” Lassiter,
452 U.S. at 32. In contrast, the petition in this case alleged neglect and
emotional abuse, including a statement that L.E.S. “has not paid child
support for years.” Admittedly, however, it is not clear whether the
allegations here are sufficient to potentially lead to criminal charges (for
example, it is unclear whether “child support” refers to court-ordered
child support).



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                       II. THE STATE’S INTEREST
    ¶ 27 Second, we consider whether the State’s interests in not
appointing counsel were at their weakest. As the Court pointed out in
Lassiter v. Department of Social Services, the State has divergent
interests—it has an interest in appointing counsel as well as in not
appointing counsel. The State has a legitimate pecuniary interest in not
appointing counsel. 452 U.S. 18, 28 (1981). However, the State’s
pecuniary interest “is hardly significant enough to overcome private
interests as important as those here.” Id. The Court in Lassiter also
recognized that “the State may share the indigent parent’s interest in
the availability of appointed counsel” because of the State’s “urgent
interest in the welfare of the child” and its “interest in an accurate and
just decision.” Id. at 27. In Lassiter, the State was clearly invested in and
therefore particularly interested in the child’s welfare, as the parental-
rights termination proceeding in that case was initiated by the
Department of Social Services after the child had been in foster care for
more than two years. Id. at 20–21, 28.
    ¶ 28 The State’s interest in not appointing counsel in the case at
hand was relatively weak. The State, of course, had a legitimate
pecuniary interest in not appointing counsel, but as in Lassiter, we
recognize that that interest is hardly significant enough to overcome an
interest as important as a parent’s rights to his or her child. And the
State’s interest in terminating L.E.S.’s parental rights was certainly less
urgent in this case than it was in Lassiter, because this parental-rights
termination proceeding was initiated and advanced by a private party
rather than by the State. Regardless, the State still had an interest in the
welfare of the child, and the State is necessarily involved in the
termination of parental rights since only the State can terminate a
parent’s rights to his or her child. Thus, the State still “share[d] with the
parent an interest in a correct decision,” which is more “likely to be
obtained through the equal contest of opposed interests.” Id. at 28, 31.
In this case, the State’s interest in appointing counsel was stronger than
its interest in not appointing counsel. Therefore, we conclude that the
State’s interest in not appointing counsel was relatively weak.
                          III. RISKS OF ERROR
   ¶ 29 Third, we consider whether the risks of error were at their
peak. Specifically, we consider “the risk that a parent will be
erroneously deprived of his or her child because the parent is not
represented by counsel.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 28
(1981). Similarly to North Carolina law as set out in Lassiter, Utah law

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provides a number of procedures to help ensure accurate decisions in
parental-rights termination proceedings.9 By way of example, the
petition must include “the grounds on which termination of parental
rights is sought.” UTAH CODE § 78A-6-505(1)(f). Additionally, a hearing
must be held on the question of termination of parental rights, and the
petitioner must “establish the facts by clear and convincing evidence.”
Id. § 78A-6-506(2)–(3).
    ¶ 30 Despite such protections, there can still be considerable risk of
error in parental-rights termination proceedings, which can be
complicated for the parent seeking to defend his or her parental rights
without the aid of counsel. The Court in Lassiter recognized the
argument that parents are “uniquely well informed” about the subject
of the parental-rights termination hearing (the parent’s relationship
with the child) but indicated that the ultimate issues in such cases are
not always simple. Lassiter, 452 U.S. at 29–30. The Court pointed out
that most parents would have difficulty understanding and confuting
expert medical and psychiatric testimony, which is sometimes
presented. Id. at 30. Additionally, it recognized that many parents
facing termination proceedings may “be people with little education,
who have had uncommon difficulty in dealing with life, and who are,
at the hearing, thrust into a distressing and disorienting situation.” Id.
Consequently, “courts have generally held that the State must appoint
counsel for indigent parents at termination proceedings.” Id.
    ¶ 31 In the case at hand, the risks of error were significant. Because
this case involves privately initiated termination proceedings, L.E.S. has
not enjoyed the additional protections provided in state-initiated
termination cases. See, e.g., UTAH CODE § 62A-4a-203(1)(a) (“[T]he
division shall . . . make reasonable efforts to prevent or eliminate the
need for removal of a child from the child’s home . . . .”); id. § 62A-4a-
202(1)(a) (“[T]he division shall provide in-home services for the
purpose of family preservation to any family with a child whose health
and safety is not immediately endangered, when . . . the family is in

   9 The procedures outlined in this paragraph are some of those
applicable to the particular circumstances of this case as opposed to an
exhaustive listing of procedures for ensuring accurate decisions in
parental-rights termination proceedings generally under Utah law. And
although they appear in the Juvenile Court Act, we assume here that
these procedures apply to parental-rights termination proceedings that
take place in district court.



                                   13
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                           Opinion of the Court

crisis . . . .”); id. § 62A-4a-201(4) (indicating that after a temporary out-
of-home placement, “the division may . . . (a) when safe and
appropriate, return the child to the child’s parent; or (b) as a last resort,
pursue another permanency plan”); id. § 78A-6-503(3) (“If the party
moving to terminate parental rights is a governmental entity, the court
shall find that any actions or allegations made in opposition to the
rights and desires of a parent regarding the parent’s child are
supported by sufficient evidence to satisfy a parent’s constitutional
entitlement to heightened protection against government interference
with the parent’s fundamental rights and liberty interests.”); see also
infra ¶ 35 n.10. Also, this case appears particularly disorienting because
the court initially appointed counsel for L.E.S. upon a finding of
indigence and later reversed the appointment of counsel based on an
unopposed motion asserting that Utah law did not provide a right to
counsel for termination proceedings in the district court. This left L.E.S.
with the need to subsequently make a sophisticated constitutional
argument for the right to counsel that he was unable to make without
the assistance of counsel.
    ¶ 32 Furthermore, L.E.S. was incarcerated throughout the duration
of the proceedings, and it is clear from the record that this led to
significant communication difficulties and at times even his inability to
attend proceedings, either in person or telephonically. The district court
recognized early on that L.E.S. “had difficulty contacting family or
counsel due to the prison telephone policies to make arrangement[s] to
retain counsel.” L.E.S.’s sisters attended several of the proceedings and
attempted to help L.E.S. with his defense, but their efforts appear to
have been hampered by communication issues with L.E.S. in prison.
Supra ¶¶ 7–10. L.E.S. was unable to telephonically attend the status
conference during which the final parental-rights termination hearing
was scheduled “due to changes in probation officers at the prison” that
resulted in him not being available by telephone. Supra ¶ 10. He also
was not present at the September 8, 2014 status conference, where his
motion to continue was denied. Supra ¶ 15.
    ¶ 33 Additionally, although the district court held a number of
status conferences in order to help L.E.S. obtain counsel, the district
court mentions only one attorney that L.E.S. actually talked with, and
L.E.S. reported to the district court that that attorney “was reluctant to
take on the case in fear that because of the . . . prison policy she would
not be able to provide adequate counsel.”
   ¶ 34 While no expert medical or psychiatric testimony or other
similarly complicated evidence was brought before the court, it is

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                          Opinion of the Court

possible that had L.E.S. been represented by counsel, such testimony
may have been brought. At this stage, it is difficult to conclude that the
case below was simple and uncomplicated, dealing exclusively with
issues about which L.E.S., as K.A.S.’s parent, was “uniquely well
informed,” when the apparent simplicity of the record may be due to
the fact that L.E.S. represented himself pro se and had no opportunity
to present more complicated evidence and argument with the aid of
counsel. Thus, we conclude that the risks of error in this case were
significant, even if not quite at their peak.
             IV. ELDRIDGE FACTORS BALANCED AND
                WEIGHED AGAINST PRESUMPTION
    ¶ 35 Finally, we balance the three Eldridge factors against each
other and then weigh them against the presumption against the right to
counsel. As already indicated, L.E.S.’s interest is “a commanding one,”
and the State shares L.E.S.’s interest in reaching a correct decision.
When balancing these interests in favor of appointing counsel against
the State’s relatively weak, albeit legitimate, pecuniary interest in not
appointing counsel, the equation clearly comes out in favor of
appointing counsel. And when we add the significant risks of error to
this balance, it becomes abundantly clear that the Eldridge factors favor
a right to counsel in this case. Upon weighing these significant interests
against the presumption against the appointment of counsel, we hold
that they outweigh that presumption and that L.E.S. therefore had a
right to appointed counsel under the Due Process Clause of the
Fourteenth Amendment. Because the initial appointment of counsel
was reversed and L.E.S. had to proceed pro se, his federal due process
right to counsel was violated. 10

   10  In Lassiter, the Court’s analysis includes the mother’s lack of
interest shown in the child and disinclination to participate in the
judicial process. The Court observed that “the weight of the evidence
that [Ms. Lassiter] had few sparks of . . . interest [in her son] was
sufficiently great that the presence of counsel for Ms. Lassiter could not
have made a determinative difference.” Lassiter v. Dep’t of Soc. Servs.,
452 U.S. 18, 32–33 (1981). In the case at hand, however, L.E.S. indicates
that he tried for years “to contact or have contact with [K.A.S.] but her
mother refused or avoided the subject.” He provided copies of a
number of Facebook messages to back up that assertion. In those
messages, he expressed that he missed K.A.S. and wanted to see her
again, including a request “to arrange visitations” and to stop
                                                                    (cont.)

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                          Opinion of the Court

    ¶ 36 The dissent contends that our analysis “turns th[e]
presumption [against the right to appointed counsel in civil cases] on
its head” by “virtually guarantee[ing] appointment of counsel in most
every case in which a parent’s rights are in jeopardy.” Infra ¶ 48. We
disagree. We note, at the outset, that our task is simply to apply Lassiter
to the case before us. That is, our task—our only task—is to consider
whether the presumption against L.E.S.’s having a right to counsel is
overcome because (1) L.E.S.’s interest in appointed counsel is strong,
(2) the State’s interest in denying appointed counsel is weak, and (3) the

“stalling.” Granted, L.E.S. did not take K.A.S.’s mother to court for
refusing to facilitate visits, because “he was afraid because he was on
drugs.” Supra ¶ 26. But unlike the mother in Lassiter, L.E.S. has clearly
shown interest in his child.
    L.E.S. has also shown that interest through his efforts to participate
in these proceedings, again unlike the mother in Lassiter. In Lassiter, the
mother “had expressly declined to appear at the 1975 child custody
hearing” and “had not even bothered to speak to her retained lawyer
after being notified of the termination hearing.” Lassiter, 452 U.S. at 33.
Her “failure to make an effort to contest the termination proceeding
was [found to be] without cause.” Id. Here, however, L.E.S. gave notice
pro se that he contested the adoption, and he attended a number of
court conferences, both in person and telephonically, and attempted to
retain counsel. Supra ¶¶ 2, 5–7. He also filed, again pro se, a motion for
continuance, and upon the denial of that motion and termination of his
rights, he filed a pro se notice of appeal and has continued to pursue
the matter in court. Supra ¶¶ 13, 16–17.
    Thus, unlike in Lassiter, we cannot conclude that “the presence of
counsel . . . could not have made a determinative difference” based on
the parent’s indifference to the child. See 452 U.S. at 32–33.
Furthermore, L.E.S. has actively participated in the case, unlike the
mother in Lassiter, whose “plain demonstration that she is not
interested in attending a hearing” was among the circumstances
considered by the Court in holding that “the trial court did not err in
failing to appoint counsel.” Id. at 33.
    Another difference between the two cases, which is not, however,
included in the analysis section in Lassiter, is the length of incarceration
of the parent. In Lassiter, the mother had been sentenced to “25 to 40
years of imprisonment.” Id. at 20. L.E.S., in contrast, expected to be
released from prison within nine months of his August 4, 2014 motion
for continuance. See supra ¶ 13.


                                    16
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                           Opinion of the Court

risks of error are high. Our application of Lassiter in this case leads us to
the conclusion that L.E.S. is entitled to counsel. While it would not
surprise us if the presumption against the right to appointed counsel in
civil cases were overcome with greater frequency in parental-rights
termination proceedings than in other contexts where the stakes are
lower and the core issue in the proceedings is less complicated than
whether to sever the parent-child relationship, these potential empirical
results do not drive our analysis. Our task is to faithfully apply Lassiter
to the facts of each case before us; whatever pattern of outcomes
emerges from this exercise is the pattern of outcomes required by the
law. Cf. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 30 & n.6 (1981)
(noting—without apparent concern—that the presumption against the
right to counsel in civil cases has “generally” been overcome in the
parental-rights termination context).
   ¶ 37 The dissent understands the effect of Lassiter’s presumption to
be that the right to counsel in civil cases—including parental-rights
termination cases—must be found only rarely. See infra ¶ 63 n.9. This is
a misreading of Lassiter. To be sure, Lassiter acknowledges that there is
a presumption against the right to counsel in civil cases. But Lassiter
nowhere implies that the effect of this presumption is that if courts
regularly find a right to appointed counsel in parental-rights
termination proceedings they are doing it wrong. To the contrary,
Lassiter emphasizes that
       the ultimate issues with which a termination hearing
       deals are not always simple, however commonplace they
       may be. Expert medical and psychiatric testimony, which
       few parents are equipped to understand and fewer still to
       confute, is sometimes presented. The parents are likely to
       be people with little education, who have had uncommon
       difficulty in dealing with life, and who are, at the hearing,
       thrust into a distressing and disorienting situation. That
       these factors may combine to overwhelm an uncounseled
       parent is evident . . . .
Lassiter 452 U.S. at 30. For this reason, Lassiter notes, “courts have
generally held that the State must appoint counsel for indigent parents
at termination proceedings.” Id. Nor does Lassiter lament, or seek to
change, this state of affairs. To be sure, at one point the Lassiter court
conceded that it could not “say that the Constitution requires the
appointment of counsel in every parental termination proceeding.” Id.
at 31. And it is certainly true that the Lassiter court concluded, under
the specific facts before it, that counsel did not need to be appointed.

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                           Opinion of the Court

But Lassiter’s agnosticism about the frequency with which the
Constitution would end up requiring the appointment of counsel in
parental-rights termination proceedings is a far cry from a hard-nosed
insistence that lower courts should work to make sure that the right to
counsel in parental-rights termination cases is only grudgingly found.
    ¶ 38 We also disagree with the dissent that our application of
Lassiter “demands appointment in the run of the mill case.” Infra ¶ 73
n.17. Instead, our application of Lassiter requires the appointment of
counsel whenever the parent’s interest in appointed counsel is strong,
the state’s interest is weak, and the risks of error are high. Our opinion
is consistent with the proposition that in a case with circumstances like
Lassiter—where, for example, the parent has not taken an interest in the
proceedings and “the weight of the evidence” of the parent’s lack of
interest in the child is “great”—or in a case where the parent faced
fewer procedural or institutional barriers to availing himself of the
court, the presumption against the right to counsel will not be
overcome. Lassiter, 452 U.S. at 32; cf. supra ¶ 35 n.10 (noting evidence of
L.E.S.’s interest in parenting K.A.S.). But, again, like the Supreme Court
in Lassiter, our analysis is not driven by any empirical speculation about
the frequency with which the presumption against the right to counsel
will be overcome in parental-rights termination proceedings. We focus
only on application of the legal test.11 And, for the reasons we have


   11  In any event, we note that even if application of the Lassiter test
will result in the right to appointed counsel in many cases in which a
parent’s rights are in jeopardy, this result stems, in large part, from the
existence of a statutory right to counsel under Utah Code section 78A-6-
1111(1)(c). Under that section, indigent parents have the right to
counsel in parental-rights termination proceedings initiated by the State
or a political subdivision of the State in juvenile court. Id. In such state-
initiated termination cases, the risk of error is likely to be lower because
of the State’s goal to preserve families if possible and because of
additional protections such as the provision of in-home services and the
requirement of “sufficient evidence to satisfy a parent’s constitutional
entitlement to heightened protection against government interference
with the parent’s fundamental rights and liberty interests.” UTAH CODE
§§ 62A-4a-201(1)(a), 78A-6-503(3); see also id. §§ 62A-4a-203(1)(a),
62A-4a-202(1)(a). Because of the lower risk of error, the presumption
against the right to counsel would be less likely to be overcome.
However, because of the statutory right to counsel under Utah Code
                                                                      (cont.)

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                          Opinion of the Court

explained, our application of that test leads us to the conclusion that the
presumption against the right to counsel is overcome in this case.
                             CONCLUSION
    ¶ 39 As discussed, we conclude that in the narrow circumstances
of this case, the exceptional circumstances exception to the preservation
requirement applies to allow us to reach L.E.S.’s constitutional
arguments for the right to counsel. We also hold, based on the Lassiter
test, that L.E.S. had a federal due process right to counsel in this case
and that that right was improperly denied. 12 Therefore, we reverse the
decision of the court below.




section 78A-6-1111(1)(c), the Lassiter test is not applied in such cases.
Consequently, while it might appear that the presumption in Lassiter is
“turn[ed] . . . on its head,” in reality the Lassiter test is simply never
applied to many of the cases in Utah in which the presumption might
prevail.
   12  Citing In re J.D.M., 810 P.2d 494 (Utah Ct. App. 1991), L.E.S.
argues that he is entitled to his attorney fees on appeal. However, L.E.S.
misreads In re J.D.M. In Utah, a party is generally entitled to attorney
fees only when such fees are authorized by contract or by statute.
Bilanzich v. Lonetti, 2007 UT 26, ¶ 11, 160 P.3d 1041 (“Generally, attorney
fees are awarded only when authorized by contract or by statute.”).
Neither contractual nor statutory authorization is present in the case at
hand. And to the extent that L.E.S. is arguing for an exception to the
general rule that attorney fees are awardable only when authorized by
contract or by statute, that argument is inadequately briefed and we
reject it.
    We also recognize that there may be an equal protection argument
for requiring attorney fees on appeal to be paid in termination
proceedings originating in district court as they are for those
originating in juvenile court. UTAH CODE § 78A-6-1111(1)(g). There may
also be an argument that Lassiter requires appointment of counsel on
appeal for indigent parties. However, these arguments are not before us
today. Accordingly, we deny L.E.S.’s request for attorney fees on
appeal.



                                    19
                               In re K.A.S.
                       DURHAM, J., concurring

    ¶ 40 However, although L.E.S. had a federal due process right to
counsel earlier, it is unclear from the facts of the case whether he has
such a right now. The right to counsel is available only to indigent
individuals. During the proceedings below, L.E.S. requested a
continuance until at least April 29, 2015, and in his briefing to the Utah
Supreme Court, he indicated that he had hoped “to push the
proceeding back to April when he would be out of prison and could
pay for private counsel.” Based on that information, L.E.S. is
presumably no longer incarcerated, having presumably been released
more than a year ago. Whether he is working and his current financial
status are unknown to us. Thus, we do not know whether he is
indigent. We therefore instruct the district court to first make a
determination of whether L.E.S. is indigent. If the district court finds
L.E.S. indigent, it should then proceed to apply the Lassiter test based
on the facts and circumstances as they stand at that point, in order to
determine whether L.E.S. should be appointed counsel based on federal
due process for the parental-rights termination proceeding going
forward.



   JUSTICE DURHAM, concurring:
    ¶ 41 I concur in the analysis and the result of the majority opinion’s
treatment of the federal due process question. I write separately to note
that the court should have first analyzed the state due process claim
raised by the appellant.
    ¶ 42 “[A] state court always is responsible for the law of its state
before deciding whether the state falls short of a national standard, so
that no federal issue is properly reached when the state’s law protects
the claimed right.” Hans A. Linde, E Pluribus—Constitutional Theory and
State Courts, 18 GA. L. REV. 165, 178 (1984).
      The right question is not whether a state’s guarantee is the
      same as or broader than its federal counterpart as
      interpreted by the Supreme Court. The right question is
      what the state’s guarantee means and how it applies to
      the case at hand. The answer may turn out the same as it
      would under federal law. The state’s law may prove to be
      more protective than federal law. The state law also may
      be less protective. In that case the court must go on to



                                   20
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                       DURHAM, J., concurring

      decide the claim under federal law, assuming it has been
      raised.
Id. at 179. This court has, on numerous occasions, cited this
methodology favorably.
     ¶ 43 In West v. Thomson Newspapers, we observed that, as a matter
of logic,
      [t]he proper sequence is to analyze the state’s . . .
      constitutional law[] before reaching a federal
      constitutional claim. This is required not for the sake
      either of parochialism or style, but because the state does
      not deny any right claimed under the federal Constitution
      when the claim before the court in fact is fully met by
      state law.
      By looking first to state constitutional principles, we also
      act in accordance with the original purpose of the federal
      system. Prior to the incorporation of the Bill of Rights,
      state constitutions were the only source of protection for
      individual rights and have continued as important
      sources of such rights ever since. Further, a growing
      number of courts have recognized both the utility and the
      legitimacy of fully exhausting state law before resorting to
      the federal constitution and accordingly have adopted the
      primacy model.
872 P.2d 999, 1006 (Utah 1994) (first alteration in original) (footnote
omitted) (citations omitted) (quoting Sterling v. Cupp, 625 P.2d 123, 126
(Or. 1981)).
    ¶ 44 In this case, appellant devoted nearly ten pages of a thirty-
four page opening brief to the state Due Process Clause, and pointed
out in his reply brief that appellees had failed to respond to his state
constitutional arguments. Under those circumstances, I believe the
court should have addressed them. Notwithstanding the ultimate result
in this case under federal law, there will remain an open question as to
the constitutionality of Utah’s appointment of counsel regime. See, e.g.,
In re Adoption of A.W.S., 339 P.3d 414, 419–20 (Mont. 2014) (concluding
that Montana’s constitutional right to equal protection requires that
counsel be appointed for indigent parents in termination proceedings
brought under the state’s Adoption Act).




                                   21
                                In re K.A.S.
                            LEE, J., dissenting

   ASSOCIATE CHIEF JUSTICE LEE, dissenting:
    ¶ 45 Parental-rights termination cases are heart-wrenching. They
present problems of enormous consequence—of severance of one of the
most cherished of all human bonds, with the safety and welfare of
children hanging in the balance. This is a matter on which our
sensitivity for justice is heightened. And for that reason I can appreciate
a desire to find a way to secure the appointment of counsel in a case
like this one. As a pure policy matter, I see significant upsides in
assuring that a parent has the benefit of legal counsel before his legal
rights are terminated.
   ¶ 46 That said, the issues before us are not policy questions. We are
not legislators voting on a statute guaranteeing appointed counsel in
parental-termination cases. We are judges faced with questions of
law—under our law of preservation, and on matters of statutory and
constitutional interpretation. And I find no basis in law for the
majority’s conclusions.
    ¶ 47 I respectfully dissent. First, I would hold that the father failed
to preserve a claim for a right to counsel under the Due Process Clause
and does not qualify under an exception to the rule of preservation. The
“exceptional circumstances” exception invoked by the majority is not
really a legal exception; it is more of a reservation of this court’s “right”
to reach the merits when we want to. We have never articulated
concrete standards giving any distinct content to “exceptional
circumstances.” That is troubling. We, of course, have the final say and
thus the ability to sidestep our own rules and precedents. But the fact
that we are a court of last resort does not justify our exercise of power
in a black box. We should exercise our discretion in a transparent and
consistent manner. I see no way to do so under the “exceptional
circumstances” doctrine. I would accordingly repudiate the exception
here and going forward, and limit our review of unpreserved errors to
those qualifying under the plain error doctrine or on a claim for
ineffective assistance of counsel.
    ¶ 48 Second, even assuming for the sake of argument that we can
excuse the father’s lack of preservation, I would reject his constitutional
claim on its merits. The standard set forth in Lassiter v. Department of
Social Services, 452 U.S. 18 (1981), prescribes a presumption against
appointment of counsel in parental-rights termination cases. The
majority turns that presumption on its head. It applies the Lassiter test
in a way that virtually guarantees appointment of counsel in most
every case in which a parent’s rights are in jeopardy. That may be a

                                     22
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                             LEE, J., dissenting

good idea as a policy matter, but it is not required by the Due Process
Clause—under either the United States Constitution or the Utah
Constitution. I would so hold.
                                      I
    ¶ 49 I find no basis for excusing L.E.S.’s failure to preserve a
constitutional claim to a right to counsel. He never asserted such a
claim in the district court. He never invoked the Due Process Clause as
a basis for appointment of counsel, and certainly never asked the
district judge to apply the due process balancing test in Lassiter v.
Department of Social Services, 452 U.S. 18 (1981).
    ¶ 50 The majority agrees. It concedes that L.E.S.’s constitutional
claims were not preserved. Yet it still reaches the merits on the basis of
so-called “exceptional circumstances.” In so doing the court says that
we reserve this exception for “unusual circumstances” in which “our
failure to consider an issue that was not properly preserved for appeal
would have resulted in manifest injustice.” Supra ¶ 19 (quoting Jacob v.
Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535). And it cites “unusual
procedural circumstances in this case” that purportedly qualify L.E.S.
for the exception. Supra ¶ 20.
   ¶ 51 I respectfully dissent. On reflection1 I have come to the
conclusion that the “exceptional circumstances” doctrine should be
repudiated. Our court has invoked this “exception” on a number of
occasions over the years. Yet we have never really given it any distinct

   1  When we issued a supplemental briefing order at an earlier stage
of this case, we indicated that we had “unanimously” concluded that
L.E.S. qualified for an exception to the rule of preservation.
Supplemental Briefing Order (September 21, 2015). That was true at the
time we issued the order. But I have since come to see the matter
differently. Perhaps that makes me a flip-flopper. I prefer to see it as
wisdom coming late—and better than not at all. See ARTHUR CONAN
DOYLE, The Man with the Twisted Lip, in THE ADVENTURES OF SHERLOCK
HOLMES 101 (Sam Vaseghi ed., Wisehouse Classics 2016) (1892) (“‘It has
been in some points a singular case,’ said Holmes, flicking the horse on
into a gallop. ‘I confess that I have been as blind as a mole, but it is
better to learn wisdom late than never to learn it at all.’”). In all events I
will say, as have many judges on many occasions, that the matter “does
not appear to me now as it appears to have appeared to me then.”
Andrews v. Styrap, 26 L.T.R. (N.S.) 704, 706 (Ex. 1872) (Bramwell, B.).



                                     23
                               In re K.A.S.
                            LEE, J., dissenting

content. In fact we seem to have gone out of our way to do the
opposite. We have spoken of the exceptional circumstances exception
as “ill-defined,” State v. Holgate, 2000 UT 74, ¶ 12, 10 P.3d 346, and our
court of appeals has referred to it as a doctrine that is not “precise” and
cannot “be analyzed in terms of fixed elements,” State v. Irwin, 924 P.2d
5, 8 (Utah Ct. App. 1996).
   ¶ 52 The majority follows a similar course in this case. Instead of
defining the content of the doctrine, the court continues the practice of
speaking in generalities. It concludes only that this is a “narrow
exception” reserved for “unusual procedural circumstances,” and
proceeds to list the circumstances in this case that strike the court as
noteworthy. Supra ¶ 20. That is doctrinally circular. If we are unwilling
or unable to define the content of the exceptional circumstances
doctrine, then we don’t really have a doctrine; we have a reservation of
our “right” to ignore a preservation problem when we find it
expedient.
   ¶ 53 That strikes me as unacceptable. This is a court of law. We
owe it to both the parties and the lower courts to operate in accordance
with a transparent set of legal principles. Such principles assure the
opportunity for evaluation of our decisions. They minimize the risk of
arbitrary decision making. And they facilitate reliance on our caselaw.
   ¶ 54 We undermine all of the above when we hide our analysis in
the confines of a black box. That is the effect, in my view, of the
“exceptional circumstances” doctrine applied today. Through the high-
sounding rhetoric of “manifest injustice” and “rare procedural
anomalies,” supra ¶ 19, we create the appearance of a legal standard.
But because we are unwilling to prescribe actual elements or standards
for this doctrine, we are really just reserving an unchecked right to
reach the merits when we want to. 2
   ¶ 55 The majority identifies “circumstances” that it deems
“exceptional.” It notes that the district judge “initially granted” L.E.S.’s

   2  See Tory A. Weigand, Raise or Lose: Appellate Discretion and
Principled Decision-Making, 17 SUFFOLK J. TRIAL & APP. ADVOC. 179, 181
(2012) (noting that application of an exceptional circumstances
exception can lead to “loss of clarity and consistency” due to “the lack
of uniform criteria or identifiable scale as to individual or cumulative
weight to be given to the multi-factor strain of the discretionary
exception”).



                                    24
                           Cite as: 2016 UT 55
                            LEE, J., dissenting

request for appointed counsel before he switched course. Supra ¶ 20.
And it concludes that that appointment left L.E.S. “unrepresented” and
unable “to make a sophisticated constitutional argument for the right to
counsel.” Supra ¶ 20. With this in mind, the court purports to state a
general holding: “When a party is appointed counsel who refuses to
make an argument for the right to counsel when that right is
challenged, and the party is barred from making that argument, and
the party then is denied counsel and subsequently would have to make
a sophisticated constitutional argument for the right to counsel with no
technical vehicle for making such an argument, exceptional
circumstances are met.” Supra ¶ 21. But that is not the statement of a
general rule. It is a summary of the facts of this case, followed by a
conclusion that we prefer to reach the merits. 3
    ¶ 56 The court’s summary of the circumstances of the case,
moreover, make this one seem rather unexceptional. First, I cannot see
how the initial appointment of counsel can make any difference. The
appointment, granted, made it initially more difficult for L.E.S. to
advance his constitutional claim as a pro se party—given that counsel
failed to respond to the county attorney’s motion asking the court to
retract the earlier appointment. See supra ¶ 20 (asserting that “L.E.S. had
no right to oppose the motion himself” while he was represented by
counsel). But there is no reason to suspect that the initial appointment
in any way inhibited L.E.S. from making a constitutional claim. 4 From

   3  The majority seeks to limit the exception that it adopts today by
asserting that L.E.S.’s lawyer “abdicated all responsibility by failing to
make any argument regarding L.E.S.’s right to representation.” Supra
¶ 21 n.3. But despite the rhetorical flourish, the majority’s ultimate
conclusion boils down to a failure of preservation on the issue raised on
appeal. The “abdicat[ion] of all responsibility” is purely in the failure to
raise an issue that the client wishes to raise on appeal. That problem
falls in the heartland of the law of preservation. And the usual (and in
my view appropriate) response to a failure to preserve is not to excuse
it on the ground that it amounts to abdication, but to deem it
insufficient as a matter of preservation.
   4  If L.E.S. had actually been precluded from preserving his
constitutional claim, then we could excuse his lack of preservation. We
would do so, however, not under a loose exception to the law of
preservation, but under one of its core tenets. The rule of preservation
incorporates a principle of reasonableness. A party has a duty to take
reasonable efforts to give the district court a chance to correct errors he
                                                                     (cont.)

                                    25
                               In re K.A.S.
                            LEE, J., dissenting



wishes to raise on appeal. State v. Pinder, 2005 UT 15, ¶ 46, 114 P.3d 551;
Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. That principle
incorporates a concept of impossibility and a doctrine of futility: A
party who cannot legally or practically object is not required to do so,
and our courts accordingly excuse a failure to object where doing so
would be futile. State v. Rothlisberger, 2004 UT App. 226, ¶ 29, 95 P.3d
1193. Yet L.E.S. comes nowhere close to qualifying under these
standards. He had every reason and opportunity to preserve his due
process claim; he just didn’t think to raise it.
    The majority bases its determination of “exceptional circumstances”
on the fact that “L.E.S. had no technical vehicle” for raising the Lassiter
issue because he had already been denied appointed counsel and
“[m]otions to reconsider are not recognized by the Utah Rules of Civil
Procedure.” Supra ¶ 20 (quoting Tschaggeny v. Milbank Ins. Co., 2007 UT
37, ¶ 15, 163 P.3d 615). But that analysis ignores the agency relationship
between a party and his lawyer. “For better or worse, our legal system
treats attorneys as agents for their clients. And on that basis we
generally deem clients responsible for the decisions they make on
advice of counsel.” In re Adoption of J.S., 2014 UT 51, ¶ 63, 358 P.3d 1009
cert. denied sub nom. Bolden v. Doe, 136 S. Ct. 31 (2015). Thus, L.E.S. did
have an opportunity to raise a due process right to appointed counsel.
The opportunity came to him at a time when he was represented by
counsel. And counsel’s failure to raise the argument is imputed to
L.E.S. He cannot avoid the effect of his lawyer’s failure to preserve an
issue at trial by identifying a new issue that he was “unable” to raise
because his lawyer failed to do so.
    The majority’s contrary conclusion threatens to swallow the law of
preservation. If a party can avoid the effects of a failure of preservation
by retaining new counsel on appeal and blaming the lack of
preservation on prior counsel, I suspect we will see a lot of new lawyers
retained on appeal. Perhaps that will be a boon to appellate specialists.
But it will undermine the fairness, efficiency, and reliance concerns
protected by our law of preservation. The majority’s standard cannot
stand. In time we will inevitably be forced to retract it. I would avoid
that eventuality by rejecting the majority’s approach here.
    The majority alludes to unspecified deficiencies in a malpractice
claim in these circumstances. Supra ¶ 21 n.3. It is undoubtedly true that
a malpractice action would not provide an avenue for L.E.S. to restore
his parental rights. But our law of preservation has never recognized an
exception along these lines—an exception measured by the adequacy of
                                                                     (cont.)

                                    26
                          Cite as: 2016 UT 55
                           LEE, J., dissenting

all that appears, neither L.E.S. nor his lawyer thought to make the
argument. And in any event there is no doubt that L.E.S. had the
chance to raise a constitutional claim in subsequent proceedings when
he was no longer represented by counsel. Again he just failed to do so.
    ¶ 57 That is why, presumably, the court falls back on the notion
that the Lassiter framework involves a “sophisticated constitutional
argument.” Supra ¶ 20. Fair enough. But the argument under Lassiter is
no more complex or “sophisticated” than any of a wide range of
constitutional claims we have long deemed subject to the law of
preservation. And presumably the court is not adopting a general
exception to the law of preservation for pro se parties advancing
“sophisticated” constitutional claims. 5 It is only asserting that “these
circumstances” are sufficient. Supra ¶ 21. But that strikes me as
inadequate. If we are unwilling to articulate a general rule, we leave the
impression that we are acting lawlessly. And in the absence of any such
rule here, I dissent from the invocation of the exceptional circumstances
doctrine. Finding nothing in our caselaw to define the contours of any
such rule, moreover, I would repudiate this doctrine going forward.
    ¶ 58 I see no real barrier in our cases to so doing. We have
adverted to an “exceptional circumstances” basis for an exception to the
law of preservation in a string of past cases. But we have rarely invoked
it in a case in which it made any difference. In most cases where we
have articulated this exception, in other words, we have either declined
to apply it 6 or proceeded to identify an alternative basis for appellate

the remedy in a malpractice suit. And this strikes me as an imprudent
step—and one we will be required to limit in future cases.
   5  Pro se litigants generally are held “to the same standard of
knowledge and practice as any qualified member of the bar.” State v.
Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation omitted). Thus, we
“accord[] every consideration that may reasonably be indulged” from
the arguments that a pro se litigant makes, id., but we do not excuse
such a party from the rules of preservation. Cf. id. ¶¶ 20–21 (finding
invited error and refusing to consider arguments raised on appeal). A
contrary rule would create chaos in our appellate system. And I assume
the majority is not abandoning this principle. But that only underscores
the loose, fact-driven nature of the majority’s decision.
   6 See, e.g., State v. Munguia, 2011 UT 5, ¶¶ 24–29, 253 P.3d 1082
(concluding that the “exceptional circumstances” exception was not
implicated by the facts of the case); State v. Nelson-Waggoner, 2004 UT
                                                                  (cont.)

                                   27
                               In re K.A.S.
                            LEE, J., dissenting

review (either a determination that the matter was preserved or that
review is necessary under the doctrine of plain error). 7

29, ¶¶ 15–16, 23–24, 94 P.3d 186 (same); In re Schwenke, 2004 UT 17, ¶ 34
& n.6, 89 P.3d 117 (same); State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)
(same); Jolivet v. Cook, 784 P.2d 1148, 1151 (Utah 1989) (same); State v.
Steggell, 660 P.2d 252, 254 (Utah 1983) (explaining that “[i]n the absence
of exceptional circumstances, this [c]ourt has long refused to review
matters raised for the first time on appeal,” and concluding that “[n]o
exceptional circumstances exist in the present case”); State v. Pierce, 655
P.2d 676, 677 (Utah 1982) (declining to address unpreserved
constitutional issue under the exceptional circumstances exception).
   7  See, e.g., State v. Low, 2008 UT 58, ¶¶ 19–49, 192 P.3d 867
(suggesting that “exceptional circumstances” was an established
doctrine, but ultimately applying “plain error”); State v. Dunn, 850 P.2d
1201, 1209 n.3 (Utah 1993) (recognizing the existence of the “exceptional
circumstances” doctrine, but noting that the exception was “ill-defined
and applies primarily to rare procedural anomalies,” and choosing to
“proceed under the better-established plain error exception” (citations
omitted)).
    Judge Roth of our court of appeals has suggested that the “most
prominent cases where Utah courts have found exceptional
circumstances and reviewed unpreserved issues are ‘where a change in
law or the settled interpretation of law color[s] the failure to have
raised an issue at trial.’” State v. Johnson, 2014 UT App 161, ¶ 34, 330
P.3d 743 (Roth, J., concurring) (alteration in original) (citing State v.
Lopez, 873 P.2d 1127, 1134 n.2 (Utah 1994); see also State v. Haston, 846
P.2d 1276 (Utah 1993) (per curiam)). This may be a wise limitation. But
we have never clearly articulated it—and certainly have never limited
the exceptional circumstances doctrine to these circumstances. See
Lopez, 873 P.2d at 1134 n.2 (allowing “independent analysis” on state
constitutional standard without deciding whether the issue was
adequately preserved; concluding that such briefing was permitted
because changes in federal constitutional law explained why the state
issue may not have been raised below; but failing to give any content to
the exceptional circumstances doctrine); Haston, 846 P.2d at 1277
(allowing appellant to assert that his conviction was “for a crime which
is not recognized in Utah”; but without mentioning “exceptional
circumstances,” much less defining it; and concluding that a denial of a
right to raise this argument “would deny [the] defendant due process,
as guaranteed under our federal and state constitutions”). Ultimately,
                                                                   (cont.)

                                    28
                            Cite as: 2016 UT 55
                            LEE, J., dissenting

    ¶ 59 In these circumstances I see no stare decisis reason to retain the
doctrine of exceptional circumstances. That follows from the fact that
the doctrine has rarely taken hold as a firm holding of the court, see
State v. Gardiner, 814 P.2d 568, 572 (Utah 1991) (noting that “this court is
not bound by earlier dicta”), and from the unpredictability and
unworkability of the doctrine, see Eldridge v. Johndrow, 2015 UT 21, ¶ 40,
345 P.3d 553 (noting that “to determine whether a precedent has
become firmly established,” the court first asks “how well it has
worked in practice”). Thus, I would observe the general rule of
preservation in this case and limit exceptions to those more firmly
rooted in our caselaw (plain error review and claims rooted in
ineffective assistance of counsel).
    ¶ 60 And I would affirm on that basis. L.E.S. cannot possibly
establish plain error. The Lassiter balancing test, as noted below, is
highly fact-intensive and case-specific. It can hardly be plain or obvious
that counsel should have been appointed under the Lassiter standard,
particularly where this court is divided on that same question. This is
not an appropriate case for an ineffective assistance of counsel claim,
moreover. Under established caselaw, such a claim is limited to the
criminal realm, in which a party has a Sixth Amendment right to
counsel. 8 This is not such a case, and L.E.S. has no basis for avoiding
the law of preservation by advancing a claim for ineffective assistance.
                                     II
   ¶ 61 Even accepting the majority’s “exceptional circumstances”
analysis for the sake of argument, I still would affirm. I would do so
under the Due Process Clause of the United States Constitution under
the standard set forth in Lassiter v. Department of Social Services, 452 U.S.
18 (1981), which articulates a presumption against the mandatory


moreover, a barrier to raising an issue in the district court might well fit
within the existing law of preservation (and not need an exception),
given that our law requires only reasonable efforts to preserve an issue
at trial. See supra ¶ 56 n.4.
   8 See Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006) (“The
general rule in civil cases is that the ineffective assistance of counsel is
not a basis for appeal or retrial. If a client’s chosen counsel performs
below professionally acceptable standards . . . the client’s remedy is not
reversal, but rather a legal malpractice lawsuit against the deficient
attorney.” (citation omitted)).



                                     29
                                In re K.A.S.
                             LEE, J., dissenting

appointment of counsel in a parental-rights termination case. I dissent
from the majority’s analysis because it seems to me to turn this
presumption on its head. This is a simple, straightforward parental-
rights termination case, and I would deem it subject to the presumption
against the appointment of counsel set forth in Lassiter.
    ¶ 62 That conclusion requires me to reach a question not addressed
by the majority—whether L.E.S. has a right to appointed counsel under
the Due Process Clause of the Utah Constitution, UTAH CONST. art. I,
§ 7. To decide that question I would begin with first principles—with
the text of the Utah Constitution as understood at the time of its
framing. And I would hold that L.E.S. has no right to appointed
counsel as a matter of Utah constitutional law because such right would
not have been recognized as a component of “due process” in 1896.
                                     A
    ¶ 63 The controlling due process framework under the United
States Constitution is that set forth in the Lassiter case. In Lassiter, the
court reiterated a longstanding “presumption that there is a right to
appointed counsel only where the indigent, if he is unsuccessful, may
lose his personal freedom.” 9 452 U.S. at 27. Yet it also left room for an

   9
      This presumption is a central tenet of the Lassiter opinion. The
presumption “against the right to appointed counsel” is stated in one
form or another at least four times in the court’s opinion. See Lassiter,
452 U.S. at 26–27 (stating of “the presumption that an indigent litigant
has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty,” and explaining that “[i]t is against this
presumption that all the other elements in the due process decision
must be measured”); id. at 27 (“We must balance [the Eldridge factors]
against each other, and then set their net weight in the scales against
the presumption that there is a right to appointed counsel only where
the indigent, if he is unsuccessful, may lose his personal freedom.”); id.
at 31 (“The dispositive question, which must now be addressed, is
whether the three Eldridge factors, when weighed against the
presumption that there is no right to appointed counsel in the absence
of at least a potential deprivation of physical liberty, suffice to rebut
that presumption and thus to lead to the conclusion that the Due
Process Clause requires the appointment of counsel when a State seeks
to terminate an indigent’s parental status.”); id. (“If, in a given case, the
parent’s interests were at their strongest, the State’s interests were at
their weakest, and the risks of error were at their peak, it could not be
                                                                      (cont.)

                                     30
                            Cite as: 2016 UT 55
                            LEE, J., dissenting



said that the Eldridge factors did not overcome the presumption against
the right to appointed counsel, and that due process did not therefore
require the appointment of counsel.”). With that in mind, I cannot see
how the majority can attribute to Lassiter the notion “that the
presumption against the right to counsel in civil cases has ‘generally’
been overcome in the parental-rights termination context.” Supra ¶ 36.
It is true that Lassiter cited cases that had “held that the State must
appoint counsel for indigent parents at termination proceedings.” Id. at
30. But I do not see how we can interpret Lassiter to have endorsed the
cited cases, or to suggest that their analysis represents a proper
weighing of the Eldridge factors. None of the cited cases engages in
Eldridge balancing. See Dep’t of Pub. Welfare v. J.K.B., 393 N.E.2d 406,
407–09 (Mass. 1979) (failing to acknowledge the presumption or the
Eldridge factors); State ex rel. Heller v. Miller, 399 N.E.2d 66, 70 (Ohio
1980) (same); In re Chad S., 580 P.2d 983, 984–86 (Okla. 1978) (same); see
also Danforth v. Maine Dep’t of Health and Welfare, 303 A.2d 794, 795 (Me.
1973) (ruling on appointed counsel issue before Eldridge created
presumption against it); In re Friesz, 208 N.W.2d 259, 260–61 (Neb. 1973)
(same); Crist v. Division of Youth and Family Servs., 320 A.2d 203, 209–11
(N.J. 1974) (same); In re Myricks, 533 P.2d 841, 842 (Wash. 1975) (same).
And the Lassiter court does not cite these cases to illustrate the proper
weighing of the Eldridge factors in the parental termination setting. The
cites appear only as a background description of existing practice.
    I cannot say whether the Lassiter court “lament[ed] . . . th[e] state of
affairs” represented by these cases. Supra ¶ 37. But it is beyond dispute
that its holding dramatically “change[d]” the legal landscape. Id. The
pre-Lassiter cases, just cited, each concluded that due process always
required the appointment of counsel in parental termination
proceedings. See Danforth, 303 A.2d at 795 (“We hold that an indigent
parent or parents against whom a custody petition is instituted under
22 M.R.S.A. § 3792 is entitled to have counsel appointed at the State’s
expense unless the right to counsel is knowingly waived.”); J.K.B., 393
N.E.2d at 408 (“[I]ndigent parents have a constitutional right to
appointed counsel, if they wish, before their parental rights are
terminated . . . .“ (footnote omitted)); In re Friesz, 208 N.W.2d at 260 (“A
parent’s concern for the liberty of the child, as well as for his care and
control, involves too fundamental an interest and right to be
relinquished to the State without the opportunity for a hearing, with
assigned counsel if the parent lacks the means to retain a lawyer.”
(internal citations omitted)); Crist, 320 A.2d at 210 (“For the State to
                                                                      (cont.)

                                     31
                               In re K.A.S.
                            LEE, J., dissenting


intrude permanently or only temporarily in a manner designed to
disassemble the nuclear family, society’s most basic human and
psychological unit, without affording counsel and guidance to a class of
society’s least equipped adversaries strikes the court as a fundamental
deprivation of procedural due process.”); State ex rel. Heller, 399 N.E.2d
at 70 (holding that “in actions instituted by the state to force the
permanent, involuntary termination of parental rights, the United
States and Ohio Constitutions’ guarantees of due process and equal
protection of the law require that indigent parents be provided with
counsel and a transcript at public expense for appeals as of right.”); In
re Chad S., 580 P.2d at 985 (“[T]he full panoply of procedural safeguards
must be applied to child deprivation hearings. This includes the right to
counsel[.]” (footnote omitted)); In re Myricks, 533 P.2d at 842 (“The
nature of the rights in question [in a child deprivation proceeding] and
the relative powers of the antagonists, necessitate the appointment of
counsel”).
     By contrast, the North Carolina judgment reviewed in Lassiter had
concluded the opposite—that appointment of counsel was not required
by the Due Process Clause. See Lassiter, 452 U.S. at 30–31. Indeed,
Lassiter notes that on the record before it, the North Carolina decision
was the only “presently authoritative case” to conclude “that an
indigent parent has no due process right to appointed counsel in
termination proceedings.” Lassiter, 452 U.S. at 30–31.
    Against this landscape, Lassiter affirmed. In so doing, it overruled
the nearly uniform consensus of cases reaching the opposite conclusion.
See id. at 31–34. The court held not only that there is a presumption
against the right to appointed counsel—even in parental termination
cases— but also that this presumption had not been satisfied in the case
before it. Id.
    The majority’s approach in this case cannot be reconciled with the
Lassiter opinion as a whole. On one hand, the majority claims fidelity to
the presumption stated repeatedly in Lassiter. Supra ¶ 22. On the other
hand, it also asserts (incorrectly, by taking a quote from Lassiter out of
context) that the presumption “has ‘generally’ been overcome in the
parental-rights termination context.” Supra ¶ 36. The court cannot have
it both ways. Either Lassiter states a presumption against appointment
of counsel or it doesn’t. In my view, the entirety of the Lassiter opinion
speaks unmistakably of a presumption. I see no way to read the citation
to pre-Lassiter cases as obviating everything else in the court’s
articulation and application of the law.

                                                                   (cont.)

                                    32
                            Cite as: 2016 UT 55
                             LEE, J., dissenting

exception to this general rule. It held that the factors in Mathews v.
Eldridge, 424 U.S. 319 (1976)—“the private interests at stake, the
government’s interest, and the risk that the procedures used will lead
to erroneous decisions”—may weigh “against the presumption that
there is a right to appointed counsel only where the indigent, if he is
unsuccessful, may lose his personal freedom.” Lassiter, 452 U.S. at 27.
    ¶ 64 The Lassiter opinion assessed the relevant Eldridge factors as
follows: “[T]he parent’s interest is an extremely important one (and
may be supplemented by the dangers of criminal liability inherent in
some termination proceedings); the State shares with the parent an
interest in a correct decision, has a relatively weak pecuniary interest,
and, in some but not all cases, has a possibly stronger interest in
informal procedures; and the complexity of the proceeding and the
incapacity of the uncounseled parent could be, but would not always
be, great enough to make the risk of an erroneous deprivation of the
parent’s rights insupportably high.” Id. at 31. Lassiter then set forth the
following standard for rebuttal of the above-stated presumption:
       If, in a given case, the parent’s interests were at their
       strongest, the State’s interests were at their weakest,
       and the risks of error were at their peak, it could not be
       said that the Eldridge factors did not overcome the
       presumption against the right to appointed counsel,
       and that due process did not therefore require the
       appointment of counsel. But since the Eldridge factors
       will not always be so distributed, and since “due
       process is not so rigid as to require that the significant
       interests in informality, flexibility and economy must
       always be sacrificed,” neither can we say that the
       Constitution requires the appointment of counsel in
       every parental termination proceeding. We therefore
       adopt the standard found appropriate in Gagnon v.
       Scarpelli, and leave the decision whether due process
       calls for the appointment of counsel for indigent
       parents in termination proceedings to be answered in
       the first instance by the trial court, subject, of course, to
       appellate review.
Id. at 31–32 (citations omitted).




                                      33
                                In re K.A.S.
                             LEE, J., dissenting

    ¶ 65 The Lassiter court applied this standard in a case involving an
incarcerated parent whose rights were severed on the basis of her
failure to “maintain concern or responsibility for the welfare” of her
child, and the determination that termination was in the “best interests
of the minor.” Id. at 24. In rejecting Ms. Lassiter’s asserted right to
appointment of counsel, the court focused on the nature of the issues in
the case and the perceived need for counsel to address them. It noted
that there were “no allegations of neglect or abuse upon which criminal
charges could be based,” id. at 32; it observed that “no expert witnesses
testified and the case presented no specially troublesome points of law,
either procedural or substantive,” id.; and it concluded that “the weight
of the evidence” was “sufficiently great that the presence of counsel for
Ms. Lassiter could not have made a determinative difference” in the
case, id. at 32–33.
    ¶ 66 I view the Lassiter opinion as highlighting the importance of
the third Eldridge factor—the “risk that the procedures used will lead to
erroneous decisions.” Id. at 27. It does so in several ways. First is the
court’s reiteration of the presumption against the appointment of
counsel (in a case in which incarceration is not a risk). The presumption
is a core premise of the court’s opinion. See id. at 26–27 (“[T]he
presumption [is] that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his physical
liberty. It is against this presumption that all the other elements in the
due process decision must be measured.”); id. at 27 (the court “must
balance [the Eldridge] elements against each other, and then set their net
weight in the scales against the presumption that there is a right to
appointed counsel only where the indigent, if he is unsuccessful, may
lose his personal freedom”); id. at 31 (“[t]he dispositive question . . . is
whether the three Eldridge factors, when weighed against the
presumption that there is no right to appointed counsel in the absence
of at least a potential deprivation of physical liberty, suffice to rebut
that presumption . . . .”). And the presumption must be understood in
light of the nature of the three factors from Eldridge: For the most part,
the private interests and the State’s interests are static, so the factor that
varies most from case to case is the third—the risk of error in a
proceeding in which the parent proceeds without appointed counsel.
    ¶ 67 The court’s opinion underscores that point in the way it
describes the three Eldridge factors. The discussion of the first two
factors is relatively short and straightforward. And the court’s
description of these factors is mostly static. The court speaks in terms of
the State’s interests as they will stand in most all cases—in assuring the


                                     34
                            Cite as: 2016 UT 55
                            LEE, J., dissenting

“welfare of the child,” in securing “an accurate and just decision,” and
in seeing that the “termination decision [is] made as economically as
possible.” Id. at 27–28. The description of the “private” interests of the
indigent parent is similarly static. Of that factor, the court highlights the
“commanding” nature of the “parent’s interest in the accuracy and
justice of the decision to terminate his or her parental status,” noting
that this interest may be enhanced in a case involving a risk of criminal
jeopardy. Id. at 27.
    ¶ 68 The court’s discussion of the third factor—the risk of error—is
different. Here the analysis is decidedly dynamic and clearly case-
dependent. The court observes (citing the State’s arguments) that the
“subject of a termination hearing”—“the parent’s relationship with her
child”—may be “one as to which the parent must be uniquely well
informed and to which the parent must have given prolonged
thought.” Id. at 29. It also states (again citing the State’s arguments) that
some termination proceedings are “not likely to produce difficult
points of evidentiary law, or even of substantive law, since the
evidentiary problems peculiar to criminal trials are not present and
since the standards for termination are not complicated.” Id. On the
other hand, the court notes that “the ultimate issues with which a
termination hearing deals are not always simple,” offering the example
of a case in which “[e]xpert medical and psychiatric testimony, which
few parents are equipped to understand and fewer still to confute, is
sometimes presented.” Id. at 30.
    ¶ 69 Finally, the court’s application of these standards to the
relevant facts in Lassiter underscores the crucial role of the third factor.
In concluding that Ms. Lassiter was not entitled to appointed counsel,
the Lassiter court cites circumstances rooted extensively in the risk of
error analysis—the lack of expert testimony or “troublesome points of
law, either procedural or substantive,” and the notion that the evidence
was sufficiently strong that a lawyer would not likely have made a
difference. See id. at 32–33.
   ¶ 70 For these reasons it seems to me that the Lassiter standard is
highly dependent on the third Eldridge factor. 10 Fidelity to the Lassiter

   10  The point is not to diminish the relevance of “the other two
factors” set forth in Lassiter. Supra ¶ 24 n.6. I agree with the majority
that these factors also “play a role.” Supra ¶ 24 n.6. But the point is that
the first two factors are mostly static, and it is principally the third
factor that will vary from case to case. So if we are to stay true to the
                                                                     (cont.)

                                     35
                               In re K.A.S.
                            LEE, J., dissenting

presumption, and to the above-stated standards, requires us to find a
due process right to counsel only in the unusual parental-rights
termination case—only in the case (unlike Lassiter or this case) in which
there are complex legal or evidentiary questions requiring an unusual
degree of legal expertise. 11 The calculus may change where there is a
risk of criminal jeopardy that supplements the parent’s interest; but no
such risk is present here. 12


Lassiter notion of a presumption against appointment of counsel—
denying counsel except in the exceptional case—our analysis must
depend most significantly on this last factor.
   11  This is the way that Lassiter has been understood in other
jurisdictions. See In re N.A., 193 P.3d 1228, 1257 (Haw. Ct. App. 2008)
(explaining that “[b]ecause the private interests of the parents and the
competing interests of the government are evenly balanced, the court’s
determination invariably hinges on the third factor”), abrogated by In re
T.M., 319 P.3d 338, 355 (ruling that indigent parents are guaranteed
appointed counsel under the Hawaii Constitution); In re Parental Rights
as to N.D.O., 115 P.3d 223, 226 (Nev. 2005) (“We expect that both the
parent’s interests and the State’s interests will almost invariably be
strong in termination proceedings.”); State ex rel. Juvenile Dep’t
Multnomah Cty. v. Grannis, 680 P.2d 660, 664 (Or. Ct. App. 1984) (noting
that under Lassiter, “the nature of the parental interest and of the
governmental interest are relatively constant and, generally, the only
variable for the court to consider in deciding whether to appoint
counsel is the extent of the ‘risk that the procedures used will lead to
erroneous decisions’”); S.C. Dep’t of Soc. Servs. v. Vanderhorst, 340 S.E.2d
149, 152–53 (S.C. 1986) (applying Lassiter but only analyzing the “risk of
error” prong); State ex rel. T.H. v. Min, 802 S.W.2d 625, 626–27 (Tenn. Ct.
App. 1990) (holding that the interests of parents and the state in a
termination-of-parental-rights proceeding are “evenly balanced” and
that the risk-of-error prong was thus the “main consideration”); but see
340 S.E.2d at 153 (“[W]e caution that under our interpretation of Lassiter
cases in which appointment of counsel is not required should be the
exception.”).
   12  Under Lassiter, this concern is implicated where the risk of
criminal jeopardy is “inherent” in the proceedings. See Lassiter, 452 U.S.
at 31. That is not at all the case here. At most there is a speculative risk
associated with vague charges of neglect, emotional abuse, and failure
to pay child support. Even the majority concedes that that is
                                                                     (cont.)

                                    36
                           Cite as: 2016 UT 55
                            LEE, J., dissenting

    ¶ 71 I would affirm because I find no such a basis for appointment
of counsel here. From all that appears from the record, this is a garden-
variety parental termination case in which the key issue concerns the
“the parent’s relationship with her child” 13—a matter on which the
parent is “uniquely well informed and to which the parent must have
given prolonged thought.”          Id. at 29. L.E.S. has identified no
“troublesome points of law,” no difficult evidentiary issues, and no
expert testimony that he was required to address. Nor has he identified
any evidence he would have presented—or opposing evidence he would
have rebutted more effectively—if he had been appointed a lawyer.
And these failures are fatal. 14 Absent any arguments along these lines, I
see no basis for a rebuttal of the presumption in Lassiter.


insufficient. See supra ¶ 26 n.8 (speculating that “there might . . . be
some danger of criminal liability based on allegations in the petition to
terminate L.E.S.’s rights,” but conceding that it is “not clear” that any
such danger is implicated here).
   13  In this case, as in Lassiter, the basis for termination was a
straightforward one—the assertion that the parent made “less than
token efforts” to communicate with the child. And that is one of those
grounds on which parents are “uniquely well informed.” Lassiter, 452
U.S. at 29–30. That will not always be the case. Our code identifies more
legally complicated grounds. See UTAH CODE § 78A-6-507 (setting forth
grounds for termination, including factually and legally complex
grounds such as “the parent is unfit or incompetent”).
   14  A principal basis for the termination of L.E.S.’s rights was parallel
to the basis in Lassiter—the failure to communicate with the child for a
significant period of time. Here there was undisputed evidence on that
point. And as in Lassiter, the “weight of the evidence” on this point
“was sufficiently great that the presence of counsel . . . could not have
made a determinative difference.” See Lassiter, 452 U.S. at 32–33. At
least L.E.S. has made no effort to show that it would have made a
difference. And that is fatal under Lassiter.
    It is not enough to say that L.E.S., unlike the parent in Lassiter, “has
clearly shown interest in his child.” Supra ¶ 35 n.10. Showing an
interest is insufficient under Utah law. To satisfy Utah law, L.E.S. was
required to “communicate” with his child. See UTAH CODE § 78A-6-
507(1)(f)(i). The undisputed evidence at trial showed that L.E.S. had
failed to fulfill this requirement. And no evidence presented on appeal
suggests that “the presence of counsel . . . could . . . have made a
                                                                     (cont.)

                                    37
                              In re K.A.S.
                           LEE, J., dissenting

    ¶ 72 The majority opinion acknowledges the Lassiter presumption.
Supra ¶ 22. And it cites no significant legal or evidentiary complexities
of this case—no expert testimony at issue and no difficult question of
legal analysis—that heightened the risk of error. Indeed the court
concedes that there was “no expert medical or psychiatric testimony or
other similarly complicated evidence [] brought before the court” and
acknowledges “the apparent simplicity of the record.” Supra ¶ 34. Yet
the court nonetheless speculates that “it is possible” that such
complications could be introduced into the case—that if L.E.S. had
“been represented by counsel, such [expert] testimony may have been
brought” and the “simple and uncomplicated” case presented could
well have been less so. Supra ¶ 34. Thus, the court says that “the
apparent simplicity of the record may be due to the fact that L.E.S.
represented himself pro se and had no opportunity to present more
complicated evidence and argument with the aid of counsel.” Supra
¶34. On that basis, the majority “conclude[s] that the risks of error in
this case were significant,” and sufficient to rebut the presumption
against appointment of counsel. Supra ¶ 34.
   ¶ 73 This analysis is unfaithful to Lassiter. By engaging a
counterfactual hypothetical instead of analysis of the actual case
presented, the court effectively inverts the Lassiter presumption. If the
hypothetical possibility that a lawyer could transform a straightforward
case into a complicated one is enough, then most any indigent parent
will be entitled to counsel. That can most always be said. 15 In future

determinative difference” on this issue. L.E.S. has not identified
evidence that he communicated with his child that was not presented
due to missteps of counsel. That is fatal regardless of L.E.S.’s supposed
“interest” in his child.
   15  The court claims to identify two unique features of this case that
contribute to the perceived risk of error—the fact that L.E.S. was
temporarily given counsel before he lost it and the fact that L.E.S. was
incarcerated. Supra ¶¶ 31–32. But neither of these considerations
meaningfully affects the complexity of the proceeding or the risk of
error. Nothing in the record—or even in simple logic—supports the
notion that having a lawyer for a brief period of time would make
things worse than never having one at all. And the fact of incarceration
clearly cannot be enough. Ms. Lassiter was incarcerated, but the court
nonetheless concluded that there was an insufficient risk of error to
justify appointment of counsel. Lassiter, 452 U.S at 20. And so this fact
cannot in and of itself be determinative—unless we mean to flip the
                                                                  (cont.)

                                   38
                          Cite as: 2016 UT 55
                           LEE, J., dissenting

cases, a Utah parent seeking appointed counsel will not bear the
burden set forth in Lassiter; he need only cite paragraph 33 of today’s
opinion—noting the hypothetical possibility that a lawyer could turn a
“simple and uncomplicated” case into a complex one, and concluding
that that renders the risk of error “significant” enough to justify
counsel’s appointment. 16 And if that is enough—as it apparently is
under today’s majority opinion—then we have flipped the Lassiter
presumption. 17


presumption set forth in Lassiter (a move we lack the authority to
make).
   16 In the usual case the argument will be even easier than it is here.
At the outset of a proceeding the exact contours of a case will be
unknown. And at that stage the savvy parent will always be able to
assert a potential for complexity (and thus for a risk of error).
   17 I agree with the majority that the task before us is to “faithfully
apply Lassiter to the facts of each case,” not to make an “empirical”
prediction as to the “pattern of outcomes” in the run of the cases. Supra
¶ 36. And contrary to the majority’s characterization, my analysis
makes no empirical claim that a proper application of the presumption
in Lassiter will result in appointment of counsel only rarely. My point is
not to object to any “outcomes” that may follow from our decision in
this case. It is to observe that if the majority’s framework will require
the appointment of counsel in even the most simple, straightforward
case, then we have reason to question the fidelity of that framework to
the standard set forth in Lassiter.
    This case is a simple and straightforward one. The court’s authority
to terminate L.E.S.’s rights turned on whether he made “only token
efforts . . . to support or communicate with the child.” UTAH CODE
§ 78A-6-507(1)(f)(i). It is difficult to envision a legal issue in the
termination of parental rights context that could be more
straightforward and accessible than this one. It is equally difficult to
identify a subject matter over which a parent would have greater
knowledge. If, as the majority holds, the Lassiter presumption is
overcome in this case, it is hard to conceive of a parental-termination
case in which the presumption would not be overcome. And if
appointed counsel is effectively required in every parental-termination
case under the majority’s framework, then we have circumvented the
Lassiter presumption while still paying homage to it. The predicted
“pattern of outcomes,” in other words, is troubling not because the
                                                                   (cont.)

                                   39
                               In re K.A.S.
                            LEE, J., dissenting

    ¶ 74 Fidelity to Lassiter demands that we affirm the district court’s
decision not to appoint counsel for L.E.S. The majority’s analysis of the
significance of the parent’s interest in maintaining a relationship with
his child, supra ¶¶ 25–26, and the State’s interests (a weak pecuniary
interest in opposing appointment, and a shared interest in protecting
the child and assuring a just outcome), supra ¶¶ 27–28, is insufficient.
These points are broadly applicable premises that will hold in most any
case. And such considerations cannot suffice to rebut the Lassiter
presumption unless we are effectively inverting it.



outcomes are objectionable, but because the revealed pattern suggests
that we have not in fact “faithfully appl[ied] Lassiter.” Supra ¶ 36.
Perhaps there is circular comfort in insisting that “whatever pattern of
outcomes emerges . . . is the pattern of outcomes required by the law.”
Supra ¶ 36. But Lassiter prescribes a presumption against the
appointment of counsel in parental termination cases. So if the
majority’s approach demands appointment in the run of the mill case,
we have reason to question the compatibility of that approach with “the
law” as stated in Lassiter.
    The majority insists that “even if” appointment of counsel will be
required in many cases, such a result stems not from our application of
the Lassiter test but “from the existence of a statutory right to counsel
under Utah Code section 78A-6-1111(1)(c).” Supra ¶ 38 n.11. But the
statutory right to counsel in state-initiated proceedings tells us nothing
about the existence of a constitutional right to counsel in privately filed
cases. The majority’s contrary conclusion confuses the due process
inquiry by importing elements of L.E.S.’s equal protection claim—
which the court purports to avoid. See supra ¶ 22 n.4. L.E.S.’s due
process right to counsel under Lassiter is not at all affected by the
legislature’s decision to afford counsel in state-initiated cases. And
regardless of whether the case was filed by the state or by a private
party, the question is whether the Lassiter factors weigh in favor of a
right to appointed counsel. In any event, when determining whether a
constitutional right to counsel exists, I see no reason to conclude that
the Lassiter test would result in the denial of counsel in a large number
of state-initiated cases, as the majority suggests. Supra ¶ 38 n.11. In
those cases, as with privately initiated cases, the key question would be
the complexity and difficulty of the case. And counsel would be
required as a matter of due process only in cases in which counsel is
necessary to avoid a substantial risk of error.


                                    40
                            Cite as: 2016 UT 55
                             LEE, J., dissenting

    ¶ 75 The court claims to find two unique features of this case in its
analysis of the “private interest” and “government interest” factors. On
the former the majority speculates that there may be “some concern
regarding the risk of self-incrimination in this case” given that “the
district court found that L.E.S. should have taken K.A.S.’s mother to
court for refusing to facilitate visits but that he did not do so because
‘he was afraid because he was on drugs,’” and “the district court also
noted that L.E.S.’s ‘extensive substance abuse is terms of neglect.” Supra
¶ 26. But this is a concern of the court’s own imagining. L.E.S. failed to
raise it in his briefs on this appeal, and the adoptive parents have
therefore not been heard on the matter. And in any event a vague
allusion to past drug use does not prove that there was a tangible risk
of self-incrimination. I would not so conclude here—certainly not
without adversary briefing on the matter.
    ¶ 76 As to the second Eldridge factor, the court asserts that “the
State’s interest in terminating L.E.S.’s parental rights was . . . less urgent
in this case than it was in Lassiter[] because this parental-rights
termination proceeding was initiated and advanced by a private party
rather than by the State.” Supra ¶ 28. But I do not see how that follows.
Any and all termination proceedings implicate the State’s power and
the State’s interest in protecting the safety and welfare of the child. See
supra ¶ 28 (acknowledging that “the State is necessarily involved in the
termination of parental rights since only the State can terminate a
parent’s rights to his or her child”). I see nothing in the record or in our
law to support the court’s premise that the State’s interest is diminished
in a case initiated by a private party. Certainly the interests of the child
are the same regardless of who initiates the case. And the parent’s
interests are likewise unaltered. Where our law authorizes private
parties to sue to initiate a parental-rights termination case, we should
presume that such a case is advancing governmental policy.
    ¶ 77 Finally, on the third factor, the court claims that the risk of
error is more significant in a proceeding initiated by a private party
because “L.E.S. has not enjoyed the additional protections provided in
state-initiated termination cases.” Supra ¶ 31. But this is the wrong
baseline. Under Lassiter the question is not whether we can identify
other cases in which the risk of error is diminished (due to “additional
protections” afforded by statute or otherwise). It is whether the risk of
error is unreasonably “significant” as that inquiry is framed in the
Lassiter opinion.
   ¶ 78 The Lassiter court framed the inquiry by reference to North
Carolina procedures available to the parent in that case. Lassiter, 452

                                     41
                               In re K.A.S.
                            LEE, J., dissenting

U.S. at 28–29 (describing the procedures North Carolina established to
“assure accurate decisions” in termination proceedings). And it found
the risk of error insufficient to sustain the conclusion that counsel was
necessary as a matter of due process. Id. at 32–33. That should be
dispositive here. L.E.S. faced no greater risk than that faced by the
parent in Lassiter. The Utah procedures afforded to L.E.S. are parallel to
those available under North Carolina law in Lassiter. Compare Lassiter,
452 U.S at 28–29, with UTAH CODE §§ 78A-6-503 to -507. And, as stated
above, L.E.S. has identified no “troublesome points of law,” no difficult
evidentiary issues, and no expert testimony that he was required to
address.
   ¶ 79 For these reasons I view the Lassiter presumption as
controlling here. I see no basis for a rebuttal of that presumption in this
case. And I dissent from the majority’s contrary conclusion, which
seems to me to invert the presumption announced by the court.
                                    B
   ¶ 80 The controlling due process framework under the Utah
Constitution has not been established in our caselaw. 18 To resolve
L.E.S.’s state constitutional claim, I would accordingly begin with first
principles—with the text of the Utah Due Process Clause, and with the
meaning of those terms at the time of the framing of our Utah
Constitution. 19 I would examine the “plain meaning” of the text of the
Utah Constitution in light of “historic experience” and the

   18 In our past cases, we have adverted to claims under the Due
Process Clause of the Utah Constitution. See In re Adoption of J.S., 2014
UT 51, ¶ 42, 358 P.3d 1009, cert. denied sub nom. Bolden v. Doe, 136 S. Ct.
31 (2015); State v. Munguia, 2011 UT 5, ¶¶ 15–18, 253 P.3d 1082; Wells v.
Children’s Aid Soc’y of Utah, 681 P.2d 199, 204 (Utah 1984); Untermyer v.
State Tax Comm’n, 129 P.2d 881, 885 (Utah 1942). But there is no
established standard for state due process that differs from the
standard(s) articulated by the U.S. Supreme Court under the United
States Constitution. See In re Adoption of J.S., 2014 UT ¶ 57 (repudiating
the formerly heightened state due process standard articulated in Wells,
681 P.2d 199). I would address the state due process question here
because I conclude that L.E.S.’s federal claim falls short.
   19State v. Houston, 2015 UT 40, ¶¶ 148–57, 353 P.3d 55 (Lee, A.C.J.,
concurring) (making the case for originalist interpretation of the Utah
Constitution and rebutting critiques of this methodology).



                                    42
                           Cite as: 2016 UT 55
                            LEE, J., dissenting

“presuppositions of those who employed them,” keeping in mind
“Utah’s particular traditions at the time of drafting.” American Bush v.
City of S. Salt Lake, 2006 UT 40, ¶¶ 10, 12 140 P.3d 1235.
    ¶ 81 L.E.S. purports to advance an originalist basis for his state due
process claim. He cites late nineteenth-century history in support of the
notion that our Utah founders valued parenthood and family unity
highly, so much so that they embraced a religious belief that family
bonds continue beyond this world. L.E.S. notes, in particular, the
history of anti-polygamy raids in Utah, emphasizing the length to
which our Utah founders went to protect their legal relationships with
their children, and positing that they would have found parental-rights
termination proceedings problematic. From that premise, L.E.S. posits
that the framers of the Utah Constitution would have been in favor of
appointment of counsel in a parental-rights termination proceeding.
And he urges us to read one into the Utah Due Process Clause on this
basis.
   ¶ 82 The cited history is interesting. And a party should always be
commended for seeking to tie his constitutional analysis to the original
meaning of the text.20 Here, however, L.E.S.’s history falls short because

   20 Too often the briefing on a novel question of constitutional law
takes the form of a pure policy argument. A typical argument on an
issue of state constitutional law would take the following form: (a) the
Utah Supreme Court is not bound to follow the U.S. Supreme Court’s
construction of similar or analogous provisions of the United States
Constitution in our interpretation of the Utah Constitution, (b) federal
precedent is inadequate because it fails to advance some particular
policy concern of importance to the claimant, and (c) therefore, this court
should embrace an expansionist view of state constitutional law that
advances the claimant’s policy concern. A few of our precedents even
seem to encourage this type of analysis. See, e.g., Soc’y of Separationists,
Inc. v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993) (“We have
encouraged parties briefing state constitutional issues to use historical
and textual evidence, sister state law, and policy arguments in the form of
economic and sociological materials to assist us in arriving at a proper
interpretation of the provision in question.” (emphasis added)). But the
conclusion can hardly follow from the premise. In interpreting the
constitution, we must be interpreting the constitution—and not just
vindicating policy concerns that we deem important. Houston, 2015 UT
¶¶ 154–57 (Lee, A.C.J., concurring) (noting that the court must construe
constitutional terms “as originally understood” and that “[a]
                                                                     (cont.)

                                    43
                                In re K.A.S.
                             LEE, J., dissenting

it is at far too high a level of generality. L.E.S. hasn’t presented anything
of relevance to the founding-era meaning of “due process.” He has
simply asserted that families were important to the generation that
framed the Utah Constitution. That is undoubtedly true. But it tells us
little or nothing about how far they were inclined to go in protecting
families ties, and even less about whether they thought their
inclinations were enshrined in the constitutional guarantee of “due
process.”
   ¶ 83 To answer that question, we must look to the historical
understanding of the principle of due process. And we must ask
whether that principle encompasses a right to a lawyer appointed and
paid for by the State. The answer to that question is no. I would reject
L.E.S.’s state constitutional claim because it finds no support in the
1890s-era understanding of “due process” and because it is
undermined by the proceedings of the Utah constitutional convention.
                                     1
    ¶ 84 Historically, the guarantee of “due process of law” was
understood as a legal term of art encompassing long-established
principles associated with “the law of the land.” EDWARD COKE, THE
SECOND PART OF THE INSTITUTIONS OF THE LAWS OF ENGLAND 46, 50 (3d
ed. 1669). This is the understanding of “due process” that prevailed in
the U.S. Supreme Court throughout the nineteenth century. A classic
statement is set forth in Murray v. Hoboken Land & Imp. Co., 59 U.S. 272
(1855): “The words, ‘due process of law,’ were undoubtedly intended to
convey the same meaning as the words, ‘by the law of the land,’ in
Magna Charta.” Id. at 276 (citation omitted). 21
    ¶ 85 The “law of the land” was widely understood to encompass
three basic guarantees: “(1) it rendered the King’s power subject to
‘law’; (2) it guaranteed the barons a right to participate in decisions

constitution rooted in ‘evolving standards’ arising out of a judge’s
‘humanitarian instincts’ is no constitution at all”). To do so we must
examine the text of the operative document and begin with its original
meaning.
   21  See William D. Guthric, Constitutionality of the Sherman Anti-Trust
Act of 1890, 11 HARV. L. REV. 80, 84 (1897) (noting that the “historic
term, ‘due process of law,’ or its equivalent, ‘the law of the land,’” has
shielded people from oppression and embodied “the foremost of our
liberties” for centuries).



                                     44
                           Cite as: 2016 UT 55
                            LEE, J., dissenting

which affected them; and (3) it assured equal treatment” under law. 22
Thus, the guarantee of “due process” served as “a restraint on the
legislative as well as on the executive and judicial powers of the
government.” Murray, 59 U.S. at 276. But the restraint on legislative
power operated to prevent rather than require deviations from
traditional notions of due process.
    ¶ 86 In Murray, the United States Supreme Court laid out a
historical test for determining whether a certain procedure satisfied
“due process of law.” Id. at 277. First, the court should “examine the
constitution itself” and see if the procedure directly conflicts with any
of its provisions. Id. If not, the court should then “look to those settled
usages and modes of proceeding existing in the common and statute
law of England” as well as “the legislation of the colonies and
provinces, and more especially of the States.” Id. at 277–78. If a
procedure was consistent with the practice of the common law and
with “the laws of many of the [s]tates at the time of the adoption of this
amendment” then it “cannot be denied to be due process of law.” Id. at
280.
    ¶ 87 In later cases, the United States Supreme Court elaborated
upon this test. It explained that while a historical pedigree was
sufficient condition for the “due process of law,” the Constitution did
not forbid innovative procedures that were not rooted in the common
law tradition. The court noted that that would “deny every quality of
the law but its age, and . . . render it incapable of progress or
improvement.” Hurtado v. California, 110 U.S. 516, 529 (1884). Yet the
court continued to reiterate that a practice rooted in historical tradition
would survive due process scrutiny. It held that “any legal proceeding
enforced by public authority . . . which regards and preserves these
principles of liberty and justice, must be held to be due process of law.”
Id. at 537. And it noted that the Due Process Clause thus “refers to
certain fundamental rights which [our] system of jurisprudence . . . has
always recognized.” Id. at 536 (citing Brown v. Bd. of Levee Comm’rs, 50
Miss. 468, 480 (1874) (emphasizing the requirements of jurisdiction,
notice, and process as integral to due process of law)).
   ¶ 88 The United States Supreme Court identified certain
“principles of liberty and justice” that are integral to due process and
are generally guaranteed as tenets of due process: “regular allegations,

   22 Jane Rutherford, The Myth of Due Process, 72 B.U. L. REV. 1, 9 (1992)
(footnotes omitted).



                                    45
                                In re K.A.S.
                             LEE, J., dissenting

opportunity to answer, and a trial according to some settled course of
judicial proceedings.” Murray, 59 U.S. at 280; see also Wilkinson v. Leland,
27 U.S. 627, 657 (1829) (forbidding the exercise of eminent domain
power “without trial, without notice, and without offence”). With the
exception of certain summary procedures where these demands may
not apply, such guarantees form the core protections of the Due Process
Clause. See Murray, 59 U.S. at 280.
    ¶ 89 State due process provisions were interpreted in a similar
fashion. In decisions throughout the eighteenth and nineteenth
centuries, state supreme courts interpreted their state due process
clauses to preserve a similar set of principles. The Tennessee Supreme
Court, for example, interpreted that state’s due process provision as a
guarantee that all laws were “equally binding upon every member of
the community,” and not just available to certain favored groups.
Sheppard v. Johnson, 21 Tenn. 285, 296 (1841); see also State v. Stimpson, 62
A. 14, 18 (Vt. 1905); Eden v. People, 43 N.E. 1108, 1109 (Ill. 1896). Other
state supreme courts likewise embraced such a “law of the land” notion
of due process. 23 In other states, the courts extended the due process
principle to protect against the infringement of certain fundamental
tenets of due process, such as the right to a trial, Zylstra v. Corp. of
Charleston, I S.C.L. (I Bay) 382 (1794), and a nonarbitrary procedure of


   23 See Wynehamer v. People, 13 N.Y. 378, 426 (1856) (characterizing the
guarantee of due process as “law in its regular administration through
courts of justice” (citation omitted)); Harbison v. Knoxville Iron Co., 53
S.W. 955, 957 (Tenn. 1899) (“What, then, is ‘due process of law,’ or ‘the
law of the land’? The two phrases have exactly the same import, and
that which is entitled to recognition as the one is to be recognized as the
other also.”), aff’d, 183 U.S. 13 (1901); Rowan v. State, 30 Wis. 129, 148
(1872) (“due process” and “law of the land” mean the same thing). This
was also the understanding of “due process” that prevailed at the time
of the ratification of the Fourteenth Amendment. See Cong. Globe, 37th
Cong., 2d. Sess. 345–49 (1862) (statement of Rep. Bingham, a sponsor of
the amendment) (pointing to existing caselaw on the subject and
explaining that due process of law was a synonym for the phrase “law
of the land”); see also Akhil Reed Amar, The Bill of Rights and the
Fourteenth Amendment, 101 YALE L.J. 1193, 1225 (1992) (discussing
Bingham’s remarks and the prevailing understanding of the phrase
“due process” at the time of the ratification of the Fourteenth
Amendment).



                                     46
                           Cite as: 2016 UT 55
                            LEE, J., dissenting

adjudication under their state due process clauses, Vanzant v. Waddel,
10 Tenn. (2 Yer.) 260 (1829).
   ¶ 90 Thus, the prevailing understanding of the Due Process Clause
through the eighteenth and nineteenth centuries can generally be
summarized as follows: Procedures which were consistent with the
common law and historical tradition were presumptively permissible,
while new procedures were permissible so long as they did not deny
one of the core protections of due process, such as a right to notice and
a meaningful opportunity to be heard.24
                                     2
   ¶ 91 The historical understanding of “due process”—the view that
prevailed at the time of the framing of the Utah Constitution—cannot
be deemed to encompass a right to a lawyer paid for by the
government. Nor can this principle be understood to yield to courts the
power to prescribe evolving standards of constitutional “fairness”
based on an assessment of the costs and benefits of innovations in
procedure.
    ¶ 92 We possess the power to assure fair procedure—and to do so
by weighing costs and benefits. “But our usual course for so doing is by
promulgating rules of procedure.” In re Steffensen, 2016 UT 18, ¶ 7, 373
P.3d 186. Thus, the Due Process Clause does not impose upon us “a
duty to establish ideal systems for the administration of justice, with
every modern improvement and with provision against every possible
hardship that may befall.” Id. ¶ 7 n.2 (quoting Ownbey v. Morgan, 256
U.S. 94, 110–11 (1921)). “[T]he Due Process Clause is not a free-
wheeling constitutional license for courts to assure fairness on a case-
by-case basis.” Id. ¶ 7. It is a historically driven test “measured by
reference to ‘traditional notions of fair play and substantial justice’” Id.
(citing ClearOne v. Revolabs, 2016 UT 16, ¶ 8, 369 P.3d 1269).
   ¶ 93 I would interpret the Utah Due Process Clause in accordance
with the historical understanding set forth above. And I would
accordingly reject L.E.S.’s claim to a constitutional right to appointed
counsel.
    ¶ 94 L.E.S. has identified no historical basis for a due process right
to a lawyer paid for by the state. The procedures afforded him accord
with historical due process: He was given notice and a meaningful

   24See generally Andrew T. Hyman, The Little Word “Due”, 38 AKRON
L. REV. 1 (2005).



                                    47
                                In re K.A.S.
                             LEE, J., dissenting

opportunity to be heard, and the procedures available to him were in
line with those secured historically. Because L.E.S. is seeking a novel
advancement in procedure, his recourse is elsewhere—in a proposal for
legislative reform, for example—and not in a state constitutional claim.
   ¶ 95 I am aware of no historical evidence supporting the right to
paid counsel. At the time of our Utah founding, a number of states had
begun to provide for appointment of counsel in criminal cases. 25 But
none extended this right beyond the criminal context.26 And in the
criminal realm, the right secured by the states was a legislative
innovation, not a judicial one. And no one thought that such a right
was inherent in the constitutional guarantee of due process. 27
    ¶ 96 This held in Utah around the time of our founding. Our 1898
code provided for appointed counsel for indigent defendants in
criminal cases, see UTAH REVISED STATUTORY CODE OF 1898, § 4767, but
nowhere in our law was there a right to appointed counsel in a civil
setting. And of course there was no indication in the early years of our
state that anyone thought that “due process” guaranteed a lawyer paid
for by the state (in a criminal case or otherwise).
    ¶ 97 The debates in our Utah constitutional convention support
this conclusion. A relevant part of the debate took place on March 23,
1898. On that date, the question arose as to whether the article 1 section
12 right not to be “compelled to advance money or fees to secure the
rights herein guaranteed” also guaranteed a right to paid counsel. 1

   25 See Betts v. Brady, 316 U.S. 455, 470 n.26 (1942) (citing state statutes
of twelve states providing for appointed counsel for capital cases or
cases of felony or other grave crime in the 1800s).
   26 See generally John MacArthur Maguire, Poverty and Civil Litigation,
36 HARV. L. REV. 361, 388 (1923) (noting that as of the 1920s only a
dozen states “g[a]ve their courts power to assign lawyers to needy
suitors” and twenty states had no in forma pauperis provisions for the
poor at all). And in those states that had provisions for the appointment
of an attorney for indigent parties in civil suits, payment frequently was
not guaranteed. See Bd. of Comm’rs of Howard Cty. v. Pollard, 55 N.E. 87,
87 (Ind. 1899). So those appointed could refuse by arguing that such an
appointment would be an unconstitutional commandeering of services.
See Blythe v. State, 4 Ind. 525, 525 (1853).
   27See Betts, 316 U.S. at 470–71 (observing that “the matter has
generally been deemed one of legislative policy”).



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                           Cite as: 2016 UT 55
                            LEE, J., dissenting

PROCEEDINGS IN THE CONSTITUTIONAL CONVENTION OF 1898, at 308
(proceeding of March 23, 1898). Mr. Eldredge asked Mr. Evans (of
Weber) what would happen to the “the poor fellow that has no
money.” Id. Evans responded that “[t]hat is usually provided by the
legislature” and that “[i]t is a very unusual thing in constitutions, but a
very usual thing in the statutory laws.” Id. That is significant. And no
one raised a parallel question regarding the article 1 section 11 right in
“any civil cause to which he is a party” to “prosecut[e] or defend[]
before any tribunal in this State, by himself or counsel.” See UTAH
CONST. of 1896 art. I, § 11.
    ¶ 98 For these reasons, I see no basis for finding a state
constitutional right to appointed counsel in a case like this one. Due
process is not a charter for “free-wheeling authority for the courts to
second-guess the wisdom or fairness of legislative policy judgments.”
In re Adoption of B.Y., 2015 UT 67, ¶ 27, 356 P.3d 1215 (citation omitted).
It is an assurance of a right to traditional, longstanding tenets of due
process, such as a “reasonable notice and an opportunity to be heard.”
Id. ¶ 16. I would reject L.E.S.’s claim because he cites no such basis for a
right to appointed counsel.
                                    III
    ¶ 99 When a novel question of constitutional law presents itself, it
is tempting to treat the question as an invitation to vindicate our gut-
level sense of “justice,” or in other words our sense of good policy. That
temptation is heightened when the matter at hand is as sensitive and
difficult as the one at issue here—of appointment of counsel in a
parental-rights termination case. I can understand the impulse to find a
basis for such an appointment. But I find no such basis in constitutional
law. And in the absence of such a basis, I would leave the matter to the
legislature.
    ¶ 100 That is the branch of government with the power and
experience necessary to decide on the wisdom of allocating public
money to support appointment of counsel. And it is the branch of
government that has direct accountability to the people. Perhaps in
time the legislature will decide that paid counsel should be appointed
in a case like this one. Unless and until that happens, I would not find a
legal right to appointed counsel in parental-termination cases.




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