Edward Crowell v. State Public Defender v. Iowa District Court for Linn County

IN THE SUPREME COURT OF IOWA
No. 12–2226

Filed February 12, 2014

EDWARD CROWELL,

Appellee,

vs.

STATE PUBLIC DEFENDER,

Appellant.
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IOWA DEPARTMENT OF MANAGEMENT,

Plaintiff,

vs.

IOWA DISTRICT COURT FOR LINN COUNTY,

Defendant.

Appeal from and certiorari to the Iowa District Court for Linn

County, Jane F. Spande, District Associate Judge.

State agencies challenge a district court order appointing counsel

at public expense in a termination-of-parental-rights proceeding under

Iowa Code chapter 600A. DISTRICT COURT JUDGMENT AFFIRMED;

WRIT ANNULLED.

Samuel P. Langholz, State Public Defender, Julie A. Miller,

Assistant State Public Defender, for appellant.
 2

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy

Attorney General, and Meghan L. Gavin, Assistant Attorney General, for

plaintiff.

Edward F. Crowell, Cedar Rapids, pro se.
 3

APPEL, Justice.

A juvenile court ordered the State Public Defender to pay for court-

appointed counsel for an indigent parent in a contested termination-of-

parental-rights proceeding brought pursuant to Iowa Code chapter 600A

(2013). The juvenile court concluded that although the indigent parent

was not statutorily entitled to counsel at public expense, payment of the

attorney’s fees at public expense was constitutionally required. The

district court reasoned that principles of equal protection prohibited

treating an indigent parent in an involuntary termination proceeding filed

under Iowa Code chapter 600A differently than an indigent parent in a

termination proceeding filed under Iowa Code chapter 232. The State

Public Defender denied payment on the ground the appointed attorney’s

fees did not qualify for payment from the indigent defense fund. After

the appointed attorney sought judicial review of the State Public

Defender’s denial, the juvenile court ordered the Iowa Department of

Management (Department) to pay the fees.

The State Public Defender and the Department filed an appeal

challenging the juvenile court’s appointment of counsel at public

expense. We conclude the State Public Defender’s appeal is moot and

the Department’s appeal should be treated as a petition for an original

writ of certiorari, which we grant. On the merits, we conclude the

juvenile court correctly determined the indigent parent was entitled to

counsel at public expense. As a result, we annul the writ.

I. Factual and Procedural Background.

A child’s father and stepmother filed a termination action pursuant

to Iowa Code section 600A.5, seeking to terminate the parental rights of

the child’s mother. The grounds urged for the termination were

abandonment and nonpayment of child support. The mother requested
 4

the juvenile court to appoint counsel at public expense to provide her

representation in the proceeding.

In considering the application, the juvenile court first considered

whether the mother had a statutory right to counsel under Iowa Code

section 600A.6A(2). This provision provides that “the parent against

whom the petition is filed” is entitled to counsel at public expense if (1)

the parent requests appointment; (2) the parent is indigent; (3) the

juvenile court determines that “because of lack of skill or education,” the

parent “would have difficulty in presenting [his or her] version of the

facts in dispute, particularly where the presentation of the facts requires

the examination or cross-examination of witnesses or the presentation of

complex documentary evidence”; and (4) the juvenile court determines

the parent “has a colorable defense to the termination of parental rights,

or there are substantial reasons that make termination of parental rights

inappropriate.” Iowa Code § 600A.6A(2).

The juvenile court found the first two elements satisfied, but

concluded the third was not met. The juvenile court declined to

determine whether the parent had a colorable defense, believing such a

finding by the trial court could have a chilling effect on the parent’s

perception of fairness and interfere with the parent’s presentation of

relevant evidence during trial. The juvenile court noted, however, the

grounds urged for termination, abandonment and nonpayment of

support, are factual issues and do not involve complex legal theories.

The juvenile court further noted the mother had attended school through

eleventh grade, was working on obtaining a GED degree, and was not at

any time a special education student or the subject of an individualized

education plan. The juvenile court observed the mother was aware of the

nature of the proceedings, appeared to understand her obligations with
 5

regard to the presentation of evidence at trial, and had made

arrangements for witnesses to appear on her behalf. Finally, the juvenile

court stated none of the witnesses appeared hostile to the mother’s

interests such as to render the presentation of their testimony

challenging for the mother. As a result, the juvenile court concluded the

mother was not entitled to appointment of counsel under Iowa Code

section 600A.6A(2).

The juvenile court next considered whether the mother was

entitled to appointed counsel as a matter of constitutional law. The

juvenile court noted that in In re S.A.J.B., 679 N.W.2d 645, 650–51 (Iowa

2004), we held the general assembly could not constitutionally

distinguish between the right to counsel at public expense in privately

prosecuted termination proceedings under Iowa Code chapter 600A and

state-prosecuted termination proceedings under Iowa Code chapter 232. 1

The juvenile court concluded that under In re S.A.J.B. the equal

protection clause of the Iowa Constitution guarantees an indigent parent

the right to counsel at public expense in an involuntary chapter 600A

termination proceeding because the right is coextensive with an indigent

parent’s right to counsel in a chapter 232 termination proceeding. In
particular, the juvenile court noted the involuntary nature of both

proceedings. As a result, the juvenile court held that while the mother

1The parties that may initiate a termination proceeding under Iowa Code chapter
232 include a child’s guardian, guardian ad litem, custodian, the department of human
services, a juvenile court officer, and a county attorney. Iowa Code § 232.111(1) (2013).
Once the petition is filed under chapter 232, the county attorney is generally charged
with presenting evidence in support of the petition, though the attorney general may be
substituted in limited circumstances. Id. § 232.114(2)–(3). Comparatively, the only
parties that may initiate a termination proceeding under Iowa Code chapter 600A
include a parent, prospective parent, custodian, and guardian. Id. § 600A.5(1). The
party who files the petition under chapter 600A, not the county attorney or attorney
general, presents evidence in support of the petition. In re S.A.J.B., 679 N.W.2d 645,
648 (Iowa 2004).
 6

did not qualify for appointed counsel under section 600A.6A, she was

nonetheless entitled to counsel under In re S.A.J.B. Accordingly, the

juvenile court appointed attorney Edward Crowell to represent the

mother in the proceeding. Ultimately, the juvenile court terminated the

mother’s parental rights based upon the grounds urged in the petition.

The original juvenile court order appointing Crowell directed the

petitioners—the father and stepmother—to pay the cost of the mother’s

legal defense. The juvenile court subsequently amended its order to

require payment by the State Public Defender after determining the

petitioners were indigent. The juvenile court further approved fee

expenses in excess of the State Public Defender’s fee guidelines, noting

that while the legal issues in the case were not complex, the factual

context in which those theories arose was “unusual so as to render a

greater amount of time than contemplated by fee guidelines reasonably

necessary for location and presentation of relevant evidence and legal

theory.”

Crowell submitted a claim of $2040 to the State Public Defender

for his legal services in representing the mother. Pursuant to Iowa Code

section 13B.4(4)(c)(2)(b), the State Public Defender denied payment on

the ground the fees did not qualify for payment from the indigent defense

fund. The notice to Crowell stated:

The court’s May 4, 2012, appointment order specifically
found that [S.H.] was not entitled to counsel under Iowa
Code section 600A.6A, rather that she was entitled to court
appointed counsel under In re S.A.J.B. Iowa Code section
815.11 authorizes payment for court appointed attorney fees
under 600A.6B, but no other costs under 600A are payable
from the indigent defense fund. Section 600A.6B only
applies to counsel appointed under 600A.6A. Section
815.11 does not authorize payment for counsel appointed
under In re S.A.J.B.
 7

Crowell filed a timely motion for judicial review of the State Public

Defender’s action. 2 He requested a new appointment order satisfying the

requirements of section 600A.6A or review of the fee claim denial. The

juvenile court noted that though it had previously appointed counsel

based solely upon a finding of indigency, with the benefit of the evidence

received at trial, it would likely find the mother met the requirements for

appointment of counsel under section 600A.6A(2). The juvenile court

noted that while the grounds urged for her termination of parental rights

were factual, the mother

likely would have been prejudiced in her ability to obtain and
adequately present evidence relevant to her defense as well
as arguing its significance. Her ability to effectively examine
and cross-examine witnesses would have also likely been
adversely impacted by the hostility between the parties and
extended family.

Nonetheless, the juvenile court declined to amend its prior order to

resolve the issue. The juvenile court then reconfirmed its conclusion

that the mother was entitled to counsel at public expense under In re

S.A.J.B.

The juvenile court next considered which state entity would be

liable for payment of the fees. The juvenile court noted Iowa Code

section 815.10(1)(a) authorizes the appointment of counsel to represent

an indigent person in chapter 600A termination cases “in which the

indigent person is entitled to legal assistance at public expense.” The

juvenile court reasoned that although the State Public Defender was

responsible for providing counsel under chapter 600A, the use of the

phrase “public expense” in section 815.10(1)(a) limited the obligation to

2Iowa Code section 13B.4(4)(d) permits a claimant for payment of indigent
defense costs to seek judicial review of a denial of payment by the State Public
Defender.
 8

an appointment made pursuant to the restrictive provisions of section

600A.6A(2) and did not extend to a constitutionally required appointment

under In re S.A.J.B.

Having concluded attorney’s fees generated by constitutionally

mandated counsel could not be paid under section 815.11, the juvenile

court looked for an alternative method of payment. 3 The juvenile court

concluded the attorney’s fees should be paid by the Department

pursuant to Iowa Code chapter 25. The juvenile court noted that in

determining the amount of fee award, the fee guidelines of the State

Public Defender would be probative but not determinative as to

reasonableness. Accordingly, the juvenile court ordered that the

reasonable costs of the defense of the mother be submitted to the

Department for payment pursuant to section 25.1 rather than to the

State Public Defender pursuant to section 815.11.

The State Public Defender and the Department filed an appeal.

II. Subject Matter Jurisdiction.

A. Introduction. Although no party challenges this court’s

jurisdiction in this case, an appellate court has responsibility sua sponte

to police its own jurisdiction. See, e.g., State ex rel. Vega v. Medina, 549

N.W.2d 507, 508 (Iowa 1996) (noting this court may raise the issue of its

subject matter jurisdiction sua sponte); see also Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 93–95, 118 S. Ct. 1003, 1011–13, 140 L. Ed.

2d 210, 226–27 (1998); Baird v. Norton, 266 F.3d 408, 410 (6th Cir.

2001); GNB Battery Techs., Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir.

1995). In the exercise of this responsibility, we must first address

3Iowa Code section 815.10(1)(a) provides for the appointment of counsel and

section 815.11 provides for payment from the indigent defense fund.
 9

questions related to our subject matter jurisdiction that spring from the

record of this case.

The first jurisdictional question is whether this court may consider

the State Public Defender’s appeal when the challenged order did not

impose an obligation upon the State Public Defender and no party seeks

to impose such an obligation on appeal. The second jurisdictional

question is whether this court may consider the Department’s appeal

when the Department did not participate as a party in the litigation

below.

B. State Public Defender. Following the hearing on Crowell’s

motion for judicial review of the State Public Defender’s denial of his

claim for payment, the juvenile court rendered a final judgment that was

appealable by the State Public Defender. See Iowa Code § 13B.4(4)(d)(7).

The jurisdictional question regarding the State Public Defender, however,

is whether its appeal is moot. If an appeal no longer presents a

justiciable controversy because the disputed issue has become academic

or nonexistent, the appeal is ordinarily deemed moot. In re M.T., 625

N.W.2d 702, 704 (Iowa 2001).

Here, the judgment of the juvenile court does not order the State

Public Defender to do anything and does not impose any liability upon it.

It is the fiscal ox of the Department that has been gored. The

Department does not seek to shift liability to the State Public Defender,

but only asserts that no state entity should be liable for the attorney’s

fees in this case. Similarly, Crowell does not assert the State Public

Defender should pay the bill. As to the State Public Defender, then, the

issues raised in this appeal are of academic interest only. Accordingly,

we will not entertain the State Public Defender’s appeal because it is not
 10

aggrieved by the district court order and will not be aggrieved in light of

the limited nature of the issues raised.

C. Department of Management.

1. Introduction. Iowa Code section 13B.4(4)(d)(7) does not permit

the Department to file an appeal from the juvenile court’s final judgment.

That is not, however, the end of the inquiry as to the Department. Prior

to the enactment of this section, 4 we recognized the proper avenue to

seek review of a trial court’s allowance of fees for appointed counsel at

public expense was by petition to this court for an original writ of

certiorari. See, e.g., State Pub. Defender v. Iowa Dist. Ct. for Warren

Cnty., 594 N.W.2d 34, 36 (Iowa 1999). When an appeal should have

been filed as a writ of certiorari, our rules of appellate procedure

authorize us to consider the appeal as though it was properly filed as a

certiorari action. Iowa R. App. P. 6.108; see also Bousman v. Iowa Dist.

Ct., 630 N.W.2d 789, 793 (Iowa 2001). Therefore, we will consider the

appeal filed by the Department as a petition for an original writ of

certiorari. The jurisdictional question then becomes whether the

Department can maintain an original certiorari action.

2. Iowa caselaw. We begin our discussion with a review of

certiorari actions in Iowa. The Iowa Constitution provides the supreme

court has the power “to issue all writs and process necessary to secure

justice to parties.” Iowa Const. art. V, § 4. A writ of certiorari falls

within the scope of this constitutional provision. While we refer to

4The legislature amended section 13B.4 in 1999 to grant an attorney the right to

seek judicial review of a fee claim denial or reduction by the State Public Defender. See
1999 Iowa Acts ch. 135, § 4 (codified at Iowa Code § 13B.4(4)(d) (Supp. 1999)). The
legislature amended section 13.4(4) in 2006 to permit either a fee claimant or the State
Public Defender to appeal a final judgment following judicial review of a fee claim
denial. See 2006 Iowa Acts ch. 1041, § 3 (codified at Iowa Code § 13B.4(4)(d)(7) (2007)).
 11

parties seeking a writ of certiorari as “plaintiffs” and our appellate rules

refer to a certiorari proceeding as an “original” action, see Iowa R. App. P.

6.107(1)(a), a certiorari action resembles an appeal in many respects. To

the extent not specifically prescribed by rule or statute, our rules of

appellate procedure apply to certiorari actions. Id. r. 6.501.

A writ of certiorari is limited to triggering review of the acts of an

inferior tribunal on the basis the inferior tribunal exceeded its

jurisdiction or otherwise acted illegally. Pfister v. Iowa Dist. Ct., 688

N.W.2d 790, 794 (Iowa 2004). Our power to review lower court actions

by issuing writs of certiorari is discretionary. Sorci v. Iowa Dist. Ct., 671

N.W.2d 482, 490 (Iowa 2003). Once this court exercises its discretionary

power to grant certiorari, we engage in review of the action of the inferior

tribunal and either sustain or annul it. No other relief may be granted.

Eden Twp. Sch. Dist. v. Carroll Cnty. Bd. of Educ., 181 N.W.2d 158, 165–

66 (Iowa 1970).

We have long endorsed the general rule that only a party to the

action below may seek a writ of certiorari challenging the action of an

inferior tribunal. E.g., Hohl v. Bd. of Educ., 250 Iowa 502, 509, 94

N.W.2d 787, 791 (1959); Polk County v. Dist. Ct., 133 Iowa 710, 713, 110

N.W. 1054, 1055 (1907). On several occasions, however, we have held

that plaintiffs who were not parties in the proceedings before the inferior

tribunal had standing to seek a writ of certiorari.

A relatively recent case in which we embraced the exception to the

general rule is State v. West, 320 N.W.2d 570 (Iowa 1982). In West, we

considered whether individuals who were not parties to a criminal

proceeding could bring a certiorari action challenging a district court

order distributing a restitution fund established for victims of the

underlying crimes. Id. at 571. We recognized that while generally only a
 12

party to an action below may obtain the writ, nonparties below could

obtain the writ if they “prove that they have been injured in a special

manner, different from that of the public generally.” Id. at 573. In West,

the parties seeking certiorari alleged that they suffered pecuniary

damage as a result of the defendant’s criminal activities in the

underlying action and that when the district court denied their claims to

the restitution fund their only recourse was a writ of certiorari. Id.

Accordingly, we held the parties seeking certiorari had standing to

maintain the action. Id.

Similarly, in Hohl we considered whether individuals who

questioned certain school reorganization proceedings had standing to

bring a certiorari action. 250 Iowa at 503, 94 N.W.2d at 788. We noted

certiorari proceedings were “available to all persons who may show a

substantial interest in the matter challenged.” Id. at 509, 94 N.W.2d at

791. We noted that while generally only a person who is a party to the

underlying action may secure a writ of certiorari, there was “a tendency

to broaden the scope of the writ” by allowing certain other parties to seek

the writ to avoid the denial of substantial injustice. Id. at 509, 94

N.W.2d at 791–92. We held that individuals affected by the

reorganization could bring a certiorari action to challenge the

reorganization proceedings. Id. at 510, 94 N.W.2d at 792.

Finally, in an earlier case, Hemmer v. Bonson, 139 Iowa 210, 214–

15, 117 N.W. 257, 258–59 (1908), we considered whether a citizen who

did not participate in a district court action brought by another citizen to

enjoin operation of a liquor nuisance could bring a certiorari action

challenging the narrowness of the district court ruling. A statute granted

any citizen in the same county as the saloon standing to bring an

injunction proceeding, and the citizen challenging the ruling lived in the
 13

same county. Id. at 215, 117 N.W. at 259. We held the citizen had

standing because the citizen could have filed an action under the statute

to enjoin the nuisance and because the citizen, due to the proximity of

the tavern to her residence, had a special interest in the case. Id. at

215–17, 117 N.W. at 259. In particular, we noted cases from other

jurisdictions holding certiorari is open to an individual “who suffers

peculiar injury by reason of a judgment or order entered in excess of

jurisdiction.” Id. at 215, 117 N.W. at 259.

Our recent caselaw demonstrates the limits of the exception to the

general rule that a plaintiff in a certiorari action must have been a party

in the action below. In Alons v. Iowa District Court, 698 N.W.2d 858, 862

(Iowa 2005), state senators and representatives, a congressman, a

pastor, and a church who were not parties to the proceedings in district

court brought a certiorari action challenging the district court’s order

that, on its face, dissolved the marriage of a same-sex couple married in

Vermont. They asserted the district court lacked jurisdiction to enter the

dissolution of marriage decree. Id.

We held the plaintiffs did not have standing to bring the certiorari

action. Id. at 874. After citing West for the proposition that generally

only a party to an action may obtain the writ, we recognized the

exception applies where plaintiffs have a “ ‘specific personal or legal

interest in the litigation’ ” and show that “ ‘they have been injured in a

special manner, different from the public generally.’ ” Id. at 864–65

(quoting Citizens for Responsible Choices v. City of Shenandoah, 686

N.W.2d 470, 475 (Iowa 2004) (first quote) and West, 320 N.W.2d at 573

(second quote)). Accordingly, we concluded none of the plaintiffs in the

certiorari action had standing to seek the writ. Id. at 873–74; see also

Williamson v. Kelley, 271 N.W.2d 727, 729–30 (1978) (finding attorneys
 14

lacked standing to bring certiorari action challenging district court order

that trials no longer be held in a courthouse because of a fire hazard).

While the above cases demonstrate that a plaintiff in a certiorari

action who did not participate below may successfully invoke this court’s

jurisdiction under the exception to the general rule, we have encouraged

plaintiffs who are not parties to the underlying action to nonetheless

participate in the inferior proceedings when possible. For example, in

Iowa Department of Transportation v. Iowa District Court, 546 N.W.2d

620, 623 (Iowa 1996) (per curiam), we expressed a desire to “encourage”

the filing of a motion to rescind before the inferior tribunal when a

nonparty did not receive notice of the action until after entry of the order.

The advantage of such an approach is that it gives the inferior tribunal

the first opportunity to correct its mistakes. Id.

In a later case, State Public Defender v. Iowa District Court for Black

Hawk County, 633 N.W.2d 280, 281 (Iowa 2001), the public defender

filed a petition for a writ of certiorari in this court challenging a district

court order requiring the public defender to turn over records of a

juvenile for sealing. We granted the writ and the certiorari proceeding

commenced in this court. Id. While the certiorari action was pending,

the public defender filed a motion in the district court alleging it had not

received notice of the hearing leading to the order of the district court.

Id. After the county attorney resisted the motion on the basis the district

court lacked jurisdiction to consider the public defender’s motion

because of the pending certiorari proceeding, we granted the public

defender’s motion for a limited remand to allow the district court to

consider the issue. Id. On limited remand, the district court concluded

that it erred in not giving the public defender notice, that the hearing on

limited remand cured the error, and it affirmed its earlier order. Id. We
 15

then proceeded to consider the original action and held the district court

erred in ordering the public defender to surrender its records. Id. at

282–83.

In sum, while our caselaw is sparse, there is authority supporting

an exception to the general rule requiring a plaintiff in a certiorari action

to have participated in the proceedings below. We have sought to

encourage a nonparty to present issues to the inferior tribunal in a

motion to rescind, see Arthur Ray Pointer v. Iowa Dep’t of Transp., 546

N.W.2d 623 (Iowa 1996), and have allowed a limited remand after

granting a writ of certiorari to allow the inferior tribunal to reconsider its

order, see Iowa Dist. Ct. for Black Hawk Cnty., 633 N.W.2d at 281.

3. Federal caselaw. Our approach to the standing of nonparties to

the proceedings below to bring certiorari actions finds support in

analogous federal cases relating to the standing to bring appeals. Two

cases of the United States Supreme Court bear on the issue. In Marino v.

Ortiz, 484 U.S. 301, 304, 108 S. Ct. 586, 587, 98 L. Ed. 2d 629, 633

(1988) (per curiam), the Supreme Court noted the right to appeal an

adverse judgment is generally limited to parties to a lawsuit or those who

properly become parties. In Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct.

2005, 153 L. Ed. 2d 27 (2002), however, the Supreme Court embraced a

more flexible position. It noted that the term “party” indicates not “an

absolute characteristic, but rather a conclusion about the applicability of

various procedural rules that may differ based on context.” Id. at 10,

122 S. Ct. at 2010, 153 L. Ed. 2d at 38.

The lower federal courts have, in limited circumstances, allowed an

entity or individual who did not participate in the proceedings below to

be considered a party for purposes of appeal. For example, federal

courts have held a party not named below may appeal an order or
 16

judgment involving a consent decree that purports to bind nonparties,

see United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen &

Helpers of Am., AFL-CIO, 931 F.2d 177, 183–84 (2d Cir. 1991),

injunctions that purport to bind nonparties, see R.M.S. Titanic, Inc. v.

Haver, 171 F.3d 943, 955 (4th Cir. 1999); United States v. Kirschenbaum,

156 F.3d 784, 794 (7th Cir. 1998) (restraining order); In re Estate of

Ferdinand Marcos Human Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996);

In re Piper Funds Inc., Institutional Gov’t Income Portfolio Litig., 71 F.3d

298, 301 (8th Cir. 1995) (stay of litigation); cf. Zenith Radio Corp. v.

Hazeltine Research, Inc., 395 U.S. 100, 108–12, 89 S. Ct. 1562, 1568–70,

23 L. Ed. 2d 129, 139–42 (1969) (holding it was improper to enter

judgment and an injunction against the parent company of a party on

the basis the parent company was not designated a party to the

litigation, did not formally appear at trial, was not made a party by

service of process, and had not agreed to be bound by a stipulation that

it and its subsidiary should be considered one party for purposes of

litigation), a turnover order that requires nonparties to divest themselves

of assets, see Maiz v. Virani, 311 F.3d 334, 339 (5th Cir. 2002), a

receivership order that directly affects the rights of parties not before the

court, see Fid. Bank, Nat’l Ass’n v. M.M. Grp., Inc., 77 F.3d 880, 882 (6th

Cir. 1996), and an order directing law firms to limit compensation to

nonparties contrary to private agreements, see Dietrich Corp. v. King Res.

Co., 596 F.2d 422, 424 (10th Cir. 1979).

All of these cases, of course, involve tangible interests of the

nonparties that are directly affected by the lower court judgment or

order. The federal courts consistently hold that a judgment cannot be

appealed merely because the order appealed from contains language or

reasoning that a party deems is adverse to its interest. See, e.g., Boston
 17

Tow Boat Co. v. United States, 321 U.S. 632, 633, 64 S. Ct. 776, 776–77,

88 L. Ed. 975, 977 (1944).

The federal courts have also considered whether a nonparty with

concrete interests directly affected by a court order or judgment must

run the gauntlet of contempt in order to challenge the validity of the

order or judgment. A number of federal courts directly addressing this

issue have concluded that the better course is to allow a direct appeal by

the nonparty. See Kirschenbaum, 156 F.3d at 794; In re Estate of

Ferdinand Marcos, 94 F.3d at 544; In re Piper Funds, 71 F.3d at 301.

Based on the caselaw, the leading treatise on federal practice and

procedure notes that “nonparties can achieve standing to appeal by a

variety of methods in a variety of circumstances.” 15A Charles Alan

Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure: Jurisdiction 2d § 3902.1, at 132 (1992). Further, the treatise

notes there are “easy cases in which a nonparty is formally addressed by

a court order.” Id. at 122. The treatise cautions, however, that “[a]ppeal

by way of a simple notice of appeal should be available only to nonparties

directly bound or affected by an order.” Id. at 132.

4. Caselaw from other state appellate courts. We also look to case

developments in other states to evaluate our established approach to the

standing issue. As with the federal courts, many state courts allow

nonparties below to launch appeals in certain limited circumstances.

For example, state courts have held nonparties may appeal orders or

judgments approving settlements when pecuniary interests are directly

affected, see Dowling v. Stapley, 211 P.3d 1235, 1258 (Ariz. Ct. App.

2009); In re Clergy Case I, 116 Cal. Rptr. 3d 360, 366–67 (Ct. App. 2011),

an order requiring a third party to release assets, see People v.

Hernandez, 91 Cal. Rptr. 3d 604, 606 (Ct. App. 2009), an order requiring
 18

a nonparty state agency to provide services to a juvenile, see In re C.A.G.,

903 P.2d 1229, 1233 (Colo. App. 1995), an order requiring a nonparty

attorney to pay for interpreting services provided to a defendant, see

Swindle v. Benton Cnty. Circuit Ct., 211 S.W.3d 522, 524 (Ark. 2005), an

order distributing the assets of an estate in a fashion affecting interests

of nonparty beneficiaries, see In re Estate of Strong, 550 N.E.2d 1201,

1206 (Ill. App. Ct. 1990), orders subjecting nonparties to the terms of an

injunction, see Barham v. City of Atlanta, 738 S.E.2d 52, 55 (Ga. 2013);

Ex parte State Pers. Bd., 45 So. 3d 751, 754 (Ala. 2010), orders

appointing experts at the expense of a nonparty county, see In re

Payment of Witness Fees in State, 507 N.W.2d 576, 578 (Wis. Ct. App.

1993), and an order imposing sanctions on an attorney, see Wieman v.

Roysden, 802 P.2d 432, 435 (Ariz. Ct. App. 1990). The exception to the

general rule that one must be a party below to bring an appeal, however,

does not allow an appeal merely because a party does not like the

precedent or may suffer an indirect impact from it. See Colo. Permanente

Med. Grp., P.C. v. Evans, 926 P.2d 1218, 1224 (Colo. 1996); Corsello v.

Verizon N.Y., Inc., 908 N.Y.S.2d 57, 77 (App. Div. 2010); Castaldi v. 39

Winfield Assocs., LLC, 803 N.Y.S.2d 716, 716 (App. Div. 2005). These

cases tend to support our approach to the ability of nonparties below to

bring a certiorari action in our court in limited circumstances.

5. Discussion. The Department has shown a direct injury

resulting from the district court’s order which orders it, by name, to pay

the attorney’s fees in this case. The injury is not speculative, and it

directly follows from the district court’s order that explicitly requires the

Department to pay the attorney’s fees incurred in the representation of

the mother. The injury is plainly special to the Department and not one

held by the public generally. See West, 320 N.W.2d at 573. The
 19

circumstances of this case are materially similar to other cases where the

nonparty has been permitted to seek a writ of certiorari or file an appeal.

See id.; Hohl, 250 Iowa at 510, 94 N.W.2d at 792; see also Swindle, 211

S.W.3d at 524; In re C.A.G., 903 P.2d at 1233; In re Payment of Witness

Fees, 507 N.W.2d at 578. We conclude the Department has met the

requirements for the exception to the general rule that a plaintiff in a

certiorari action must be a party to the proceedings below.

We similarly do not find any procedural roadblocks to allowing the

Department to challenge the district court order in this case. Like the

state and federal courts cited above, we do not believe the Department

must run the risk of contempt to challenge the order. See, e.g.,

Kirschenbaum, 156 F.3d at 794; In re Estate of Ferdinand Marcos, 94

F.3d at 544; In re Piper Funds, 71 F.3d at 301.

We also believe that when an order or judgment purports to bind a

third party, intervention below is not required. See Barham, 738 S.E.2d

at 55 (noting it was incumbent on the party seeking enforcement of an

order against another to join the other party in the litigation and

rejecting argument that it was incumbent upon the nonparty to

intervene); Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 151

P.3d 732, 756–57 (Haw. 2007) (permitting a nonparty to the litigation to

appeal an award of attorneys’ fees against it even though the nonparty

appellant did not intervene in the litigation below); see also Martin v.

Wilks, 490 U.S. 755, 763, 109 S. Ct. 2180, 2185, 104 L. Ed. 2d 835, 845

(1989) (“[A] party seeking a judgment binding on another cannot obligate

that person to intervene; he must be joined.”), superseded by statute on

other grounds, Civil Rights Act of 1991, Pub. L. No. 120–166, 105 Stat.

1074, as stated in Landgraf v. USI Film Prods., 511 U.S. 244, 251, 114 S.

Ct. 1483, 1489–90, 128 L. Ed. 2d 229, 244 (1994).
 20

It may well be better practice, where possible, to give the lower

tribunal the first opportunity to correct its error, either through a motion

to rescind or a limited remand after the certiorari petition has been

granted, see Iowa Dep’t of Transp., 546 N.W.2d at 623; Iowa Dist. Ct. for

Black Hawk Cnty., 633 N.W.2d at 281, but we do not think such an

approach is a jurisdictional prerequisite to the exercise of our jurisdiction

here. Unlike in Iowa Department of Transportation and Iowa District

Court for Black Hawk County, the district court in this case decided the

very issues the Department seeks to raise in this certiorari action.

Further, while the Department was not a party to the underlying action,

the State Public Defender participated in the proceedings below and had

precisely the same interest as the Department with respect to the issues

raised in this appeal. In this respect, the case is similar to Hemmer,

where although the parties seeking certiorari did not participate in the

proceedings before the inferior tribunal, other citizens with identical

interests did participate. 139 Iowa at 215, 117 N.W. at 259. The

juvenile court has already had the first opportunity to consider the

issues raised in this certiorari action, and a motion to rescind or a

limited remand would be a fruitless exercise.

For the above reasons, we conclude the Department has shown a

concrete pecuniary injury directly flowing from the juvenile court order.

The Department, therefore, has standing to maintain a certiorari

proceeding under the exception to the general requirement that parties

participate in the proceedings before the inferior tribunal as a

precondition to seeking a writ of certiorari. Accordingly, we grant the

writ.
 21
III. Discussion of Merits of the Department’s Writ of
Certiorari.

A. Standard of Review. Under a writ of certiorari, our review is
for errors at law. Pfister, 688 N.W.2d at 793. To the extent

constitutional issues are involved, however, our review is de novo. Id. at

794.

B. Positions of the Parties. The Department asserts the juvenile

court correctly determined the mother was not entitled to appointment of

counsel at public expense under Iowa Code section 600A.6A(2). Because

the mother was not entitled to counsel under Iowa Code section

600A.6A(2), the Department reasons, the juvenile court lacked the

authority to require the state to pay for counsel. See Maghee v. State,

639 N.W.2d 28, 31 (Iowa 2002) (questioning, in a consideration of

whether prison inmates challenging the reduction of good time credit are

entitled to counsel at state expense, whether the inherent power of the

court to appoint counsel also includes the power to order the state to

compensate the appointed counsel). The Department maintains Crowell

is not entitled to payment at public expense “unless payment is

constitutionally required and section 600A.6A’s limitations on the

appointment of counsel are . . . constitutional.”

The Department then attacks the juvenile court’s ruling that the

provision of counsel was constitutionally required. According to the

Department, the juvenile court improperly relied on In re S.A.J.B. to

require the appointment of counsel in this case. The Department notes

Iowa Code section 600A.6A(2) was enacted in response to In re S.A.J.B.

and, as a result, contends In re S.A.J.B. does not address the

constitutionality of the new statutory provision.
 22

To the extent the rationale in In re S.A.J.B. is applicable, the

Department contends it was wrongly decided and invites us to reverse

course. The Department argues In re S.A.J.B. fails to recognize the

distinction between a chapter 232 termination proceeding and a chapter

600A termination proceeding. The Department further maintains In re

S.A.J.B. fails to properly weigh the state’s interest in preserving scarce

resources as a compelling interest sufficient to support the distinction

between state-prosecuted terminations and privately prosecuted

terminations.

Crowell responds by arguing the juvenile court misconstrued Iowa

Code section 600A.6A(1), which states, “Upon the filing of a petition for

termination of parental rights under this chapter, the parent identified in

the petition shall have the right to counsel in connection with all

subsequent hearings and proceedings.” Crowell argues the unqualified

right to counsel in section 600A.6A(1) impliedly grants indigents the right

to appointed counsel at public expense in all termination proceedings

under chapter 600A. Crowell argues section 600A.6A(2), which provides

for appointment of counsel for indigents only in limited circumstances, is

an independent provision designed to allocate the costs of appointed

counsel. According to Crowell, if counsel is appointed under section

600A.6A(1), the Department pays the expenses, while if counsel is

appointed under section 600A.6A(2), the State Public Defender pays the

expenses. If we adopted this interpretation of subsections (1) and (2),

Crowell argues, the constitutional issue otherwise raised in the case

could be avoided.

In the alternative, Crowell argues if section 600A.6A(2) does limit

the right to appointed counsel at public expense, it runs afoul of the

constitutional principles articulated in In re S.A.J.B. Crowell notes In re
 23

S.A.J.B. holds the distinction with respect to the right to counsel at

public expense in termination proceedings under chapter 600A and

chapter 232 must be evaluated under strict scrutiny because the

proceedings involve the liberty interests associated with a parent raising

a child. He notes that in In re S.A.J.B. this court ruled the financial

interest of the state in limiting the right to counsel at public expense was

legitimate but did not arise to a compelling interest. See 679 N.W.2d at

650.

In summarizing the arguments presented by the parties, we

emphasize two issues that have not been raised and are thus not before

the court. No doubt in order to avoid conflicting positions, the State

Public Defender and the Department do not claim the decision of the

juvenile court to order the Department, rather than the State Public

Defender, to pay the costs of the mother’s counsel was erroneous. As a

result, the question of whether the attorney’s fees in this case should be

paid by the State Public Defender under Iowa Code section 815.11 or the

Department under Iowa Code section 25.1 is not before this court.

Similarly, Crowell does not contend the juvenile court erred in

declining to make an appointment pursuant to Iowa Code section

600A.6A(2). As a result, the question of whether the juvenile court erred

in not making the appointment in the first place under section

600A.6A(2) is not before the court.

C. Statutory Argument. Ordinarily, we look to statutory issues

first in order to avoid unnecessary constitutional questions. E.g.,

Simmons v. State Pub. Defender, 791 N.W.2d 69, 73–74 (Iowa 2010);

State v. Fuhrmann, 261 N.W.2d 475, 477 n.1 (Iowa 1978). If fairly

possible, we interpret a statute to avoid doubt as to its constitutionality.

E.g., Simmons, 791 N.W.2d at 73; Thompson v. Joint Drainage Dist. No. 3-
 24

11, 259 Iowa 462, 468, 143 N.W.2d 326, 330 (1966); Jacobs v. Miller,

253 Iowa 213, 218, 111 N.W.2d 673, 676 (1961). If the statute can bear

no reasonable construction that avoids constitutional doubt, however, we

proceed to the constitutional issue presented. Simmons, 791 N.W.2d at

73; Thompson, 259 Iowa at 468, 143 N.W.2d at 330; Jacobs, 253 Iowa at

218, 111 N.W.2d at 676.

While Crowell invites us to avoid the constitutional issue in this

case through statutory construction, we cannot do so. In order to

support his construction, Crowell urges us to sever section 600A.6A(1)

from section 600A.6A(2). While a free-standing constitutional right to

counsel might imply a right to counsel at public expense for indigents,

see Gideon v. Wainwright, 372 U.S. 335, 343–45, 83 S. Ct. 792, 796–97,

9 L. Ed. 2d 799, 804–05 (1963) (holding the right to counsel under the

Sixth Amendment creates a right to appointment of counsel at public

expense for indigent criminal defendants), we think it clear that an

unqualified statutory right to counsel at public expense cannot be

implied under section 600A.6A(1) because of the express provision

limiting the appointment of counsel at public expense in section

600A.6A(2). 5 Statutes must be read in context. E.g., State v. Romer, 832

N.W.2d 169, 176 (Iowa 2013); Jacobson Transp. Co. v. Harris, 778

N.W.2d 192, 197 (Iowa 2010). In our view, section 600A.6A(1) cannot be

reasonably read to require the appointment of counsel at public expense

in all cases when the very next provision, section 600A.6A(2), expressly

limits that right. Moreover, there is simply no suggestion in the statute

5Article I, section 10 of the Iowa Constitution provides, “In all criminal
prosecutions, and in all cases involving the life, or liberty of an individual the accused
shall have a right to . . . the assistance of counsel.” Crowell makes no article I, section
10 claim in this case.
 25

that subsections (1) and (2) were designed to create a bifurcated payment

mechanism for court-appointed counsel as suggested by Crowell. While

we do construe statutes to avoid constitutional questions when

reasonably possible, we cannot rewrite them. We therefore reject

Crowell’s statutory argument. As a result, in the posture of this case we

must address the underlying constitutional issue.

D. Constitutional Issue. The Department invites us to revisit our

holding in In re S.A.J.B. There, we considered whether the state could

extend to indigent parents the right to counsel at public expense in a

state-prosecuted proceeding to terminate parental rights under chapter

232, but decline to extend the same right to appointment of counsel at

public expense in a privately prosecuted proceeding under chapter 600A.

In re S.A.J.B., 679 N.W.2d at 648. The indigent parent challenged this

classification as violating the equal protection provisions of the United

States and Iowa Constitutions. Id. at 647.

Recognizing the question remained open under the United States

Constitution, we proceeded to decide the case based upon the equal

protection clause of the Iowa Constitution, article I, section 6. Id. at 648.

We noted parental rights are considered fundamental rights under the

Iowa Constitution. Id.; see also Santi v. Santi, 633 N.W.2d 312, 318

(Iowa 2001) (recognizing that “ ‘the parenting right is a fundamental

liberty interest that is protected against unwarranted state intrusion’ ”

and subjecting a statute authorizing a court to override a parental

decision about grandparent visitation to strict scrutiny (italics omitted)

(quoting In re Bruce, 522 N.W.2d 67, 71 (Iowa 1994))); Callender v. Skiles,

591 N.W.2d 182, 190 (Iowa 1999) (finding a putative father wishing to

challenge the presumed paternity of a child born into a marriage had a

fundamental liberty interest in challenging paternity). We then
 26

proceeded to consider whether the classification was narrowly tailored to

serve a compelling state interest. In re S.A.J.B., 679 N.W.2d at 649–51.

In doing so, we explicitly rejected the notion that a state’s pecuniary

interest in not providing counsel, standing alone, was a compelling

interest. Id. at 650. While we recognized that indigents facing

termination under chapter 232, unlike under chapter 600A, must

overcome the resources of the state, we concluded the state action

remains essentially the same. Id. at 650–51. In reaching this

conclusion, we quoted the United States Supreme Court, which

emphasized that regardless of the nature of child termination the

respondent “ ‘resists the imposition of an official decree extinguishing, as

no power other than the State can, her parent-child relationships.’ ” Id.

at 650 (emphasis omitted) (quoting M.L.B. v. S.L.J., 519 U.S. 102, 116

n.8, 117 S. Ct. 555, 564 n.8, 136 L. Ed. 2d 473, 488 n.8 (1996)).

As a result of our analysis, we concluded the legislative framework

was unconstitutionally underinclusive to the extent it did not afford the

privilege of counsel at public expense to parents facing termination of

their parental rights under chapter 600A. Id. at 651. Accordingly, we

had the option of declaring the extension of the benefit—the right to

counsel at public expense under chapter 232—a nullity or extending it to

include others aggrieved by exclusion. Id. We concluded the

circumstances required the extension of the right to appointed counsel at

public expense to indigent persons under chapter 600A. Id.

We reject the argument of the Department that this case is not

controlled by In re S.A.J.B. It is true, of course, that in In re S.A.J.B.

there was no provision for appointment of counsel for indigent parents

under chapter 600A, while in this case, counsel may be available to some

indigents on a case-by-case basis. Yet, in In re S.A.J.B. we applied
 27

categorical equal protection principles in holding that a distinction

between chapter 232 proceedings and chapter 600A proceedings for

purposes of providing counsel to indigents could not be sustained. While

due process principles under the United States Constitution may involve

highly fact-specific analyses and balancing tests, see Lassiter v. Dep’t of

Soc. Servs., 452 U.S. 18, 31–33, 101 S. Ct. 2153, 2161–62, 68 L. Ed. 2d

640, 652–53 (1981) (declining to find that the Due Process Clause of the

Fourteenth Amendment requires the appointment of counsel at public

expense in every termination-of-parental-rights proceeding involving an

indigent parent and instead holding due process requires the issue be

decided on a case-by-case basis), In re S.A.J.B. applied categorical equal

protection principles and did not employ the case-by-case approach

embraced by the Lassiter majority, see In re S.A.J.B., 679 N.W.2d at 651.

Under In re S.A.J.B., indigent parents facing termination of parental

rights under chapter 600A cannot be treated differently than indigent

parents facing termination of parental rights under chapter 232 when it

comes to appointment of counsel. Id.

In the alternative, the Department essentially reprises the

arguments made in In re S.A.J.B. in suggesting we modify or overturn our

holding in that case. We decline to do so. We note that our holding in In

re S.A.J.B. does not appear to be an outlier. Indeed, a number of state

courts have reached a similar conclusion. See In re Adoption of

Meaghan, 961 N.E.2d 110, 112–13 (Mass. 2012) (holding indigent

parents are constitutionally entitled to appointment of counsel at public

expense in privately initiated termination-of-parental-rights proceedings

because “the same fundamental, constitutionally protected interests are

at stake” as in a state-initiated termination proceeding); In re Adoption of

K.A.S., 499 N.W.2d 558, 563 (N.D. 1993) (rejecting distinction between
 28

private and public termination and holding that termination, through an

adoption proceeding, of the parental rights of an indigent parent denied

appointment of counsel violates the equal protection provision of the

state constitution); Zockert v. Fanning, 800 P.2d 773, 777–78 (Or. 1990)

(finding no distinction between privately initiated and state-initiated

termination proceedings under the equal protection provision of the state

constitution); see also In re Adoption of K.L.P., 763 N.E.2d 741, 753 (Ill.

2002) (holding that where “significant state action has resulted in the

custody or guardianship of the minor child being placed with a person

other than the parent, equal protection requires that the parent be

provided with the assistance of counsel, if she is indigent, in a

subsequent action to terminate her parental rights”). We find no basis to

disturb our prior ruling.

As a result, the juvenile court correctly determined the parent in

this contested 6 termination proceeding under chapter 600A is entitled to

counsel on the same terms as would be provided in a termination

proceeding initiated under chapter 232. To the extent the juvenile

court’s order required the appointment of counsel at public expense, it is

affirmed.
IV. Conclusion.

We conclude that though the State Public Defender is statutorily

entitled to appeal the juvenile court’s final judgment, the mootness

doctrine precludes our consideration of the issues raised by the State

Public Defender on appeal. Further, treating the Department’s appeal as

6In In re J.L.L., 414 N.W.2d 133, 135 (Iowa 1987), we held that there was no
equal protection or due process requirement for appointment of counsel in an
uncontested, privately initiated termination. This case involves a contested termination.
As a result, In re S.A.J.B., not In re J.L.L., is the applicable precedent.
 29

petition for a writ of certiorari and granting the writ, we conclude the

juvenile court correctly appointed counsel at public expense to represent

the mother in the contested termination proceeding under chapter 600A.

We therefore annul the writ.

DISTRICT COURT JUDGMENT AFFIRMED; WRIT ANNULLED.