IN THE SUPREME COURT OF IOWA
No. 12–2226
Filed February 12, 2014
EDWARD CROWELL,
Appellee,
vs.
STATE PUBLIC DEFENDER,
Appellant.
-------------------------------------------------------------------
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.