This opinion is subject to revision before

publication in the Pacific Reporter

2016 UT 55

IN THE

SUPREME COURT OF THE STATE OF UTAH

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

L.E.S.,

Appellant,

v.

C.D.M. and M.K.M.,

Appellees.

No. 20140966

Filed December 6, 2016

On Direct Appeal

Eighth District, Vernal

The Honorable Clark A. McClellan

No. 132800027

Attorneys:

Marshall Thompson, Salt Lake City, for appellant

Jordan R. Van Oostendorp, Vernal, for appellees

Sean D. Reyes, Att’y Gen., John M. Peterson, Asst. Att’y Gen., 

Tyler R. Green, Solic. Gen., Stanford E. Purser, Deputy Solic. Gen.,

Salt Lake City, amicus curiae

JUSTICE HIMONAS authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.

JUSTICE DURHAM filed a concurring opinion.

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

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

2

INTRODUCTION

¶ 1 This is an appeal from a parental-rights termination order 

entered in the district court. On November 24, 2014, the district court 

terminated L.E.S.’s parental rights with respect to K.A.S., making K.A.S. 

legally available for adoption by her stepfather, C.D.M. L.E.S. appealed 

the termination order to the Utah Court of Appeals, which 

subsequently certified the case for transfer to the Utah Supreme Court. 

The issues presented on appeal are a claim of ineffective assistance of 

counsel and claims to the right to counsel under the Equal Protection 

Clause of the Fourteenth Amendment, under the Due Process Clause of 

the Fourteenth Amendment, and under the due process clause of the 

Utah Constitution. For reasons explained below, we hold that the 

denial of counsel violated L.E.S.’s federal due process rights and 

reverse and remand for further proceedings in accordance with this 

opinion.

BACKGROUND

¶ 2 On or about September 23, 2013, C.D.M. and M.K.M. filed a 

petition for adoption in Uintah County, Utah. C.D.M. sought to adopt 

his stepdaughter, K.A.S, who was born in 2008. L.E.S., K.A.S.’s 

biological father, was served with a Notice of Adoption Proceedings on 

September 23, 2013, requiring him to respond within thirty days if he 

intended to intervene in or contest the adoption. On or about October 2, 

2013, L.E.S., acting pro se, gave notice that he contested the adoption. 

C.D.M. and M.K.M. then moved to terminate L.E.S.’s parental rights. 

¶ 3 The case was set for trial for termination of parental rights on 

December 10, 2013. M.K.M. was present with counsel. L.E.S. was 

present in custody, pro se, having been transported from the Uintah 

County Jail, where he was incarcerated at the time. Upon questioning 

L.E.S. about his income and assets, the district court found that he 

“would qualify for court appointed counsel if this were in the Juvenile 

Court but question[ed] whether [that statutory right to court-appointed 

counsel] applies to [the] District Court.”1 The district court discussed 

L.E.S.’s right to counsel with Deputy County Attorney Michael

 

1 While the juvenile court ordinarily assumes jurisdiction over 

termination of parental rights cases, Utah Code section 78B-6-112(1) 

authorizes the district court to hear such a case “if the party who filed 

the petition is seeking to terminate parental rights in the child for the 

purpose of facilitating the adoption of the child.”
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Opinion of the Court

3

Drechsel, who “agreed that Uintah County would be obligated to pay 

for an attorney to represent the indigent father.” Based on Mr. 

Drechsel’s input, the district court appointed counsel for L.E.S. 

¶ 4 On January 24, 2014, Mr. Drechsel filed a motion to intervene 

on behalf of Uintah County, asserting that his representations “were 

made in error and contrary to law” and that there was no right to courtappointed counsel for an indigent party in district court proceedings 

involving the termination of parental rights. In that motion, he 

requested that the district court reverse its decision to appoint counsel 

and that it then dismiss Uintah County from the action. No opposing 

memoranda were filed by any party. L.E.S.’s court-appointed counsel 

did not respond or request a hearing on the issue, and L.E.S., because 

he was represented at the time, did not have an opportunity to oppose 

the motion pro se. See infra ¶ 20. On February 19, 2014, the district court 

granted the motion to intervene, reversing the appointment of counsel. 

¶ 5 The district court held a number of court conferences over the 

next few months, during which time L.E.S. unsuccessfully attempted to 

retain counsel. On April 10, 2014, a status conference was held, and the 

district court set a telephonic scheduling conference with L.E.S., who 

was then incarcerated at the Utah State Prison, for April 22, 2014. L.E.S. 

was also informed that he should retain counsel if he so desired. 

¶ 6 At the April 22, 2014 scheduling conference, L.E.S., 

participating by telephone, requested additional time to retain counsel. 

¶ 7 An attorney review hearing was held on June 3, 2014, which 

L.E.S. also attended telephonically. At this hearing, L.E.S. indicated that 

he “believe[d] his family [was] taking care of his counsel for him but 

[that he had] not been able to speak with them.” The district court set a 

status conference for June 9, 2014, in order to allow L.E.S. more time to 

speak with his family. 

¶ 8 At that status conference, where L.E.S. was present from 

prison, the district court noted that L.E.S. “had difficulty contacting 

family or counsel due to the prison telephone policies to make 

arrangement[s] to retain counsel.” The district court asked an attorney 

who was serving as counsel for L.E.S. in a juvenile court case to contact 

L.E.S.’s family in order to “understand where they stand with making 

counsel arrangements for [L.E.S.] and report back to the [c]ourt.” The 

district court also “ask[ed] the prison to allow [L.E.S.] telephone 

privileges so he can talk with lawyers and/or family members so this 

[c]ourt can move this matter along.”
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Opinion of the Court

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¶ 9 On June 17, 2014, L.E.S.’s juvenile court counsel reported to 

the district court that L.E.S.’s family was working on obtaining counsel 

and that they requested additional time. L.E.S.’s sisters were present 

and requested “notification of all hearings to try and help the[ir] 

brother due to communication issues with [L.E.S.] in prison.”

¶ 10 Another status conference was held on June 30, 2014. L.E.S. 

was supposed to attend telephonically but “was not available by 

telephone due to changes in probation officers at the prison.” L.E.S.’s 

sisters were present and reported that they had talked with a lawyer, 

Ms. Bradley, who needed to speak with L.E.S. The district court noted 

that L.E.S. was “to sign a waiver to allow his sisters to have access to 

court records to help with his defense.” The district court scheduled a 

bench trial for the termination proceeding for September 26, 2014. 

¶ 11 On July 22, 2014, yet another status conference was held “to 

check the status of counsel for [L.E.S.].” Ms. Bradley had talked with 

L.E.S. on the telephone right before the hearing and requested 

additional time to review the information from that telephone meeting. 

¶ 12 The next status conference was held on July 29, 2014. L.E.S. 

attended telephonically and sought to present a verbal motion for 

continuance, which the district court asked him to file in writing 

instead.

¶ 13 L.E.S. filed his written motion for continuance with the district 

court on August 4, 2014, requesting to have the matter continued until 

at least April 29, 2015, when he expected to be released. In his motion, 

L.E.S. indicated, among other things, that the prison would “not allow 

[him] phone access for any legal reason based on a conflict they have,” 

that he could “not obtain adequate employment and [did] not have any 

other means available to [him] . . . at the prison that would allow [him] 

the money to pay for counsel,” and that he was “at this time financially 

incapable of hiring counsel.” He represented that he had “one 

opportunity” to talk with a lawyer but that Ms. Bradley “said she was 

reluctant to take on the case in fear that because of the [abovementioned] prison policy she would not be able to provide adequate 

counsel.” C.D.M. and M.K.M. opposed the motion for continuance.

¶ 14 No oral argument was requested on the matter of the motion 

for continuance, and on September 2, 2014, C.D.M. and M.K.M. 

requested that the briefs be submitted for a ruling. On September 5, 

2014, the district court issued a ruling and order denying the motion for 

continuance. The district court based its decision on the following 

reasons: the matter had “been pending since September 23, 2013”; 
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5

“[m]ultiple status hearings ha[d] been held in an effort to provide 

[L.E.S.] the opportunity to find counsel”; L.E.S. had “had ample time to 

prepare for the trial, or to obtain counsel to represent him at trial”; and 

a “permanent living environment and a resolution to these proceedings 

are in the best interest of the minor child.”

¶ 15 On September 8, 2014, the district court held another status 

conference. L.E.S. was not present. The district court denied the motion 

to continue and indicated its intent to “[o]rder the state of Utah to 

transport [L.E.S.] . . . for a termination of parental rights hearing on 

September 26, 2014.”

¶ 16 The termination of parental rights hearing was held on 

September 26, 2014, and the district court made findings against L.E.S. 

and found that it was in the best interest of the child for K.A.S. to be 

adopted by C.D.M. L.E.S. filed a notice of appeal on October 22, 2014. 

The district court issued its “findings of fact[,] conclusions of law and 

order” on November 24, 2014, terminating L.E.S.’s parental rights in 

and to K.A.S.

¶ 17 L.E.S. appealed the district court’s termination order to the 

Utah Court of Appeals, which certified the case for transfer to the Utah 

Supreme Court on July 7, 2015. We heard oral arguments in the matter

on September 2, 2015. On September 21, 2015, we asked for

supplemental briefing from the parties and the Attorney General’s 

Office on the constitutional question raised by L.E.S.’s argument that 

Utah Code section 78A-6-1111(1)(a) (2012) and section 78A-6-

1111(1)(a)–(c) (2014) (two versions of the right-to-counsel provision of 

the Juvenile Court Act) violate equal protection under the Fourteenth 

Amendment and due process. Following supplemental briefing, oral 

arguments were again heard on March 2, 2016.

¶ 18 L.E.S. raises four issues on appeal: a claim of ineffective 

assistance of counsel and claims to the right to counsel under the Equal 

Protection Clause of the Fourteenth Amendment, under the Due 

Process Clause of the Fourteenth Amendment, and under the due 

process clause of the Utah Constitution. We hold that, even though not 

preserved, the constitutional issues may be reached in this case under 

the exceptional circumstances exception. For reasons explained below, 

we hold that the denial of counsel violated L.E.S.’s federal due process 

rights. We reverse and remand for further proceedings in accordance 

with this opinion.
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Opinion of the Court

6

PRESERVATION

¶ 19 We first address the issue of preservation and hold that the 

constitutional arguments for the right to counsel may be reached in this 

case under the exceptional circumstances exception. When an issue is 

not properly preserved, we will address the issue for the first time on 

appeal “only if (1) the appellant establishes that the district court 

committed ‘plain error,’ (2) ‘exceptional circumstances’ exist, or (3) in 

some situations, if the appellant raises a claim of ineffective assistance 

of counsel in failing to preserve the issue.” State v. Low, 2008 UT 58, 

¶ 19, 192 P.3d 867 (citation omitted); see also State v. Munguia, 2011 UT 5, 

¶¶ 10–13, 253 P.3d 1082; H.U.F. v. W.P.W., 2009 UT 10, ¶ 25 n.12, 203 

P.3d 943; State v. Lee, 2006 UT 5, ¶ 24, 128 P.3d 1179. Exceptional 

circumstances is a doctrine that “applies to rare procedural anomalies.” 

Jacob v. Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535. We apply this 

“exception sparingly, reserving it for the most unusual circumstances 

where our failure to consider an issue that was not properly preserved 

for appeal would have resulted in manifest injustice.” Id. (internal 

quotation marks omitted).

¶ 20 Exceptional circumstances is a narrow exception but one that 

is met by the unusual procedural circumstances in this case. The district 

court initially granted L.E.S. “appointed counsel in a parental-rights 

termination proceeding initiated by a private party in district court.” 

The deputy county attorney, on whose advice the court had relied in 

appointing counsel, later filed a motion to intervene, arguing that the 

statute did not provide a right to counsel for termination proceedings 

in district court. L.E.S.’s court-appointed counsel failed to respond to 

the motion. Additionally, since L.E.S. was represented by counsel, 

L.E.S. had no right to oppose the motion himself. See State v. Navarro, 

2010 UT App 302, ¶ 3, 243 P.3d 519 (per curiam) (“[T]he [criminal] 

defendant may not benefit from the assistance of counsel while 

simultaneously filing pro se motions.”); State v. Wareham, 2006 UT App 

327, ¶ 33, 143 P.3d 302 (“The [criminal] defendant may choose selfrepresentation or the assistance of counsel, but is not entitled to a 

‘hybrid representation’ where he could both enjoy the assistance of 

counsel and file pro se motions. The only exception to this rule is that a 

defendant may file a pro se motion to disqualify his appointed 

counsel.” (citation omitted)). The court granted the unopposed motion, 

denying L.E.S. court-appointed counsel. L.E.S. subsequently found 

himself unrepresented and would have to make a sophisticated 

constitutional argument for the right to counsel. Most importantly, 

L.E.S. had no technical vehicle for making such an argument because he 
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7

had already lost on the issue of the right to counsel, and “[m]otions to 

reconsider are not recognized by the Utah Rules of Civil Procedure.” 

Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615. 

¶ 21 We conclude that these circumstances constitute one of those 

“rare procedural anomalies” that qualify for the exceptional 

circumstances exception to the preservation rule.2 When a party is 

appointed counsel who refuses to make an argument for the right to 

counsel when that right is challenged, and the party is barred from 

making that argument, and the party then is denied counsel and 

subsequently would have to make a sophisticated constitutional

argument for the right to counsel with no technical vehicle for making 

such an argument, exceptional circumstances are met.3 Thus, under the 

exceptional circumstances exception, we may reach L.E.S.’s 

constitutional arguments for the right to counsel in parental-rights 

termination proceedings, even though they were raised for the first 

time on appeal.

ANALYSIS

¶ 22 We apply the test from Lassiter v. Department of Social Services

and determine that L.E.S. had a federal due process right to counsel in 

the district court proceedings and that that right was erroneously 

 

2 To conclude otherwise would be to require L.E.S. to have filed a 

motion that is not technically recognized by the Utah Rules of Civil 

Procedure. We decline to require parties to file motions that our cases 

say do not exist. See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 

P.3d 615 (“[T]rial courts are under no obligation to consider motions for 

reconsideration . . . .”). 

3 Our holding today should not be construed to mean that the 

exceptional circumstances exception applies any time a lawyer fails to 

make an argument. Rather, our holding is intricately tied to the 

deprivation of counsel under the unique facts of this proceeding. Here, 

a lawyer was appointed, but abdicated all responsibility by failing to 

make any argument regarding L.E.S.’s right to representation, 

constructively denying L.E.S. counsel and leaving him without the 

technical ability to present to the district court his own, separate 

argument for counsel. Moreover, L.E.S. is without a meaningful 

malpractice action as that does not provide a vehicle for regaining his 

parental rights in K.A.S. 
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denied. 452 U.S. 18 (1981).4 L.E.S. correctly argues that “the trial court 

erred by failing to consider the Eldridge factors” as applied by the 

United States Supreme Court in Lassiter.5 In Lassiter, the Court 

 

4 Because we find that L.E.S. had a federal due process right to 

counsel, and as a matter of constitutional avoidance, we do not reach 

his other constitutional arguments for the right to counsel, namely the 

arguments under state due process and federal equal protection. 

Regarding the federal equal protection argument, we note that L.E.S. 

challenged the constitutionality of two sections of the Juvenile Court 

Act. New versions of those provisions were issued while the case was 

still ongoing in the district court, and we requested additional briefing 

from the parties and briefing from the Attorney General’s Office 

regarding the constitutionality of those statutes and which version 

applied to the proceedings. Since then, new versions have again been 

issued in 2016. If we were to consider whether equal protection 

provides a right to counsel, we would have to again request briefing 

about which version of the statute would apply, which would further 

delay resolution. Thus, the concern about additional delay in a case 

where time is of the essence is an additional reason for us to not reach 

L.E.S.’s other constitutional arguments.

Our holding today also means we do not need to address the 

constitutionality of the relevant section of the Juvenile Court Act—Utah 

Code section 78A-6-1111(2)—under federal due process. This section, at 

least as of 2014, prohibited court-appointed counsel for proceedings 

initiated by a private party in juvenile courts, but it neither provided 

for nor prohibited the appointment of counsel in district courts. As we 

explain in this opinion, the district court had an independent obligation 

to conduct a Lassiter analysis, and nothing in section 1111(2) is to the 

contrary, as by its own terms, the Juvenile Court Act applies only to 

juvenile court proceedings. See UTAH CODE § 78A-6-105(10) (“‘Court’ 

means the juvenile court.”). Therefore, as we have already decided

that section 1111(2) is not facially unconstitutional in In re E.K.S., 2016 

UT 56, __ P.3d __, and because we do not resolve this case under the 

Juvenile Court Act, we need not and do not reach the issue of whether 

section 1111(2) is constitutional as applied under the Due Process 

Clause of the Fourteenth Amendment of the United States Constitution.

5 Mathews v. Eldridge, 424 U.S. 319, 335 (1976) “propounds three 

elements to be evaluated in deciding what due process requires, viz., 

the private interests at stake, the government’s interest, and the risk 

(cont.)
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considered whether indigent parents in parental-rights termination 

proceedings have a right to counsel. The Court recognized that there is 

a presumption against the right to counsel unless an indigent litigant’s 

physical liberty is at stake but held that that presumption may be 

overcome by the Eldridge factors. It determined that courts “must 

balance [the Eldridge factors] against each other, and then set their net 

weight in the scales against the presumption that there is a right to 

appointed counsel only where the indigent, if he is unsuccessful, may 

lose his personal freedom.” Id. at 27.

¶ 23 It appears from the record that the district court found that 

L.E.S. was indigent. Upon making that finding, the district court was 

required as a matter of law to apply the test set forth in Lassiter in order 

to determine whether L.E.S. had a right to counsel. Nowhere in the 

record does it appear that the district court applied the Lassiter test. 

Instead, the district court appears to have based its decision that L.E.S. 

had no right to counsel on an interpretation of the right-to-counsel 

provision in the Juvenile Court Act and the lack of a corresponding 

provision in the district court context. This was error. And “because 

child-custody litigation must be concluded as rapidly as is consistent 

with fairness,” rather than remand for additional findings, “we decide 

today whether the [district court] judge denied [L.E.S.] due process of 

law” under the Fourteenth Amendment by reversing its original 

appointment of counsel for L.E.S. Id. at 32. (footnote omitted).

¶ 24 According to Lassiter, 

[i]f, in a given case, the parent’s interests were at their 

strongest, the State’s interests were at their weakest, and 

the risks of error were at their peak, it could not be said 

that the Eldridge factors did not overcome the 

presumption against the right to appointed counsel, and 

that due process did not therefore require the 

appointment of counsel.

Id. at 31. To put it more plainly, where the parent’s interests are at their 

strongest, the State’s interests at their weakest, and the risks of error at 

their peak,6 the presumption against the appointment of counsel has 

 

that the procedures used will lead to erroneous decisions.” Lassiter v. 

Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981).

6 The dissent suggests that “the Lassiter standard is highly 

dependent on the third . . . factor” (i.e., the risk of error), almost to the 

(cont.)
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been overcome and due process requires the appointment of counsel. 

We now proceed to analyze the Eldridge factors in the context of the 

case at hand and determine that they overcome the presumption 

against the right to counsel. Thus, we conclude that L.E.S. had a federal 

due process right to counsel in the district court proceedings. Because 

that right was denied, we reverse and remand for further proceedings 

in accordance with this decision.

I. L.E.S.’S INTERESTS

¶ 25 First, we consider the private interests at stake: L.E.S.’s 

parental interest in his daughter, K.A.S. A parent’s “right to ‘the 

companionship, care, custody, and management of his or her children’ 

is an important interest that ‘undeniably warrants deference and, 

absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t 

of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 

645, 651 (1972)). In fact, “[t]he right of a fit, competent parent to raise 

the parent’s child without undue government interference is a 

fundamental liberty interest that has long been protected by the laws 

and Constitution and is a fundamental public policy of this state.” 

UTAH CODE § 62A-4a-201(1)(c);7 see id. § 78A-6-503(1) (“Under both the 

United States Constitution and the constitution of this state, a parent 

possesses a fundamental liberty interest in the care, custody, and 

management of the parent’s child.”); id. § 78A-6-503(4) (“The court 

should give serious consideration to the fundamental right of a parent 

to rear the parent’s child, and concomitantly, [to] the right of the child 

to be reared by the child’s natural parent.”); see also Lassiter, 452 U.S. at 

38 (“[F]ar more precious . . . than property rights, . . . parental rights 

have been deemed to be among those essential to the orderly pursuit of 

happiness by free men.” (first and second alterations in original) 

 

exclusion of the first two factors. Infra ¶ 70. We cannot agree with this 

proposition. It is true that the third factor is important and perhaps has 

drawn the most attention, but that is not to say that the other two 

factors do not play a role. We read Lassiter to require all three. Lassiter, 

452 U.S. at 31 (“The dispositive question . . . is whether the three 

Eldridge factors, when weighed against the presumption that there is no 

right to appointed counsel . . . , suffice to rebut that presumption . . . .”).

7 Unless otherwise indicated, citations are to the current edition of 

the Utah Code. We have omitted the date from citations to the current 

edition.
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(citation omitted) (internal quotation marks omitted)). Therefore, as 

noted in Lassiter, a “parent’s interest in the accuracy and justice of the 

decision to terminate his or her parental status is . . . a commanding 

one.” Id. at 27; see UTAH CODE § 62A-4a-201(1)(b) (“Until the state 

proves parental unfitness, . . . the child and the child’s parents share a 

vital interest in preventing erroneous termination of their natural 

relationship.”). Furthermore, the Court indicated that the parent’s 

“extremely important” interest “may be supplemented by the dangers 

of criminal liability inherent in some termination proceedings.” Lassiter, 

452 U.S. at 31.

¶ 26 In this case, the parent’s interests were at their strongest or 

very nearly so. L.E.S.’s right, as a parent, to the companionship, care, 

custody, and management of K.A.S. is clearly an important interest. 

Thus, he has a commanding interest in the accuracy and justice of the 

parental-rights termination proceeding. Furthermore, there is some 

concern regarding the risk of self-incrimination in this case, where the 

district court found that L.E.S. should have taken K.A.S.’s mother to 

court for refusing to facilitate visits but that he did not do so because 

“he was afraid because he was on drugs,” and where the district court 

also noted that L.E.S.’s “extensive substance abuse is terms of neglect.” 

It is unclear whether these findings were based on testimony elicited 

from L.E.S. or from evidence that was submitted, but L.E.S. did testify 

and was cross-examined, and it certainly appears that there was a risk 

of self-incrimination through the disclosure of information regarding 

his use of controlled substances.8 Thus, we conclude that L.E.S.’s 

interests were at their strongest or very nearly so.

 

8 Aside from the risk of self-incrimination, there might also be some 

danger of criminal liability based on allegations in the petition to 

terminate L.E.S.’s rights. In Lassiter, it appears that “the petition to 

terminate Ms. Lassiter’s parental rights contained no allegations of 

neglect or abuse upon which criminal charges could be based.” Lassiter, 

452 U.S. at 32. In contrast, the petition in this case alleged neglect and 

emotional abuse, including a statement that L.E.S. “has not paid child 

support for years.” Admittedly, however, it is not clear whether the 

allegations here are sufficient to potentially lead to criminal charges (for 

example, it is unclear whether “child support” refers to court-ordered 

child support).
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II. THE STATE’S INTEREST

¶ 27 Second, we consider whether the State’s interests in not 

appointing counsel were at their weakest. As the Court pointed out in 

Lassiter v. Department of Social Services, the State has divergent 

interests—it has an interest in appointing counsel as well as in not 

appointing counsel. The State has a legitimate pecuniary interest in not 

appointing counsel. 452 U.S. 18, 28 (1981). However, the State’s 

pecuniary interest “is hardly significant enough to overcome private 

interests as important as those here.” Id. The Court in Lassiter also 

recognized that “the State may share the indigent parent’s interest in 

the availability of appointed counsel” because of the State’s “urgent 

interest in the welfare of the child” and its “interest in an accurate and 

just decision.” Id. at 27. In Lassiter, the State was clearly invested in and 

therefore particularly interested in the child’s welfare, as the parentalrights termination proceeding in that case was initiated by the 

Department of Social Services after the child had been in foster care for 

more than two years. Id. at 20–21, 28.

¶ 28 The State’s interest in not appointing counsel in the case at 

hand was relatively weak. The State, of course, had a legitimate 

pecuniary interest in not appointing counsel, but as in Lassiter, we

recognize that that interest is hardly significant enough to overcome an 

interest as important as a parent’s rights to his or her child. And the 

State’s interest in terminating L.E.S.’s parental rights was certainly less 

urgent in this case than it was in Lassiter, because this parental-rights 

termination proceeding was initiated and advanced by a private party 

rather than by the State. Regardless, the State still had an interest in the 

welfare of the child, and the State is necessarily involved in the 

termination of parental rights since only the State can terminate a 

parent’s rights to his or her child. Thus, the State still “share[d] with the 

parent an interest in a correct decision,” which is more “likely to be 

obtained through the equal contest of opposed interests.” Id. at 28, 31. 

In this case, the State’s interest in appointing counsel was stronger than 

its interest in not appointing counsel. Therefore, we conclude that the 

State’s interest in not appointing counsel was relatively weak.

III. RISKS OF ERROR

¶ 29 Third, we consider whether the risks of error were at their 

peak. Specifically, we consider “the risk that a parent will be 

erroneously deprived of his or her child because the parent is not 

represented by counsel.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 28

(1981). Similarly to North Carolina law as set out in Lassiter, Utah law 
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provides a number of procedures to help ensure accurate decisions in 

parental-rights termination proceedings.9 By way of example, the 

petition must include “the grounds on which termination of parental 

rights is sought.” UTAH CODE § 78A-6-505(1)(f). Additionally, a hearing 

must be held on the question of termination of parental rights, and the 

petitioner must “establish the facts by clear and convincing evidence.” 

Id. § 78A-6-506(2)–(3).

¶ 30 Despite such protections, there can still be considerable risk of 

error in parental-rights termination proceedings, which can be 

complicated for the parent seeking to defend his or her parental rights 

without the aid of counsel. The Court in Lassiter recognized the 

argument that parents are “uniquely well informed” about the subject 

of the parental-rights termination hearing (the parent’s relationship 

with the child) but indicated that the ultimate issues in such cases are 

not always simple. Lassiter, 452 U.S. at 29–30. The Court pointed out 

that most parents would have difficulty understanding and confuting 

expert medical and psychiatric testimony, which is sometimes 

presented. Id. at 30. Additionally, it recognized that many parents 

facing termination proceedings may “be people with little education, 

who have had uncommon difficulty in dealing with life, and who are, 

at the hearing, thrust into a distressing and disorienting situation.” Id.

Consequently, “courts have generally held that the State must appoint 

counsel for indigent parents at termination proceedings.” Id.

¶ 31 In the case at hand, the risks of error were significant. Because 

this case involves privately initiated termination proceedings, L.E.S. has 

not enjoyed the additional protections provided in state-initiated 

termination cases. See, e.g., UTAH CODE § 62A-4a-203(1)(a) (“[T]he 

division shall . . . make reasonable efforts to prevent or eliminate the 

need for removal of a child from the child’s home . . . .”); id. § 62A-4a202(1)(a) (“[T]he division shall provide in-home services for the 

purpose of family preservation to any family with a child whose health 

and safety is not immediately endangered, when . . . the family is in 

 

9 The procedures outlined in this paragraph are some of those 

applicable to the particular circumstances of this case as opposed to an 

exhaustive listing of procedures for ensuring accurate decisions in 

parental-rights termination proceedings generally under Utah law. And 

although they appear in the Juvenile Court Act, we assume here that 

these procedures apply to parental-rights termination proceedings that 

take place in district court.
Cite as: 2016 UT 55

Opinion of the Court

14

crisis . . . .”); id. § 62A-4a-201(4) (indicating that after a temporary outof-home placement, “the division may . . . (a) when safe and 

appropriate, return the child to the child’s parent; or (b) as a last resort, 

pursue another permanency plan”); id. § 78A-6-503(3) (“If the party 

moving to terminate parental rights is a governmental entity, the court 

shall find that any actions or allegations made in opposition to the 

rights and desires of a parent regarding the parent’s child are 

supported by sufficient evidence to satisfy a parent’s constitutional 

entitlement to heightened protection against government interference 

with the parent’s fundamental rights and liberty interests.”); see also 

infra ¶ 35 n.10. Also, this case appears particularly disorienting because 

the court initially appointed counsel for L.E.S. upon a finding of 

indigence and later reversed the appointment of counsel based on an 

unopposed motion asserting that Utah law did not provide a right to 

counsel for termination proceedings in the district court. This left L.E.S. 

with the need to subsequently make a sophisticated constitutional

argument for the right to counsel that he was unable to make without 

the assistance of counsel.

¶ 32 Furthermore, L.E.S. was incarcerated throughout the duration 

of the proceedings, and it is clear from the record that this led to 

significant communication difficulties and at times even his inability to 

attend proceedings, either in person or telephonically. The district court 

recognized early on that L.E.S. “had difficulty contacting family or 

counsel due to the prison telephone policies to make arrangement[s] to 

retain counsel.” L.E.S.’s sisters attended several of the proceedings and 

attempted to help L.E.S. with his defense, but their efforts appear to 

have been hampered by communication issues with L.E.S. in prison. 

Supra ¶¶ 7–10. L.E.S. was unable to telephonically attend the status 

conference during which the final parental-rights termination hearing 

was scheduled “due to changes in probation officers at the prison” that 

resulted in him not being available by telephone. Supra ¶ 10. He also 

was not present at the September 8, 2014 status conference, where his 

motion to continue was denied. Supra ¶ 15.

¶ 33 Additionally, although the district court held a number of 

status conferences in order to help L.E.S. obtain counsel, the district 

court mentions only one attorney that L.E.S. actually talked with, and 

L.E.S. reported to the district court that that attorney “was reluctant to 

take on the case in fear that because of the . . . prison policy she would 

not be able to provide adequate counsel.” 

¶ 34 While no expert medical or psychiatric testimony or other 

similarly complicated evidence was brought before the court, it is 
Cite as: 2016 UT 55

Opinion of the Court

15

possible that had L.E.S. been represented by counsel, such testimony 

may have been brought. At this stage, it is difficult to conclude that the 

case below was simple and uncomplicated, dealing exclusively with 

issues about which L.E.S., as K.A.S.’s parent, was “uniquely well 

informed,” when the apparent simplicity of the record may be due to 

the fact that L.E.S. represented himself pro se and had no opportunity 

to present more complicated evidence and argument with the aid of 

counsel. Thus, we conclude that the risks of error in this case were 

significant, even if not quite at their peak.

IV. ELDRIDGE FACTORS BALANCED AND

WEIGHED AGAINST PRESUMPTION

¶ 35 Finally, we balance the three Eldridge factors against each 

other and then weigh them against the presumption against the right to 

counsel. As already indicated, L.E.S.’s interest is “a commanding one,” 

and the State shares L.E.S.’s interest in reaching a correct decision. 

When balancing these interests in favor of appointing counsel against 

the State’s relatively weak, albeit legitimate, pecuniary interest in not

appointing counsel, the equation clearly comes out in favor of 

appointing counsel. And when we add the significant risks of error to 

this balance, it becomes abundantly clear that the Eldridge factors favor 

a right to counsel in this case. Upon weighing these significant interests 

against the presumption against the appointment of counsel, we hold 

that they outweigh that presumption and that L.E.S. therefore had a 

right to appointed counsel under the Due Process Clause of the 

Fourteenth Amendment. Because the initial appointment of counsel 

was reversed and L.E.S. had to proceed pro se, his federal due process 

right to counsel was violated.10

 

10 In Lassiter, the Court’s analysis includes the mother’s lack of 

interest shown in the child and disinclination to participate in the 

judicial process. The Court observed that “the weight of the evidence 

that [Ms. Lassiter] had few sparks of . . . interest [in her son] was 

sufficiently great that the presence of counsel for Ms. Lassiter could not 

have made a determinative difference.” Lassiter v. Dep’t of Soc. Servs., 

452 U.S. 18, 32–33 (1981). In the case at hand, however, L.E.S. indicates 

that he tried for years “to contact or have contact with [K.A.S.] but her 

mother refused or avoided the subject.” He provided copies of a 

number of Facebook messages to back up that assertion. In those 

messages, he expressed that he missed K.A.S. and wanted to see her 

again, including a request “to arrange visitations” and to stop 

(cont.)
Cite as: 2016 UT 55

Opinion of the Court

16

¶ 36 The dissent contends that our analysis “turns th[e] 

presumption [against the right to appointed counsel in civil cases] on 

its head” by “virtually guarantee[ing] appointment of counsel in most 

every case in which a parent’s rights are in jeopardy.” Infra ¶ 48. We 

disagree. We note, at the outset, that our task is simply to apply Lassiter 

to the case before us. That is, our task—our only task—is to consider 

whether the presumption against L.E.S.’s having a right to counsel is 

overcome because (1) L.E.S.’s interest in appointed counsel is strong, 

(2) the State’s interest in denying appointed counsel is weak, and (3) the 

 

“stalling.” Granted, L.E.S. did not take K.A.S.’s mother to court for 

refusing to facilitate visits, because “he was afraid because he was on 

drugs.” Supra ¶ 26. But unlike the mother in Lassiter, L.E.S. has clearly 

shown interest in his child.

L.E.S. has also shown that interest through his efforts to participate 

in these proceedings, again unlike the mother in Lassiter. In Lassiter, the 

mother “had expressly declined to appear at the 1975 child custody 

hearing” and “had not even bothered to speak to her retained lawyer 

after being notified of the termination hearing.” Lassiter, 452 U.S. at 33. 

Her “failure to make an effort to contest the termination proceeding 

was [found to be] without cause.” Id. Here, however, L.E.S. gave notice 

pro se that he contested the adoption, and he attended a number of 

court conferences, both in person and telephonically, and attempted to 

retain counsel. Supra ¶¶ 2, 5–7. He also filed, again pro se, a motion for 

continuance, and upon the denial of that motion and termination of his 

rights, he filed a pro se notice of appeal and has continued to pursue 

the matter in court. Supra ¶¶ 13, 16–17. 

Thus, unlike in Lassiter, we cannot conclude that “the presence of 

counsel . . . could not have made a determinative difference” based on 

the parent’s indifference to the child. See 452 U.S. at 32–33. 

Furthermore, L.E.S. has actively participated in the case, unlike the 

mother in Lassiter, whose “plain demonstration that she is not 

interested in attending a hearing” was among the circumstances 

considered by the Court in holding that “the trial court did not err in 

failing to appoint counsel.” Id. at 33.

Another difference between the two cases, which is not, however, 

included in the analysis section in Lassiter, is the length of incarceration 

of the parent. In Lassiter, the mother had been sentenced to “25 to 40 

years of imprisonment.” Id. at 20. L.E.S., in contrast, expected to be 

released from prison within nine months of his August 4, 2014 motion 

for continuance. See supra ¶ 13.
Cite as: 2016 UT 55

Opinion of the Court

17

risks of error are high. Our application of Lassiter in this case leads us to 

the conclusion that L.E.S. is entitled to counsel. While it would not 

surprise us if the presumption against the right to appointed counsel in 

civil cases were overcome with greater frequency in parental-rights 

termination proceedings than in other contexts where the stakes are 

lower and the core issue in the proceedings is less complicated than 

whether to sever the parent-child relationship, these potential empirical 

results do not drive our analysis. Our task is to faithfully apply Lassiter 

to the facts of each case before us; whatever pattern of outcomes 

emerges from this exercise is the pattern of outcomes required by the 

law. Cf. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 30 & n.6 (1981) 

(noting—without apparent concern—that the presumption against the 

right to counsel in civil cases has “generally” been overcome in the 

parental-rights termination context).

¶ 37 The dissent understands the effect of Lassiter’s presumption to 

be that the right to counsel in civil cases—including parental-rights 

termination cases—must be found only rarely. See infra ¶ 63 n.9. This is 

a misreading of Lassiter. To be sure, Lassiter acknowledges that there is 

a presumption against the right to counsel in civil cases. But Lassiter 

nowhere implies that the effect of this presumption is that if courts 

regularly find a right to appointed counsel in parental-rights 

termination proceedings they are doing it wrong. To the contrary, 

Lassiter emphasizes that 

the ultimate issues with which a termination hearing 

deals are not always simple, however commonplace they 

may be. Expert medical and psychiatric testimony, which 

few parents are equipped to understand and fewer still to 

confute, is sometimes presented. The parents are likely to 

be people with little education, who have had uncommon 

difficulty in dealing with life, and who are, at the hearing, 

thrust into a distressing and disorienting situation. That 

these factors may combine to overwhelm an uncounseled 

parent is evident . . . . 

Lassiter 452 U.S. at 30. For this reason, Lassiter notes, “courts have 

generally held that the State must appoint counsel for indigent parents 

at termination proceedings.” Id. Nor does Lassiter lament, or seek to 

change, this state of affairs. To be sure, at one point the Lassiter court 

conceded that it could not “say that the Constitution requires the 

appointment of counsel in every parental termination proceeding.” Id. 

at 31. And it is certainly true that the Lassiter court concluded, under 

the specific facts before it, that counsel did not need to be appointed. 
Cite as: 2016 UT 55

Opinion of the Court

18

But Lassiter’s agnosticism about the frequency with which the 

Constitution would end up requiring the appointment of counsel in 

parental-rights termination proceedings is a far cry from a hard-nosed 

insistence that lower courts should work to make sure that the right to 

counsel in parental-rights termination cases is only grudgingly found.

¶ 38 We also disagree with the dissent that our application of 

Lassiter “demands appointment in the run of the mill case.” Infra ¶ 73

n.17. Instead, our application of Lassiter requires the appointment of 

counsel whenever the parent’s interest in appointed counsel is strong, 

the state’s interest is weak, and the risks of error are high. Our opinion 

is consistent with the proposition that in a case with circumstances like 

Lassiter—where, for example, the parent has not taken an interest in the 

proceedings and “the weight of the evidence” of the parent’s lack of 

interest in the child is “great”—or in a case where the parent faced 

fewer procedural or institutional barriers to availing himself of the 

court, the presumption against the right to counsel will not be 

overcome. Lassiter, 452 U.S. at 32; cf. supra ¶ 35 n.10 (noting evidence of 

L.E.S.’s interest in parenting K.A.S.). But, again, like the Supreme Court 

in Lassiter, our analysis is not driven by any empirical speculation about 

the frequency with which the presumption against the right to counsel 

will be overcome in parental-rights termination proceedings. We focus 

only on application of the legal test.11 And, for the reasons we have 

 

11 In any event, we note that even if application of the Lassiter test 

will result in the right to appointed counsel in many cases in which a 

parent’s rights are in jeopardy, this result stems, in large part, from the 

existence of a statutory right to counsel under Utah Code section 78A-6-

1111(1)(c). Under that section, indigent parents have the right to 

counsel in parental-rights termination proceedings initiated by the State 

or a political subdivision of the State in juvenile court. Id. In such stateinitiated termination cases, the risk of error is likely to be lower because 

of the State’s goal to preserve families if possible and because of 

additional protections such as the provision of in-home services and the 

requirement of “sufficient evidence to satisfy a parent’s constitutional 

entitlement to heightened protection against government interference 

with the parent’s fundamental rights and liberty interests.” UTAH CODE

§§ 62A-4a-201(1)(a), 78A-6-503(3); see also id. §§ 62A-4a-203(1)(a), 

62A-4a-202(1)(a). Because of the lower risk of error, the presumption 

against the right to counsel would be less likely to be overcome. 

However, because of the statutory right to counsel under Utah Code 

(cont.)
Cite as: 2016 UT 55

Opinion of the Court

19

explained, our application of that test leads us to the conclusion that the 

presumption against the right to counsel is overcome in this case.

CONCLUSION

¶ 39 As discussed, we conclude that in the narrow circumstances 

of this case, the exceptional circumstances exception to the preservation 

requirement applies to allow us to reach L.E.S.’s constitutional 

arguments for the right to counsel. We also hold, based on the Lassiter 

test, that L.E.S. had a federal due process right to counsel in this case 

and that that right was improperly denied.12 Therefore, we reverse the 

decision of the court below.

 

section 78A-6-1111(1)(c), the Lassiter test is not applied in such cases. 

Consequently, while it might appear that the presumption in Lassiter is 

“turn[ed] . . . on its head,” in reality the Lassiter test is simply never 

applied to many of the cases in Utah in which the presumption might 

prevail.

12 Citing In re J.D.M., 810 P.2d 494 (Utah Ct. App. 1991), L.E.S. 

argues that he is entitled to his attorney fees on appeal. However, L.E.S. 

misreads In re J.D.M. In Utah, a party is generally entitled to attorney 

fees only when such fees are authorized by contract or by statute. 

Bilanzich v. Lonetti, 2007 UT 26, ¶ 11, 160 P.3d 1041 (“Generally, attorney 

fees are awarded only when authorized by contract or by statute.”). 

Neither contractual nor statutory authorization is present in the case at 

hand. And to the extent that L.E.S. is arguing for an exception to the 

general rule that attorney fees are awardable only when authorized by 

contract or by statute, that argument is inadequately briefed and we 

reject it.

We also recognize that there may be an equal protection argument 

for requiring attorney fees on appeal to be paid in termination 

proceedings originating in district court as they are for those 

originating in juvenile court. UTAH CODE § 78A-6-1111(1)(g). There may 

also be an argument that Lassiter requires appointment of counsel on 

appeal for indigent parties. However, these arguments are not before us 

today. Accordingly, we deny L.E.S.’s request for attorney fees on 

appeal. 
In re K.A.S.

DURHAM, J., concurring

20

¶ 40 However, although L.E.S. had a federal due process right to 

counsel earlier, it is unclear from the facts of the case whether he has 

such a right now. The right to counsel is available only to indigent 

individuals. During the proceedings below, L.E.S. requested a 

continuance until at least April 29, 2015, and in his briefing to the Utah 

Supreme Court, he indicated that he had hoped “to push the 

proceeding back to April when he would be out of prison and could 

pay for private counsel.” Based on that information, L.E.S. is 

presumably no longer incarcerated, having presumably been released 

more than a year ago. Whether he is working and his current financial 

status are unknown to us. Thus, we do not know whether he is 

indigent. We therefore instruct the district court to first make a 

determination of whether L.E.S. is indigent. If the district court finds 

L.E.S. indigent, it should then proceed to apply the Lassiter test based 

on the facts and circumstances as they stand at that point, in order to 

determine whether L.E.S. should be appointed counsel based on federal 

due process for the parental-rights termination proceeding going 

forward.

JUSTICE DURHAM, concurring:

¶ 41 I concur in the analysis and the result of the majority opinion’s 

treatment of the federal due process question. I write separately to note 

that the court should have first analyzed the state due process claim 

raised by the appellant.

¶ 42 “[A] state court always is responsible for the law of its state 

before deciding whether the state falls short of a national standard, so 

that no federal issue is properly reached when the state’s law protects 

the claimed right.” Hans A. Linde, E Pluribus—Constitutional Theory and 

State Courts, 18 GA. L. REV. 165, 178 (1984).

The right question is not whether a state’s guarantee is the 

same as or broader than its federal counterpart as 

interpreted by the Supreme Court. The right question is 

what the state’s guarantee means and how it applies to 

the case at hand. The answer may turn out the same as it 

would under federal law. The state’s law may prove to be 

more protective than federal law. The state law also may 

be less protective. In that case the court must go on to 
Cite as: 2016 UT 55

DURHAM, J., concurring

21

decide the claim under federal law, assuming it has been 

raised. 

Id. at 179. This court has, on numerous occasions, cited this 

methodology favorably.

¶ 43 In West v. Thomson Newspapers, we observed that, as a matter 

of logic,

[t]he proper sequence is to analyze the state’s . . . 

constitutional law[] before reaching a federal 

constitutional claim. This is required not for the sake 

either of parochialism or style, but because the state does 

not deny any right claimed under the federal Constitution 

when the claim before the court in fact is fully met by 

state law.

By looking first to state constitutional principles, we also 

act in accordance with the original purpose of the federal 

system. Prior to the incorporation of the Bill of Rights, 

state constitutions were the only source of protection for 

individual rights and have continued as important 

sources of such rights ever since. Further, a growing 

number of courts have recognized both the utility and the 

legitimacy of fully exhausting state law before resorting to 

the federal constitution and accordingly have adopted the 

primacy model. 

872 P.2d 999, 1006 (Utah 1994) (first alteration in original) (footnote 

omitted) (citations omitted) (quoting Sterling v. Cupp, 625 P.2d 123, 126 

(Or. 1981)).

¶ 44 In this case, appellant devoted nearly ten pages of a thirtyfour page opening brief to the state Due Process Clause, and pointed 

out in his reply brief that appellees had failed to respond to his state 

constitutional arguments. Under those circumstances, I believe the 

court should have addressed them. Notwithstanding the ultimate result 

in this case under federal law, there will remain an open question as to 

the constitutionality of Utah’s appointment of counsel regime. See, e.g., 

In re Adoption of A.W.S., 339 P.3d 414, 419–20 (Mont. 2014) (concluding 

that Montana’s constitutional right to equal protection requires that 

counsel be appointed for indigent parents in termination proceedings 

brought under the state’s Adoption Act).
In re K.A.S.

LEE, J., dissenting

22

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶ 45 Parental-rights termination cases are heart-wrenching. They 

present problems of enormous consequence—of severance of one of the 

most cherished of all human bonds, with the safety and welfare of 

children hanging in the balance. This is a matter on which our 

sensitivity for justice is heightened. And for that reason I can appreciate 

a desire to find a way to secure the appointment of counsel in a case

like this one. As a pure policy matter, I see significant upsides in 

assuring that a parent has the benefit of legal counsel before his legal 

rights are terminated.

¶ 46 That said, the issues before us are not policy questions. We are 

not legislators voting on a statute guaranteeing appointed counsel in 

parental-termination cases. We are judges faced with questions of 

law—under our law of preservation, and on matters of statutory and 

constitutional interpretation. And I find no basis in law for the 

majority’s conclusions. 

¶ 47 I respectfully dissent. First, I would hold that the father failed 

to preserve a claim for a right to counsel under the Due Process Clause 

and does not qualify under an exception to the rule of preservation. The 

“exceptional circumstances” exception invoked by the majority is not 

really a legal exception; it is more of a reservation of this court’s “right” 

to reach the merits when we want to. We have never articulated 

concrete standards giving any distinct content to “exceptional 

circumstances.” That is troubling. We, of course, have the final say and 

thus the ability to sidestep our own rules and precedents. But the fact 

that we are a court of last resort does not justify our exercise of power 

in a black box. We should exercise our discretion in a transparent and 

consistent manner. I see no way to do so under the “exceptional 

circumstances” doctrine. I would accordingly repudiate the exception 

here and going forward, and limit our review of unpreserved errors to 

those qualifying under the plain error doctrine or on a claim for 

ineffective assistance of counsel.

¶ 48 Second, even assuming for the sake of argument that we can 

excuse the father’s lack of preservation, I would reject his constitutional 

claim on its merits. The standard set forth in Lassiter v. Department of 

Social Services, 452 U.S. 18 (1981), prescribes a presumption against

appointment of counsel in parental-rights termination cases. The 

majority turns that presumption on its head. It applies the Lassiter test 

in a way that virtually guarantees appointment of counsel in most 

every case in which a parent’s rights are in jeopardy. That may be a 
Cite as: 2016 UT 55

LEE, J., dissenting

23

good idea as a policy matter, but it is not required by the Due Process 

Clause—under either the United States Constitution or the Utah 

Constitution. I would so hold.

I

¶ 49 I find no basis for excusing L.E.S.’s failure to preserve a 

constitutional claim to a right to counsel. He never asserted such a 

claim in the district court. He never invoked the Due Process Clause as 

a basis for appointment of counsel, and certainly never asked the 

district judge to apply the due process balancing test in Lassiter v. 

Department of Social Services, 452 U.S. 18 (1981). 

¶ 50 The majority agrees. It concedes that L.E.S.’s constitutional 

claims were not preserved. Yet it still reaches the merits on the basis of 

so-called “exceptional circumstances.” In so doing the court says that 

we reserve this exception for “unusual circumstances” in which “our 

failure to consider an issue that was not properly preserved for appeal 

would have resulted in manifest injustice.” Supra ¶ 19 (quoting Jacob v. 

Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535). And it cites “unusual 

procedural circumstances in this case” that purportedly qualify L.E.S. 

for the exception. Supra ¶ 20.

¶ 51 I respectfully dissent. On reflection1 I have come to the 

conclusion that the “exceptional circumstances” doctrine should be 

repudiated. Our court has invoked this “exception” on a number of 

occasions over the years. Yet we have never really given it any distinct 

 

1 When we issued a supplemental briefing order at an earlier stage 

of this case, we indicated that we had “unanimously” concluded that 

L.E.S. qualified for an exception to the rule of preservation. 

Supplemental Briefing Order (September 21, 2015). That was true at the 

time we issued the order. But I have since come to see the matter 

differently. Perhaps that makes me a flip-flopper. I prefer to see it as 

wisdom coming late—and better than not at all. See ARTHUR CONAN 

DOYLE, The Man with the Twisted Lip, in THE ADVENTURES OF SHERLOCK 

HOLMES 101 (Sam Vaseghi ed., Wisehouse Classics 2016) (1892) (“‘It has 

been in some points a singular case,’ said Holmes, flicking the horse on 

into a gallop. ‘I confess that I have been as blind as a mole, but it is 

better to learn wisdom late than never to learn it at all.’”). In all events I 

will say, as have many judges on many occasions, that the matter “does 

not appear to me now as it appears to have appeared to me then.” 

Andrews v. Styrap, 26 L.T.R. (N.S.) 704, 706 (Ex. 1872) (Bramwell, B.).
In re K.A.S.

LEE, J., dissenting

24

content. In fact we seem to have gone out of our way to do the 

opposite. We have spoken of the exceptional circumstances exception 

as “ill-defined,” State v. Holgate, 2000 UT 74, ¶ 12, 10 P.3d 346, and our 

court of appeals has referred to it as a doctrine that is not “precise” and 

cannot “be analyzed in terms of fixed elements,” State v. Irwin, 924 P.2d 

5, 8 (Utah Ct. App. 1996). 

¶ 52 The majority follows a similar course in this case. Instead of 

defining the content of the doctrine, the court continues the practice of 

speaking in generalities. It concludes only that this is a “narrow 

exception” reserved for “unusual procedural circumstances,” and 

proceeds to list the circumstances in this case that strike the court as 

noteworthy. Supra ¶ 20. That is doctrinally circular. If we are unwilling 

or unable to define the content of the exceptional circumstances 

doctrine, then we don’t really have a doctrine; we have a reservation of 

our “right” to ignore a preservation problem when we find it 

expedient. 

¶ 53 That strikes me as unacceptable. This is a court of law. We 

owe it to both the parties and the lower courts to operate in accordance 

with a transparent set of legal principles. Such principles assure the 

opportunity for evaluation of our decisions. They minimize the risk of 

arbitrary decision making. And they facilitate reliance on our caselaw. 

¶ 54 We undermine all of the above when we hide our analysis in 

the confines of a black box. That is the effect, in my view, of the 

“exceptional circumstances” doctrine applied today. Through the highsounding rhetoric of “manifest injustice” and “rare procedural 

anomalies,” supra ¶ 19, we create the appearance of a legal standard. 

But because we are unwilling to prescribe actual elements or standards 

for this doctrine, we are really just reserving an unchecked right to 

reach the merits when we want to.2

¶ 55 The majority identifies “circumstances” that it deems 

“exceptional.” It notes that the district judge “initially granted” L.E.S.’s 

 

2 See Tory A. Weigand, Raise or Lose: Appellate Discretion and 

Principled Decision-Making, 17 SUFFOLK J. TRIAL & APP. ADVOC. 179, 181 

(2012) (noting that application of an exceptional circumstances 

exception can lead to “loss of clarity and consistency” due to “the lack 

of uniform criteria or identifiable scale as to individual or cumulative 

weight to be given to the multi-factor strain of the discretionary 

exception”). 
Cite as: 2016 UT 55

LEE, J., dissenting

25

request for appointed counsel before he switched course. Supra ¶ 20. 

And it concludes that that appointment left L.E.S. “unrepresented” and 

unable “to make a sophisticated constitutional argument for the right to 

counsel.” Supra ¶ 20. With this in mind, the court purports to state a 

general holding: “When a party is appointed counsel who refuses to 

make an argument for the right to counsel when that right is 

challenged, and the party is barred from making that argument, and 

the party then is denied counsel and subsequently would have to make 

a sophisticated constitutional argument for the right to counsel with no 

technical vehicle for making such an argument, exceptional 

circumstances are met.” Supra ¶ 21. But that is not the statement of a 

general rule. It is a summary of the facts of this case, followed by a 

conclusion that we prefer to reach the merits.3

¶ 56 The court’s summary of the circumstances of the case, 

moreover, make this one seem rather unexceptional. First, I cannot see 

how the initial appointment of counsel can make any difference. The 

appointment, granted, made it initially more difficult for L.E.S. to 

advance his constitutional claim as a pro se party—given that counsel 

failed to respond to the county attorney’s motion asking the court to 

retract the earlier appointment. See supra ¶ 20 (asserting that “L.E.S. had 

no right to oppose the motion himself” while he was represented by 

counsel). But there is no reason to suspect that the initial appointment 

in any way inhibited L.E.S. from making a constitutional claim.4 From 

 

3 The majority seeks to limit the exception that it adopts today by 

asserting that L.E.S.’s lawyer “abdicated all responsibility by failing to 

make any argument regarding L.E.S.’s right to representation.” Supra 

¶ 21 n.3. But despite the rhetorical flourish, the majority’s ultimate 

conclusion boils down to a failure of preservation on the issue raised on 

appeal. The “abdicat[ion] of all responsibility” is purely in the failure to 

raise an issue that the client wishes to raise on appeal. That problem 

falls in the heartland of the law of preservation. And the usual (and in 

my view appropriate) response to a failure to preserve is not to excuse 

it on the ground that it amounts to abdication, but to deem it 

insufficient as a matter of preservation.

4 If L.E.S. had actually been precluded from preserving his 

constitutional claim, then we could excuse his lack of preservation. We 

would do so, however, not under a loose exception to the law of 

preservation, but under one of its core tenets. The rule of preservation 

incorporates a principle of reasonableness. A party has a duty to take 

reasonable efforts to give the district court a chance to correct errors he 

(cont.)
In re K.A.S.

LEE, J., dissenting

26

 

wishes to raise on appeal. State v. Pinder, 2005 UT 15, ¶ 46, 114 P.3d 551; 

Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. That principle 

incorporates a concept of impossibility and a doctrine of futility: A 

party who cannot legally or practically object is not required to do so, 

and our courts accordingly excuse a failure to object where doing so 

would be futile. State v. Rothlisberger, 2004 UT App. 226, ¶ 29, 95 P.3d 

1193. Yet L.E.S. comes nowhere close to qualifying under these 

standards. He had every reason and opportunity to preserve his due 

process claim; he just didn’t think to raise it.

The majority bases its determination of “exceptional circumstances” 

on the fact that “L.E.S. had no technical vehicle” for raising the Lassiter

issue because he had already been denied appointed counsel and 

“[m]otions to reconsider are not recognized by the Utah Rules of Civil 

Procedure.” Supra ¶ 20 (quoting Tschaggeny v. Milbank Ins. Co., 2007 UT 

37, ¶ 15, 163 P.3d 615). But that analysis ignores the agency relationship 

between a party and his lawyer. “For better or worse, our legal system 

treats attorneys as agents for their clients. And on that basis we 

generally deem clients responsible for the decisions they make on 

advice of counsel.” In re Adoption of J.S., 2014 UT 51, ¶ 63, 358 P.3d 1009 

cert. denied sub nom. Bolden v. Doe, 136 S. Ct. 31 (2015). Thus, L.E.S. did

have an opportunity to raise a due process right to appointed counsel. 

The opportunity came to him at a time when he was represented by 

counsel. And counsel’s failure to raise the argument is imputed to 

L.E.S. He cannot avoid the effect of his lawyer’s failure to preserve an 

issue at trial by identifying a new issue that he was “unable” to raise 

because his lawyer failed to do so.

The majority’s contrary conclusion threatens to swallow the law of 

preservation. If a party can avoid the effects of a failure of preservation 

by retaining new counsel on appeal and blaming the lack of 

preservation on prior counsel, I suspect we will see a lot of new lawyers 

retained on appeal. Perhaps that will be a boon to appellate specialists. 

But it will undermine the fairness, efficiency, and reliance concerns 

protected by our law of preservation. The majority’s standard cannot 

stand. In time we will inevitably be forced to retract it. I would avoid 

that eventuality by rejecting the majority’s approach here.

The majority alludes to unspecified deficiencies in a malpractice 

claim in these circumstances. Supra ¶ 21 n.3. It is undoubtedly true that 

a malpractice action would not provide an avenue for L.E.S. to restore 

his parental rights. But our law of preservation has never recognized an 

exception along these lines—an exception measured by the adequacy of 

(cont.)
Cite as: 2016 UT 55

LEE, J., dissenting

27

all that appears, neither L.E.S. nor his lawyer thought to make the 

argument. And in any event there is no doubt that L.E.S. had the 

chance to raise a constitutional claim in subsequent proceedings when 

he was no longer represented by counsel. Again he just failed to do so.

¶ 57 That is why, presumably, the court falls back on the notion 

that the Lassiter framework involves a “sophisticated constitutional 

argument.” Supra ¶ 20. Fair enough. But the argument under Lassiter is 

no more complex or “sophisticated” than any of a wide range of 

constitutional claims we have long deemed subject to the law of 

preservation. And presumably the court is not adopting a general 

exception to the law of preservation for pro se parties advancing 

“sophisticated” constitutional claims.5 It is only asserting that “these 

circumstances” are sufficient. Supra ¶ 21. But that strikes me as 

inadequate. If we are unwilling to articulate a general rule, we leave the 

impression that we are acting lawlessly. And in the absence of any such 

rule here, I dissent from the invocation of the exceptional circumstances 

doctrine. Finding nothing in our caselaw to define the contours of any 

such rule, moreover, I would repudiate this doctrine going forward.

¶ 58 I see no real barrier in our cases to so doing. We have 

adverted to an “exceptional circumstances” basis for an exception to the 

law of preservation in a string of past cases. But we have rarely invoked 

it in a case in which it made any difference. In most cases where we 

have articulated this exception, in other words, we have either declined 

to apply it6 or proceeded to identify an alternative basis for appellate 

 

the remedy in a malpractice suit. And this strikes me as an imprudent 

step—and one we will be required to limit in future cases.

5 Pro se litigants generally are held “to the same standard of 

knowledge and practice as any qualified member of the bar.” State v. 

Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation omitted). Thus, we 

“accord[] every consideration that may reasonably be indulged” from 

the arguments that a pro se litigant makes, id., but we do not excuse 

such a party from the rules of preservation. Cf. id. ¶¶ 20–21 (finding 

invited error and refusing to consider arguments raised on appeal). A 

contrary rule would create chaos in our appellate system. And I assume 

the majority is not abandoning this principle. But that only underscores 

the loose, fact-driven nature of the majority’s decision.

6 See, e.g., State v. Munguia, 2011 UT 5, ¶¶ 24–29, 253 P.3d 1082 

(concluding that the “exceptional circumstances” exception was not 

implicated by the facts of the case); State v. Nelson-Waggoner, 2004 UT 

(cont.)
In re K.A.S.

LEE, J., dissenting

28

review (either a determination that the matter was preserved or that 

review is necessary under the doctrine of plain error).7

 

29, ¶¶ 15–16, 23–24, 94 P.3d 186 (same); In re Schwenke, 2004 UT 17, ¶ 34 

& n.6, 89 P.3d 117 (same); State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994) 

(same); Jolivet v. Cook, 784 P.2d 1148, 1151 (Utah 1989) (same); State v. 

Steggell, 660 P.2d 252, 254 (Utah 1983) (explaining that “[i]n the absence 

of exceptional circumstances, this [c]ourt has long refused to review 

matters raised for the first time on appeal,” and concluding that “[n]o 

exceptional circumstances exist in the present case”); State v. Pierce, 655 

P.2d 676, 677 (Utah 1982) (declining to address unpreserved 

constitutional issue under the exceptional circumstances exception).

7 See, e.g., State v. Low, 2008 UT 58, ¶¶ 19–49, 192 P.3d 867 

(suggesting that “exceptional circumstances” was an established 

doctrine, but ultimately applying “plain error”); State v. Dunn, 850 P.2d 

1201, 1209 n.3 (Utah 1993) (recognizing the existence of the “exceptional 

circumstances” doctrine, but noting that the exception was “ill-defined 

and applies primarily to rare procedural anomalies,” and choosing to 

“proceed under the better-established plain error exception” (citations 

omitted)).

Judge Roth of our court of appeals has suggested that the “most 

prominent cases where Utah courts have found exceptional 

circumstances and reviewed unpreserved issues are ‘where a change in 

law or the settled interpretation of law color[s] the failure to have 

raised an issue at trial.’” State v. Johnson, 2014 UT App 161, ¶ 34, 330 

P.3d 743 (Roth, J., concurring) (alteration in original) (citing State v. 

Lopez, 873 P.2d 1127, 1134 n.2 (Utah 1994); see also State v. Haston, 846 

P.2d 1276 (Utah 1993) (per curiam)). This may be a wise limitation. But 

we have never clearly articulated it—and certainly have never limited 

the exceptional circumstances doctrine to these circumstances. See 

Lopez, 873 P.2d at 1134 n.2 (allowing “independent analysis” on state 

constitutional standard without deciding whether the issue was 

adequately preserved; concluding that such briefing was permitted 

because changes in federal constitutional law explained why the state 

issue may not have been raised below; but failing to give any content to 

the exceptional circumstances doctrine); Haston, 846 P.2d at 1277 

(allowing appellant to assert that his conviction was “for a crime which 

is not recognized in Utah”; but without mentioning “exceptional 

circumstances,” much less defining it; and concluding that a denial of a 

right to raise this argument “would deny [the] defendant due process, 

as guaranteed under our federal and state constitutions”). Ultimately, 

(cont.)
Cite as: 2016 UT 55

LEE, J., dissenting

29

¶ 59 In these circumstances I see no stare decisis reason to retain the 

doctrine of exceptional circumstances. That follows from the fact that 

the doctrine has rarely taken hold as a firm holding of the court, see

State v. Gardiner, 814 P.2d 568, 572 (Utah 1991) (noting that “this court is 

not bound by earlier dicta”), and from the unpredictability and 

unworkability of the doctrine, see Eldridge v. Johndrow, 2015 UT 21, ¶ 40, 

345 P.3d 553 (noting that “to determine whether a precedent has 

become firmly established,” the court first asks “how well it has 

worked in practice”). Thus, I would observe the general rule of 

preservation in this case and limit exceptions to those more firmly 

rooted in our caselaw (plain error review and claims rooted in 

ineffective assistance of counsel).

¶ 60 And I would affirm on that basis. L.E.S. cannot possibly 

establish plain error. The Lassiter balancing test, as noted below, is 

highly fact-intensive and case-specific. It can hardly be plain or obvious 

that counsel should have been appointed under the Lassiter standard, 

particularly where this court is divided on that same question. This is 

not an appropriate case for an ineffective assistance of counsel claim, 

moreover. Under established caselaw, such a claim is limited to the 

criminal realm, in which a party has a Sixth Amendment right to 

counsel.8 This is not such a case, and L.E.S. has no basis for avoiding 

the law of preservation by advancing a claim for ineffective assistance. 

II

¶ 61 Even accepting the majority’s “exceptional circumstances” 

analysis for the sake of argument, I still would affirm. I would do so 

under the Due Process Clause of the United States Constitution under 

the standard set forth in Lassiter v. Department of Social Services, 452 U.S. 

18 (1981), which articulates a presumption against the mandatory 

 

moreover, a barrier to raising an issue in the district court might well fit 

within the existing law of preservation (and not need an exception), 

given that our law requires only reasonable efforts to preserve an issue 

at trial. See supra ¶ 56 n.4.

8 See Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006) (“The 

general rule in civil cases is that the ineffective assistance of counsel is 

not a basis for appeal or retrial. If a client’s chosen counsel performs 

below professionally acceptable standards . . . the client’s remedy is not 

reversal, but rather a legal malpractice lawsuit against the deficient 

attorney.” (citation omitted)).
In re K.A.S.

LEE, J., dissenting

30

appointment of counsel in a parental-rights termination case. I dissent 

from the majority’s analysis because it seems to me to turn this 

presumption on its head. This is a simple, straightforward parentalrights termination case, and I would deem it subject to the presumption 

against the appointment of counsel set forth in Lassiter. 

¶ 62 That conclusion requires me to reach a question not addressed 

by the majority—whether L.E.S. has a right to appointed counsel under 

the Due Process Clause of the Utah Constitution, UTAH CONST. art. I, 

§ 7. To decide that question I would begin with first principles—with 

the text of the Utah Constitution as understood at the time of its 

framing. And I would hold that L.E.S. has no right to appointed 

counsel as a matter of Utah constitutional law because such right would 

not have been recognized as a component of “due process” in 1896.

A

¶ 63 The controlling due process framework under the United 

States Constitution is that set forth in the Lassiter case. In Lassiter, the 

court reiterated a longstanding “presumption that there is a right to 

appointed counsel only where the indigent, if he is unsuccessful, may 

lose his personal freedom.”9 452 U.S. at 27. Yet it also left room for an 

 9 This presumption is a central tenet of the Lassiter opinion. The 

presumption “against the right to appointed counsel” is stated in one 

form or another at least four times in the court’s opinion. See Lassiter, 

452 U.S. at 26–27 (stating of “the presumption that an indigent litigant 

has a right to appointed counsel only when, if he loses, he may be 

deprived of his physical liberty,” and explaining that “[i]t is against this 

presumption that all the other elements in the due process decision 

must be measured”); id. at 27 (“We must balance [the Eldridge factors] 

against each other, and then set their net weight in the scales against 

the presumption that there is a right to appointed counsel only where 

the indigent, if he is unsuccessful, may lose his personal freedom.”); id. 

at 31 (“The dispositive question, which must now be addressed, is 

whether the three Eldridge factors, when weighed against the 

presumption that there is no right to appointed counsel in the absence 

of at least a potential deprivation of physical liberty, suffice to rebut 

that presumption and thus to lead to the conclusion that the Due 

Process Clause requires the appointment of counsel when a State seeks 

to terminate an indigent’s parental status.”); id. (“If, in a given case, the 

parent’s interests were at their strongest, the State’s interests were at 

their weakest, and the risks of error were at their peak, it could not be 

(cont.)
Cite as: 2016 UT 55

LEE, J., dissenting

31

 

said that the Eldridge factors did not overcome the presumption against 

the right to appointed counsel, and that due process did not therefore 

require the appointment of counsel.”). With that in mind, I cannot see 

how the majority can attribute to Lassiter the notion “that the 

presumption against the right to counsel in civil cases has ‘generally’ 

been overcome in the parental-rights termination context.” Supra ¶ 36. 

It is true that Lassiter cited cases that had “held that the State must 

appoint counsel for indigent parents at termination proceedings.” Id. at 

30. But I do not see how we can interpret Lassiter to have endorsed the 

cited cases, or to suggest that their analysis represents a proper 

weighing of the Eldridge factors. None of the cited cases engages in 

Eldridge balancing. See Dep’t of Pub. Welfare v. J.K.B., 393 N.E.2d 406, 

407–09 (Mass. 1979) (failing to acknowledge the presumption or the 

Eldridge factors); State ex rel. Heller v. Miller, 399 N.E.2d 66, 70 (Ohio 

1980) (same); In re Chad S., 580 P.2d 983, 984–86 (Okla. 1978) (same); see 

also Danforth v. Maine Dep’t of Health and Welfare, 303 A.2d 794, 795 (Me. 

1973) (ruling on appointed counsel issue before Eldridge created 

presumption against it); In re Friesz, 208 N.W.2d 259, 260–61 (Neb. 1973) 

(same); Crist v. Division of Youth and Family Servs., 320 A.2d 203, 209–11 

(N.J. 1974) (same); In re Myricks, 533 P.2d 841, 842 (Wash. 1975) (same). 

And the Lassiter court does not cite these cases to illustrate the proper 

weighing of the Eldridge factors in the parental termination setting. The 

cites appear only as a background description of existing practice.

I cannot say whether the Lassiter court “lament[ed] . . . th[e] state of 

affairs” represented by these cases. Supra ¶ 37. But it is beyond dispute 

that its holding dramatically “change[d]” the legal landscape. Id. The 

pre-Lassiter cases, just cited, each concluded that due process always 

required the appointment of counsel in parental termination 

proceedings. See Danforth, 303 A.2d at 795 (“We hold that an indigent 

parent or parents against whom a custody petition is instituted under 

22 M.R.S.A. § 3792 is entitled to have counsel appointed at the State’s 

expense unless the right to counsel is knowingly waived.”); J.K.B., 393 

N.E.2d at 408 (“[I]ndigent parents have a constitutional right to 

appointed counsel, if they wish, before their parental rights are 

terminated . . . .“ (footnote omitted)); In re Friesz, 208 N.W.2d at 260 (“A 

parent’s concern for the liberty of the child, as well as for his care and 

control, involves too fundamental an interest and right to be 

relinquished to the State without the opportunity for a hearing, with 

assigned counsel if the parent lacks the means to retain a lawyer.” 

(internal citations omitted)); Crist, 320 A.2d at 210 (“For the State to 

(cont.)
In re K.A.S.

LEE, J., dissenting

32

 

intrude permanently or only temporarily in a manner designed to 

disassemble the nuclear family, society’s most basic human and 

psychological unit, without affording counsel and guidance to a class of 

society’s least equipped adversaries strikes the court as a fundamental 

deprivation of procedural due process.”); State ex rel. Heller, 399 N.E.2d 

at 70 (holding that “in actions instituted by the state to force the 

permanent, involuntary termination of parental rights, the United 

States and Ohio Constitutions’ guarantees of due process and equal 

protection of the law require that indigent parents be provided with 

counsel and a transcript at public expense for appeals as of right.”); In 

re Chad S., 580 P.2d at 985 (“[T]he full panoply of procedural safeguards 

must be applied to child deprivation hearings. This includes the right to 

counsel[.]” (footnote omitted)); In re Myricks, 533 P.2d at 842 (“The 

nature of the rights in question [in a child deprivation proceeding] and 

the relative powers of the antagonists, necessitate the appointment of 

counsel”).

By contrast, the North Carolina judgment reviewed in Lassiter had 

concluded the opposite—that appointment of counsel was not required 

by the Due Process Clause. See Lassiter, 452 U.S. at 30–31. Indeed, 

Lassiter notes that on the record before it, the North Carolina decision 

was the only “presently authoritative case” to conclude “that an 

indigent parent has no due process right to appointed counsel in 

termination proceedings.” Lassiter, 452 U.S. at 30–31. 

Against this landscape, Lassiter affirmed. In so doing, it overruled 

the nearly uniform consensus of cases reaching the opposite conclusion. 

See id. at 31–34. The court held not only that there is a presumption 

against the right to appointed counsel—even in parental termination 

cases— but also that this presumption had not been satisfied in the case 

before it. Id.

The majority’s approach in this case cannot be reconciled with the 

Lassiter opinion as a whole. On one hand, the majority claims fidelity to 

the presumption stated repeatedly in Lassiter. Supra ¶ 22. On the other 

hand, it also asserts (incorrectly, by taking a quote from Lassiter out of 

context) that the presumption “has ‘generally’ been overcome in the 

parental-rights termination context.” Supra ¶ 36. The court cannot have 

it both ways. Either Lassiter states a presumption against appointment 

of counsel or it doesn’t. In my view, the entirety of the Lassiter opinion 

speaks unmistakably of a presumption. I see no way to read the citation 

to pre-Lassiter cases as obviating everything else in the court’s 

articulation and application of the law.

(cont.)
Cite as: 2016 UT 55

LEE, J., dissenting

33

exception to this general rule. It held that the factors in Mathews v. 

Eldridge, 424 U.S. 319 (1976)—“the private interests at stake, the 

government’s interest, and the risk that the procedures used will lead 

to erroneous decisions”—may weigh “against the presumption that 

there is a right to appointed counsel only where the indigent, if he is 

unsuccessful, may lose his personal freedom.” Lassiter, 452 U.S. at 27.

¶ 64 The Lassiter opinion assessed the relevant Eldridge factors as 

follows: “[T]he parent’s interest is an extremely important one (and 

may be supplemented by the dangers of criminal liability inherent in 

some termination proceedings); the State shares with the parent an 

interest in a correct decision, has a relatively weak pecuniary interest, 

and, in some but not all cases, has a possibly stronger interest in 

informal procedures; and the complexity of the proceeding and the 

incapacity of the uncounseled parent could be, but would not always 

be, great enough to make the risk of an erroneous deprivation of the 

parent’s rights insupportably high.” Id. at 31. Lassiter then set forth the 

following standard for rebuttal of the above-stated presumption:

If, in a given case, the parent’s interests were at their 

strongest, the State’s interests were at their weakest, 

and the risks of error were at their peak, it could not be 

said that the Eldridge factors did not overcome the 

presumption against the right to appointed counsel, 

and that due process did not therefore require the 

appointment of counsel. But since the Eldridge factors 

will not always be so distributed, and since “due 

process is not so rigid as to require that the significant 

interests in informality, flexibility and economy must 

always be sacrificed,” neither can we say that the 

Constitution requires the appointment of counsel in 

every parental termination proceeding. We therefore 

adopt the standard found appropriate in Gagnon v. 

Scarpelli, and leave the decision whether due process 

calls for the appointment of counsel for indigent 

parents in termination proceedings to be answered in 

the first instance by the trial court, subject, of course, to 

appellate review.

Id. at 31–32 (citations omitted). 

 
In re K.A.S.

LEE, J., dissenting

34

¶ 65 The Lassiter court applied this standard in a case involving an 

incarcerated parent whose rights were severed on the basis of her 

failure to “maintain concern or responsibility for the welfare” of her 

child, and the determination that termination was in the “best interests

of the minor.” Id. at 24. In rejecting Ms. Lassiter’s asserted right to 

appointment of counsel, the court focused on the nature of the issues in 

the case and the perceived need for counsel to address them. It noted 

that there were “no allegations of neglect or abuse upon which criminal 

charges could be based,” id. at 32; it observed that “no expert witnesses 

testified and the case presented no specially troublesome points of law, 

either procedural or substantive,” id.; and it concluded that “the weight 

of the evidence” was “sufficiently great that the presence of counsel for 

Ms. Lassiter could not have made a determinative difference” in the 

case, id. at 32–33. 

¶ 66 I view the Lassiter opinion as highlighting the importance of 

the third Eldridge factor—the “risk that the procedures used will lead to 

erroneous decisions.” Id. at 27. It does so in several ways. First is the 

court’s reiteration of the presumption against the appointment of 

counsel (in a case in which incarceration is not a risk). The presumption 

is a core premise of the court’s opinion. See id. at 26–27 (“[T]he 

presumption [is] that an indigent litigant has a right to appointed 

counsel only when, if he loses, he may be deprived of his physical 

liberty. It is against this presumption that all the other elements in the 

due process decision must be measured.”); id. at 27 (the court “must 

balance [the Eldridge] elements against each other, and then set their net 

weight in the scales against the presumption that there is a right to 

appointed counsel only where the indigent, if he is unsuccessful, may

lose his personal freedom”); id. at 31 (“[t]he dispositive question . . . is 

whether the three Eldridge factors, when weighed against the 

presumption that there is no right to appointed counsel in the absence 

of at least a potential deprivation of physical liberty, suffice to rebut 

that presumption . . . .”). And the presumption must be understood in 

light of the nature of the three factors from Eldridge: For the most part, 

the private interests and the State’s interests are static, so the factor that 

varies most from case to case is the third—the risk of error in a 

proceeding in which the parent proceeds without appointed counsel.

¶ 67 The court’s opinion underscores that point in the way it 

describes the three Eldridge factors. The discussion of the first two 

factors is relatively short and straightforward. And the court’s 

description of these factors is mostly static. The court speaks in terms of 

the State’s interests as they will stand in most all cases—in assuring the 
Cite as: 2016 UT 55

LEE, J., dissenting

35

“welfare of the child,” in securing “an accurate and just decision,” and 

in seeing that the “termination decision [is] made as economically as 

possible.” Id. at 27–28. The description of the “private” interests of the 

indigent parent is similarly static. Of that factor, the court highlights the 

“commanding” nature of the “parent’s interest in the accuracy and 

justice of the decision to terminate his or her parental status,” noting 

that this interest may be enhanced in a case involving a risk of criminal 

jeopardy. Id. at 27.

¶ 68 The court’s discussion of the third factor—the risk of error—is 

different. Here the analysis is decidedly dynamic and clearly casedependent. The court observes (citing the State’s arguments) that the 

“subject of a termination hearing”—“the parent’s relationship with her 

child”—may be “one as to which the parent must be uniquely well 

informed and to which the parent must have given prolonged 

thought.” Id. at 29. It also states (again citing the State’s arguments) that 

some termination proceedings are “not likely to produce difficult 

points of evidentiary law, or even of substantive law, since the 

evidentiary problems peculiar to criminal trials are not present and 

since the standards for termination are not complicated.” Id. On the 

other hand, the court notes that “the ultimate issues with which a 

termination hearing deals are not always simple,” offering the example 

of a case in which “[e]xpert medical and psychiatric testimony, which 

few parents are equipped to understand and fewer still to confute, is 

sometimes presented.” Id. at 30. 

¶ 69 Finally, the court’s application of these standards to the 

relevant facts in Lassiter underscores the crucial role of the third factor. 

In concluding that Ms. Lassiter was not entitled to appointed counsel, 

the Lassiter court cites circumstances rooted extensively in the risk of 

error analysis—the lack of expert testimony or “troublesome points of 

law, either procedural or substantive,” and the notion that the evidence 

was sufficiently strong that a lawyer would not likely have made a 

difference. See id. at 32–33.

¶ 70 For these reasons it seems to me that the Lassiter standard is 

highly dependent on the third Eldridge factor.10 Fidelity to the Lassiter

 

10 The point is not to diminish the relevance of “the other two 

factors” set forth in Lassiter. Supra ¶ 24 n.6. I agree with the majority 

that these factors also “play a role.” Supra ¶ 24 n.6. But the point is that 

the first two factors are mostly static, and it is principally the third 

factor that will vary from case to case. So if we are to stay true to the 

(cont.)
In re K.A.S.

LEE, J., dissenting

36

presumption, and to the above-stated standards, requires us to find a 

due process right to counsel only in the unusual parental-rights 

termination case—only in the case (unlike Lassiter or this case) in which 

there are complex legal or evidentiary questions requiring an unusual 

degree of legal expertise.11 The calculus may change where there is a 

risk of criminal jeopardy that supplements the parent’s interest; but no 

such risk is present here.12

 

Lassiter notion of a presumption against appointment of counsel—

denying counsel except in the exceptional case—our analysis must 

depend most significantly on this last factor.

11 This is the way that Lassiter has been understood in other 

jurisdictions. See In re N.A., 193 P.3d 1228, 1257 (Haw. Ct. App. 2008) 

(explaining that “[b]ecause the private interests of the parents and the 

competing interests of the government are evenly balanced, the court’s 

determination invariably hinges on the third factor”), abrogated by In re 

T.M., 319 P.3d 338, 355 (ruling that indigent parents are guaranteed 

appointed counsel under the Hawaii Constitution); In re Parental Rights 

as to N.D.O., 115 P.3d 223, 226 (Nev. 2005) (“We expect that both the 

parent’s interests and the State’s interests will almost invariably be 

strong in termination proceedings.”); State ex rel. Juvenile Dep’t 

Multnomah Cty. v. Grannis, 680 P.2d 660, 664 (Or. Ct. App. 1984) (noting 

that under Lassiter, “the nature of the parental interest and of the

governmental interest are relatively constant and, generally, the only 

variable for the court to consider in deciding whether to appoint 

counsel is the extent of the ‘risk that the procedures used will lead to 

erroneous decisions’”); S.C. Dep’t of Soc. Servs. v. Vanderhorst, 340 S.E.2d 

149, 152–53 (S.C. 1986) (applying Lassiter but only analyzing the “risk of 

error” prong); State ex rel. T.H. v. Min, 802 S.W.2d 625, 626–27 (Tenn. Ct. 

App. 1990) (holding that the interests of parents and the state in a 

termination-of-parental-rights proceeding are “evenly balanced” and 

that the risk-of-error prong was thus the “main consideration”); but see 

340 S.E.2d at 153 (“[W]e caution that under our interpretation of Lassiter

cases in which appointment of counsel is not required should be the 

exception.”).

12 Under Lassiter, this concern is implicated where the risk of 

criminal jeopardy is “inherent” in the proceedings. See Lassiter, 452 U.S. 

at 31. That is not at all the case here. At most there is a speculative risk 

associated with vague charges of neglect, emotional abuse, and failure 

to pay child support. Even the majority concedes that that is 

(cont.)
Cite as: 2016 UT 55

LEE, J., dissenting

37

¶ 71 I would affirm because I find no such a basis for appointment 

of counsel here. From all that appears from the record, this is a gardenvariety parental termination case in which the key issue concerns the 

“the parent’s relationship with her child”13—a matter on which the 

parent is “uniquely well informed and to which the parent must have 

given prolonged thought.” Id. at 29. L.E.S. has identified no 

“troublesome points of law,” no difficult evidentiary issues, and no 

expert testimony that he was required to address. Nor has he identified 

any evidence he would have presented—or opposing evidence he would 

have rebutted more effectively—if he had been appointed a lawyer. 

And these failures are fatal.14 Absent any arguments along these lines, I 

see no basis for a rebuttal of the presumption in Lassiter. 

 

insufficient. See supra ¶ 26 n.8 (speculating that “there might . . . be 

some danger of criminal liability based on allegations in the petition to 

terminate L.E.S.’s rights,” but conceding that it is “not clear” that any 

such danger is implicated here).

13 In this case, as in Lassiter, the basis for termination was a 

straightforward one—the assertion that the parent made “less than 

token efforts” to communicate with the child. And that is one of those 

grounds on which parents are “uniquely well informed.” Lassiter, 452 

U.S. at 29–30. That will not always be the case. Our code identifies more 

legally complicated grounds. See UTAH CODE § 78A-6-507 (setting forth 

grounds for termination, including factually and legally complex 

grounds such as “the parent is unfit or incompetent”).

14 A principal basis for the termination of L.E.S.’s rights was parallel 

to the basis in Lassiter—the failure to communicate with the child for a 

significant period of time. Here there was undisputed evidence on that 

point. And as in Lassiter, the “weight of the evidence” on this point 

“was sufficiently great that the presence of counsel . . . could not have 

made a determinative difference.” See Lassiter, 452 U.S. at 32–33. At 

least L.E.S. has made no effort to show that it would have made a 

difference. And that is fatal under Lassiter.

It is not enough to say that L.E.S., unlike the parent in Lassiter, “has 

clearly shown interest in his child.” Supra ¶ 35 n.10. Showing an 

interest is insufficient under Utah law. To satisfy Utah law, L.E.S. was 

required to “communicate” with his child. See UTAH CODE § 78A-6-

507(1)(f)(i). The undisputed evidence at trial showed that L.E.S. had 

failed to fulfill this requirement. And no evidence presented on appeal 

suggests that “the presence of counsel . . . could . . . have made a 

(cont.)
In re K.A.S.

LEE, J., dissenting

38

¶ 72 The majority opinion acknowledges the Lassiter presumption. 

Supra ¶ 22. And it cites no significant legal or evidentiary complexities 

of this case—no expert testimony at issue and no difficult question of 

legal analysis—that heightened the risk of error. Indeed the court 

concedes that there was “no expert medical or psychiatric testimony or 

other similarly complicated evidence [] brought before the court” and 

acknowledges “the apparent simplicity of the record.” Supra ¶ 34. Yet 

the court nonetheless speculates that “it is possible” that such 

complications could be introduced into the case—that if L.E.S. had 

“been represented by counsel, such [expert] testimony may have been 

brought” and the “simple and uncomplicated” case presented could 

well have been less so. Supra ¶ 34. Thus, the court says that “the 

apparent simplicity of the record may be due to the fact that L.E.S. 

represented himself pro se and had no opportunity to present more 

complicated evidence and argument with the aid of counsel.” Supra

¶34. On that basis, the majority “conclude[s] that the risks of error in 

this case were significant,” and sufficient to rebut the presumption 

against appointment of counsel. Supra ¶ 34.

¶ 73 This analysis is unfaithful to Lassiter. By engaging a 

counterfactual hypothetical instead of analysis of the actual case 

presented, the court effectively inverts the Lassiter presumption. If the 

hypothetical possibility that a lawyer could transform a straightforward 

case into a complicated one is enough, then most any indigent parent 

will be entitled to counsel. That can most always be said.15 In future 

 

determinative difference” on this issue. L.E.S. has not identified 

evidence that he communicated with his child that was not presented 

due to missteps of counsel. That is fatal regardless of L.E.S.’s supposed 

“interest” in his child. 

15 The court claims to identify two unique features of this case that 

contribute to the perceived risk of error—the fact that L.E.S. was 

temporarily given counsel before he lost it and the fact that L.E.S. was 

incarcerated. Supra ¶¶ 31–32. But neither of these considerations 

meaningfully affects the complexity of the proceeding or the risk of 

error. Nothing in the record—or even in simple logic—supports the 

notion that having a lawyer for a brief period of time would make 

things worse than never having one at all. And the fact of incarceration 

clearly cannot be enough. Ms. Lassiter was incarcerated, but the court 

nonetheless concluded that there was an insufficient risk of error to 

justify appointment of counsel. Lassiter, 452 U.S at 20. And so this fact 

cannot in and of itself be determinative—unless we mean to flip the 

(cont.)
Cite as: 2016 UT 55

LEE, J., dissenting

39

cases, a Utah parent seeking appointed counsel will not bear the 

burden set forth in Lassiter; he need only cite paragraph 33 of today’s 

opinion—noting the hypothetical possibility that a lawyer could turn a 

“simple and uncomplicated” case into a complex one, and concluding 

that that renders the risk of error “significant” enough to justify 

counsel’s appointment.16 And if that is enough—as it apparently is 

under today’s majority opinion—then we have flipped the Lassiter

presumption.17

 

presumption set forth in Lassiter (a move we lack the authority to 

make).

16 In the usual case the argument will be even easier than it is here. 

At the outset of a proceeding the exact contours of a case will be 

unknown. And at that stage the savvy parent will always be able to 

assert a potential for complexity (and thus for a risk of error). 

17 I agree with the majority that the task before us is to “faithfully 

apply Lassiter to the facts of each case,” not to make an “empirical” 

prediction as to the “pattern of outcomes” in the run of the cases. Supra

¶ 36. And contrary to the majority’s characterization, my analysis 

makes no empirical claim that a proper application of the presumption 

in Lassiter will result in appointment of counsel only rarely. My point is 

not to object to any “outcomes” that may follow from our decision in 

this case. It is to observe that if the majority’s framework will require 

the appointment of counsel in even the most simple, straightforward 

case, then we have reason to question the fidelity of that framework to 

the standard set forth in Lassiter.

This case is a simple and straightforward one. The court’s authority 

to terminate L.E.S.’s rights turned on whether he made “only token 

efforts . . . to support or communicate with the child.” UTAH CODE

§ 78A-6-507(1)(f)(i). It is difficult to envision a legal issue in the 

termination of parental rights context that could be more 

straightforward and accessible than this one. It is equally difficult to 

identify a subject matter over which a parent would have greater 

knowledge. If, as the majority holds, the Lassiter presumption is 

overcome in this case, it is hard to conceive of a parental-termination 

case in which the presumption would not be overcome. And if 

appointed counsel is effectively required in every parental-termination 

case under the majority’s framework, then we have circumvented the 

Lassiter presumption while still paying homage to it. The predicted 

“pattern of outcomes,” in other words, is troubling not because the 

(cont.)
In re K.A.S.

LEE, J., dissenting

40

¶ 74 Fidelity to Lassiter demands that we affirm the district court’s 

decision not to appoint counsel for L.E.S. The majority’s analysis of the 

significance of the parent’s interest in maintaining a relationship with 

his child, supra ¶¶ 25–26, and the State’s interests (a weak pecuniary 

interest in opposing appointment, and a shared interest in protecting 

the child and assuring a just outcome), supra ¶¶ 27–28, is insufficient. 

These points are broadly applicable premises that will hold in most any 

case. And such considerations cannot suffice to rebut the Lassiter

presumption unless we are effectively inverting it. 

 

outcomes are objectionable, but because the revealed pattern suggests 

that we have not in fact “faithfully appl[ied] Lassiter.” Supra ¶ 36. 

Perhaps there is circular comfort in insisting that “whatever pattern of 

outcomes emerges . . . is the pattern of outcomes required by the law.” 

Supra ¶ 36. But Lassiter prescribes a presumption against the 

appointment of counsel in parental termination cases. So if the 

majority’s approach demands appointment in the run of the mill case, 

we have reason to question the compatibility of that approach with “the 

law” as stated in Lassiter.

The majority insists that “even if” appointment of counsel will be 

required in many cases, such a result stems not from our application of 

the Lassiter test but “from the existence of a statutory right to counsel 

under Utah Code section 78A-6-1111(1)(c).” Supra ¶ 38 n.11. But the 

statutory right to counsel in state-initiated proceedings tells us nothing 

about the existence of a constitutional right to counsel in privately filed 

cases. The majority’s contrary conclusion confuses the due process 

inquiry by importing elements of L.E.S.’s equal protection claim—

which the court purports to avoid. See supra ¶ 22 n.4. L.E.S.’s due 

process right to counsel under Lassiter is not at all affected by the 

legislature’s decision to afford counsel in state-initiated cases. And 

regardless of whether the case was filed by the state or by a private 

party, the question is whether the Lassiter factors weigh in favor of a 

right to appointed counsel. In any event, when determining whether a 

constitutional right to counsel exists, I see no reason to conclude that 

the Lassiter test would result in the denial of counsel in a large number 

of state-initiated cases, as the majority suggests. Supra ¶ 38 n.11. In 

those cases, as with privately initiated cases, the key question would be 

the complexity and difficulty of the case. And counsel would be 

required as a matter of due process only in cases in which counsel is 

necessary to avoid a substantial risk of error.
Cite as: 2016 UT 55

LEE, J., dissenting

41

¶ 75 The court claims to find two unique features of this case in its 

analysis of the “private interest” and “government interest” factors. On 

the former the majority speculates that there may be “some concern 

regarding the risk of self-incrimination in this case” given that “the 

district court found that L.E.S. should have taken K.A.S.’s mother to 

court for refusing to facilitate visits but that he did not do so because

‘he was afraid because he was on drugs,’” and “the district court also 

noted that L.E.S.’s ‘extensive substance abuse is terms of neglect.” Supra

¶ 26. But this is a concern of the court’s own imagining. L.E.S. failed to 

raise it in his briefs on this appeal, and the adoptive parents have 

therefore not been heard on the matter. And in any event a vague 

allusion to past drug use does not prove that there was a tangible risk 

of self-incrimination. I would not so conclude here—certainly not 

without adversary briefing on the matter.

¶ 76 As to the second Eldridge factor, the court asserts that “the 

State’s interest in terminating L.E.S.’s parental rights was . . . less urgent 

in this case than it was in Lassiter[] because this parental-rights 

termination proceeding was initiated and advanced by a private party 

rather than by the State.” Supra ¶ 28. But I do not see how that follows. 

Any and all termination proceedings implicate the State’s power and 

the State’s interest in protecting the safety and welfare of the child. See 

supra ¶ 28 (acknowledging that “the State is necessarily involved in the 

termination of parental rights since only the State can terminate a 

parent’s rights to his or her child”). I see nothing in the record or in our 

law to support the court’s premise that the State’s interest is diminished 

in a case initiated by a private party. Certainly the interests of the child 

are the same regardless of who initiates the case. And the parent’s 

interests are likewise unaltered. Where our law authorizes private

parties to sue to initiate a parental-rights termination case, we should 

presume that such a case is advancing governmental policy. 

¶ 77 Finally, on the third factor, the court claims that the risk of 

error is more significant in a proceeding initiated by a private party 

because “L.E.S. has not enjoyed the additional protections provided in 

state-initiated termination cases.” Supra ¶ 31. But this is the wrong 

baseline. Under Lassiter the question is not whether we can identify 

other cases in which the risk of error is diminished (due to “additional 

protections” afforded by statute or otherwise). It is whether the risk of 

error is unreasonably “significant” as that inquiry is framed in the 

Lassiter opinion.

¶ 78 The Lassiter court framed the inquiry by reference to North 

Carolina procedures available to the parent in that case. Lassiter, 452 
In re K.A.S.

LEE, J., dissenting

42

U.S. at 28–29 (describing the procedures North Carolina established to 

“assure accurate decisions” in termination proceedings). And it found 

the risk of error insufficient to sustain the conclusion that counsel was 

necessary as a matter of due process. Id. at 32–33. That should be 

dispositive here. L.E.S. faced no greater risk than that faced by the 

parent in Lassiter. The Utah procedures afforded to L.E.S. are parallel to 

those available under North Carolina law in Lassiter. Compare Lassiter, 

452 U.S at 28–29, with UTAH CODE §§ 78A-6-503 to -507. And, as stated 

above, L.E.S. has identified no “troublesome points of law,” no difficult 

evidentiary issues, and no expert testimony that he was required to 

address. 

¶ 79 For these reasons I view the Lassiter presumption as 

controlling here. I see no basis for a rebuttal of that presumption in this 

case. And I dissent from the majority’s contrary conclusion, which 

seems to me to invert the presumption announced by the court.

B

¶ 80 The controlling due process framework under the Utah 

Constitution has not been established in our caselaw.18 To resolve 

L.E.S.’s state constitutional claim, I would accordingly begin with first 

principles—with the text of the Utah Due Process Clause, and with the 

meaning of those terms at the time of the framing of our Utah 

Constitution.19 I would examine the “plain meaning” of the text of the 

Utah Constitution in light of “historic experience” and the 

 

18 In our past cases, we have adverted to claims under the Due 

Process Clause of the Utah Constitution. See In re Adoption of J.S., 2014 

UT 51, ¶ 42, 358 P.3d 1009, cert. denied sub nom. Bolden v. Doe, 136 S. Ct. 

31 (2015); State v. Munguia, 2011 UT 5, ¶¶ 15–18, 253 P.3d 1082; Wells v. 

Children’s Aid Soc’y of Utah, 681 P.2d 199, 204 (Utah 1984); Untermyer v. 

State Tax Comm’n, 129 P.2d 881, 885 (Utah 1942). But there is no 

established standard for state due process that differs from the 

standard(s) articulated by the U.S. Supreme Court under the United 

States Constitution. See In re Adoption of J.S., 2014 UT ¶ 57 (repudiating 

the formerly heightened state due process standard articulated in Wells, 

681 P.2d 199). I would address the state due process question here 

because I conclude that L.E.S.’s federal claim falls short.

19 State v. Houston, 2015 UT 40, ¶¶ 148–57, 353 P.3d 55 (Lee, A.C.J., 

concurring) (making the case for originalist interpretation of the Utah 

Constitution and rebutting critiques of this methodology).
Cite as: 2016 UT 55

LEE, J., dissenting

43

“presuppositions of those who employed them,” keeping in mind 

“Utah’s particular traditions at the time of drafting.” American Bush v. 

City of S. Salt Lake, 2006 UT 40, ¶¶ 10, 12 140 P.3d 1235. 

¶ 81 L.E.S. purports to advance an originalist basis for his state due 

process claim. He cites late nineteenth-century history in support of the 

notion that our Utah founders valued parenthood and family unity 

highly, so much so that they embraced a religious belief that family 

bonds continue beyond this world. L.E.S. notes, in particular, the 

history of anti-polygamy raids in Utah, emphasizing the length to 

which our Utah founders went to protect their legal relationships with 

their children, and positing that they would have found parental-rights 

termination proceedings problematic. From that premise, L.E.S. posits 

that the framers of the Utah Constitution would have been in favor of 

appointment of counsel in a parental-rights termination proceeding. 

And he urges us to read one into the Utah Due Process Clause on this 

basis.

¶ 82 The cited history is interesting. And a party should always be 

commended for seeking to tie his constitutional analysis to the original 

meaning of the text.20 Here, however, L.E.S.’s history falls short because 

 

20 Too often the briefing on a novel question of constitutional law 

takes the form of a pure policy argument. A typical argument on an 

issue of state constitutional law would take the following form: (a) the 

Utah Supreme Court is not bound to follow the U.S. Supreme Court’s 

construction of similar or analogous provisions of the United States 

Constitution in our interpretation of the Utah Constitution, (b) federal 

precedent is inadequate because it fails to advance some particular 

policy concern of importance to the claimant, and (c) therefore, this court 

should embrace an expansionist view of state constitutional law that 

advances the claimant’s policy concern. A few of our precedents even 

seem to encourage this type of analysis. See, e.g., Soc’y of Separationists, 

Inc. v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993) (“We have 

encouraged parties briefing state constitutional issues to use historical 

and textual evidence, sister state law, and policy arguments in the form of 

economic and sociological materials to assist us in arriving at a proper 

interpretation of the provision in question.” (emphasis added)). But the 

conclusion can hardly follow from the premise. In interpreting the 

constitution, we must be interpreting the constitution—and not just 

vindicating policy concerns that we deem important. Houston, 2015 UT

¶¶ 154–57 (Lee, A.C.J., concurring) (noting that the court must construe 

constitutional terms “as originally understood” and that “[a] 

(cont.)
In re K.A.S.

LEE, J., dissenting

44

it is at far too high a level of generality. L.E.S. hasn’t presented anything 

of relevance to the founding-era meaning of “due process.” He has 

simply asserted that families were important to the generation that 

framed the Utah Constitution. That is undoubtedly true. But it tells us 

little or nothing about how far they were inclined to go in protecting 

families ties, and even less about whether they thought their 

inclinations were enshrined in the constitutional guarantee of “due 

process.”

¶ 83 To answer that question, we must look to the historical 

understanding of the principle of due process. And we must ask 

whether that principle encompasses a right to a lawyer appointed and 

paid for by the State. The answer to that question is no. I would reject 

L.E.S.’s state constitutional claim because it finds no support in the 

1890s-era understanding of “due process” and because it is 

undermined by the proceedings of the Utah constitutional convention.

1

¶ 84 Historically, the guarantee of “due process of law” was 

understood as a legal term of art encompassing long-established 

principles associated with “the law of the land.” EDWARD COKE, THE 

SECOND PART OF THE INSTITUTIONS OF THE LAWS OF ENGLAND 46, 50 (3d 

ed. 1669). This is the understanding of “due process” that prevailed in 

the U.S. Supreme Court throughout the nineteenth century. A classic 

statement is set forth in Murray v. Hoboken Land & Imp. Co., 59 U.S. 272 

(1855): “The words, ‘due process of law,’ were undoubtedly intended to 

convey the same meaning as the words, ‘by the law of the land,’ in 

Magna Charta.” Id. at 276 (citation omitted).21

¶ 85 The “law of the land” was widely understood to encompass 

three basic guarantees: “(1) it rendered the King’s power subject to 

‘law’; (2) it guaranteed the barons a right to participate in decisions 

 

constitution rooted in ‘evolving standards’ arising out of a judge’s 

‘humanitarian instincts’ is no constitution at all”). To do so we must 

examine the text of the operative document and begin with its original 

meaning.

21 See William D. Guthric, Constitutionality of the Sherman Anti-Trust 

Act of 1890, 11 HARV. L. REV. 80, 84 (1897) (noting that the “historic 

term, ‘due process of law,’ or its equivalent, ‘the law of the land,’” has 

shielded people from oppression and embodied “the foremost of our 

liberties” for centuries). 
Cite as: 2016 UT 55

LEE, J., dissenting

45

which affected them; and (3) it assured equal treatment” under law.22

Thus, the guarantee of “due process” served as “a restraint on the 

legislative as well as on the executive and judicial powers of the 

government.” Murray, 59 U.S. at 276. But the restraint on legislative 

power operated to prevent rather than require deviations from 

traditional notions of due process. 

¶ 86 In Murray, the United States Supreme Court laid out a 

historical test for determining whether a certain procedure satisfied 

“due process of law.” Id. at 277. First, the court should “examine the 

constitution itself” and see if the procedure directly conflicts with any 

of its provisions. Id. If not, the court should then “look to those settled 

usages and modes of proceeding existing in the common and statute 

law of England” as well as “the legislation of the colonies and 

provinces, and more especially of the States.” Id. at 277–78. If a 

procedure was consistent with the practice of the common law and 

with “the laws of many of the [s]tates at the time of the adoption of this 

amendment” then it “cannot be denied to be due process of law.” Id. at 

280.

¶ 87 In later cases, the United States Supreme Court elaborated 

upon this test. It explained that while a historical pedigree was 

sufficient condition for the “due process of law,” the Constitution did 

not forbid innovative procedures that were not rooted in the common 

law tradition. The court noted that that would “deny every quality of 

the law but its age, and . . . render it incapable of progress or 

improvement.” Hurtado v. California, 110 U.S. 516, 529 (1884). Yet the 

court continued to reiterate that a practice rooted in historical tradition 

would survive due process scrutiny. It held that “any legal proceeding 

enforced by public authority . . . which regards and preserves these 

principles of liberty and justice, must be held to be due process of law.” 

Id. at 537. And it noted that the Due Process Clause thus “refers to 

certain fundamental rights which [our] system of jurisprudence . . . has 

always recognized.” Id. at 536 (citing Brown v. Bd. of Levee Comm’rs, 50 

Miss. 468, 480 (1874) (emphasizing the requirements of jurisdiction, 

notice, and process as integral to due process of law)).

¶ 88 The United States Supreme Court identified certain 

“principles of liberty and justice” that are integral to due process and 

are generally guaranteed as tenets of due process: “regular allegations, 

 

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

(footnotes omitted).
In re K.A.S.

LEE, J., dissenting

46

opportunity to answer, and a trial according to some settled course of 

judicial proceedings.” Murray, 59 U.S. at 280; see also Wilkinson v. Leland, 

27 U.S. 627, 657 (1829) (forbidding the exercise of eminent domain 

power “without trial, without notice, and without offence”). With the 

exception of certain summary procedures where these demands may 

not apply, such guarantees form the core protections of the Due Process 

Clause. See Murray, 59 U.S. at 280. 

¶ 89 State due process provisions were interpreted in a similar 

fashion. In decisions throughout the eighteenth and nineteenth 

centuries, state supreme courts interpreted their state due process 

clauses to preserve a similar set of principles. The Tennessee Supreme 

Court, for example, interpreted that state’s due process provision as a 

guarantee that all laws were “equally binding upon every member of 

the community,” and not just available to certain favored groups. 

Sheppard v. Johnson, 21 Tenn. 285, 296 (1841); see also State v. Stimpson, 62 

A. 14, 18 (Vt. 1905); Eden v. People, 43 N.E. 1108, 1109 (Ill. 1896). Other 

state supreme courts likewise embraced such a “law of the land” notion 

of due process.23 In other states, the courts extended the due process 

principle to protect against the infringement of certain fundamental 

tenets of due process, such as the right to a trial, Zylstra v. Corp. of 

Charleston, I S.C.L. (I Bay) 382 (1794), and a nonarbitrary procedure of 

 

23 See Wynehamer v. People, 13 N.Y. 378, 426 (1856) (characterizing the 

guarantee of due process as “law in its regular administration through 

courts of justice” (citation omitted)); Harbison v. Knoxville Iron Co., 53 

S.W. 955, 957 (Tenn. 1899) (“What, then, is ‘due process of law,’ or ‘the 

law of the land’? The two phrases have exactly the same import, and 

that which is entitled to recognition as the one is to be recognized as the 

other also.”), aff’d, 183 U.S. 13 (1901); Rowan v. State, 30 Wis. 129, 148 

(1872) (“due process” and “law of the land” mean the same thing). This 

was also the understanding of “due process” that prevailed at the time 

of the ratification of the Fourteenth Amendment. See Cong. Globe, 37th 

Cong., 2d. Sess. 345–49 (1862) (statement of Rep. Bingham, a sponsor of 

the amendment) (pointing to existing caselaw on the subject and 

explaining that due process of law was a synonym for the phrase “law

of the land”); see also Akhil Reed Amar, The Bill of Rights and the 

Fourteenth Amendment, 101 YALE L.J. 1193, 1225 (1992) (discussing 

Bingham’s remarks and the prevailing understanding of the phrase 

“due process” at the time of the ratification of the Fourteenth 

Amendment).
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LEE, J., dissenting

47

adjudication under their state due process clauses, Vanzant v. Waddel, 

10 Tenn. (2 Yer.) 260 (1829). 

¶ 90 Thus, the prevailing understanding of the Due Process Clause

through the eighteenth and nineteenth centuries can generally be 

summarized as follows: Procedures which were consistent with the 

common law and historical tradition were presumptively permissible, 

while new procedures were permissible so long as they did not deny 

one of the core protections of due process, such as a right to notice and 

a meaningful opportunity to be heard.24

2

¶ 91 The historical understanding of “due process”—the view that 

prevailed at the time of the framing of the Utah Constitution—cannot 

be deemed to encompass a right to a lawyer paid for by the 

government. Nor can this principle be understood to yield to courts the 

power to prescribe evolving standards of constitutional “fairness” 

based on an assessment of the costs and benefits of innovations in 

procedure. 

¶ 92 We possess the power to assure fair procedure—and to do so 

by weighing costs and benefits. “But our usual course for so doing is by 

promulgating rules of procedure.” In re Steffensen, 2016 UT 18, ¶ 7, 373 

P.3d 186. Thus, the Due Process Clause does not impose upon us “a 

duty to establish ideal systems for the administration of justice, with 

every modern improvement and with provision against every possible 

hardship that may befall.” Id. ¶ 7 n.2 (quoting Ownbey v. Morgan, 256 

U.S. 94, 110–11 (1921)). “[T]he Due Process Clause is not a freewheeling constitutional license for courts to assure fairness on a caseby-case basis.” Id. ¶ 7. It is a historically driven test “measured by 

reference to ‘traditional notions of fair play and substantial justice’” Id. 

(citing ClearOne v. Revolabs, 2016 UT 16, ¶ 8, 369 P.3d 1269).

¶ 93 I would interpret the Utah Due Process Clause in accordance 

with the historical understanding set forth above. And I would 

accordingly reject L.E.S.’s claim to a constitutional right to appointed 

counsel.

¶ 94 L.E.S. has identified no historical basis for a due process right 

to a lawyer paid for by the state. The procedures afforded him accord 

with historical due process: He was given notice and a meaningful 

 

24 See generally Andrew T. Hyman, The Little Word “Due”, 38 AKRON 

L. REV. 1 (2005).
In re K.A.S.

LEE, J., dissenting

48

opportunity to be heard, and the procedures available to him were in 

line with those secured historically. Because L.E.S. is seeking a novel 

advancement in procedure, his recourse is elsewhere—in a proposal for 

legislative reform, for example—and not in a state constitutional claim.

¶ 95 I am aware of no historical evidence supporting the right to 

paid counsel. At the time of our Utah founding, a number of states had 

begun to provide for appointment of counsel in criminal cases.25 But 

none extended this right beyond the criminal context.26 And in the 

criminal realm, the right secured by the states was a legislative 

innovation, not a judicial one. And no one thought that such a right 

was inherent in the constitutional guarantee of due process.27 

¶ 96 This held in Utah around the time of our founding. Our 1898 

code provided for appointed counsel for indigent defendants in 

criminal cases, see UTAH REVISED STATUTORY CODE OF 1898, § 4767, but 

nowhere in our law was there a right to appointed counsel in a civil 

setting. And of course there was no indication in the early years of our 

state that anyone thought that “due process” guaranteed a lawyer paid 

for by the state (in a criminal case or otherwise).

¶ 97 The debates in our Utah constitutional convention support 

this conclusion. A relevant part of the debate took place on March 23, 

1898. On that date, the question arose as to whether the article 1 section 

12 right not to be “compelled to advance money or fees to secure the 

rights herein guaranteed” also guaranteed a right to paid counsel. 1 

 

25 See Betts v. Brady, 316 U.S. 455, 470 n.26 (1942) (citing state statutes 

of twelve states providing for appointed counsel for capital cases or 

cases of felony or other grave crime in the 1800s).

26 See generally John MacArthur Maguire, Poverty and Civil Litigation, 

36 HARV. L. REV. 361, 388 (1923) (noting that as of the 1920s only a 

dozen states “g[a]ve their courts power to assign lawyers to needy 

suitors” and twenty states had no in forma pauperis provisions for the 

poor at all). And in those states that had provisions for the appointment 

of an attorney for indigent parties in civil suits, payment frequently was 

not guaranteed. See Bd. of Comm’rs of Howard Cty. v. Pollard, 55 N.E. 87, 

87 (Ind. 1899). So those appointed could refuse by arguing that such an 

appointment would be an unconstitutional commandeering of services. 

See Blythe v. State, 4 Ind. 525, 525 (1853).

27 See Betts, 316 U.S. at 470–71 (observing that “the matter has 

generally been deemed one of legislative policy”).
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LEE, J., dissenting

49

PROCEEDINGS IN THE CONSTITUTIONAL CONVENTION OF 1898, at 308 

(proceeding of March 23, 1898). Mr. Eldredge asked Mr. Evans (of 

Weber) what would happen to the “the poor fellow that has no 

money.” Id. Evans responded that “[t]hat is usually provided by the 

legislature” and that “[i]t is a very unusual thing in constitutions, but a 

very usual thing in the statutory laws.” Id. That is significant. And no 

one raised a parallel question regarding the article 1 section 11 right in

“any civil cause to which he is a party” to “prosecut[e] or defend[] 

before any tribunal in this State, by himself or counsel.” See UTAH 

CONST. of 1896 art. I, § 11. 

¶ 98 For these reasons, I see no basis for finding a state 

constitutional right to appointed counsel in a case like this one. Due 

process is not a charter for “free-wheeling authority for the courts to 

second-guess the wisdom or fairness of legislative policy judgments.” 

In re Adoption of B.Y., 2015 UT 67, ¶ 27, 356 P.3d 1215 (citation omitted). 

It is an assurance of a right to traditional, longstanding tenets of due 

process, such as a “reasonable notice and an opportunity to be heard.” 

Id. ¶ 16. I would reject L.E.S.’s claim because he cites no such basis for a 

right to appointed counsel.

III

¶ 99 When a novel question of constitutional law presents itself, it 

is tempting to treat the question as an invitation to vindicate our gutlevel sense of “justice,” or in other words our sense of good policy. That 

temptation is heightened when the matter at hand is as sensitive and 

difficult as the one at issue here—of appointment of counsel in a 

parental-rights termination case. I can understand the impulse to find a 

basis for such an appointment. But I find no such basis in constitutional 

law. And in the absence of such a basis, I would leave the matter to the 

legislature. 

¶ 100 That is the branch of government with the power and 

experience necessary to decide on the wisdom of allocating public 

money to support appointment of counsel. And it is the branch of 

government that has direct accountability to the people. Perhaps in 

time the legislature will decide that paid counsel should be appointed 

in a case like this one. Unless and until that happens, I would not find a 

legal right to appointed counsel in parental-termination cases.