Miller v. Baldwin

ARMSTRONG, J.,

dissenting.

Oregon statutes provide for the appointment of counsel for indigent litigants in a variety of proceedings, including post-conviction proceedings. In every case before this one, Oregon courts have held that the statutory right to appointed counsel includes the right to have appointed counsel provide adequate representation. Furthermore, in every case before this one in which the legislature failed to provide a specific procedure to vindicate that right, Oregon courts have held that the remedy for inadequate representation by appointed counsel is to permit the litigants to challenge the adequacy of their appointed counsel in the proceeding in which counsel appeared. The majority concludes, however, that post-conviction proceedings are different from all of other proceedings involving appointed counsel. That difference leads the majority to deny post-conviction plaintiffs any *511 meaningful remedy for the failure of their appointed counsel to provide adequate representation. I respectfully dissent from that decision.

State ex rel Juv. Dept v. Geist, 310 Or 176 , 796 P2d 1193 (1990), is the first case in which an Oregon court held that a statutory right to appointed counsel includes a right to adequate representation by that counsel. Geist involved a proceeding in which the state sought to terminate a mother’s parental rights. The mother was indigent, so, by statute, she was entitled to have, and did have, court-appointed counsel at trial and on appeal in the proceeding. The trial resulted in a decision terminating the mother’s parental rights, and she appealed that decision to us.

The mother argued on appeal that her appointed trial counsel had provided inadequate legal representation and, as a consequence, that the termination decision should be reversed. We agreed with the mother that the statutory right to appointed counsel included a right to adequate counsel, but we concluded that the legislature had failed to create a means by which to vindicate that right and that we lacked the authority to create one. We therefore held that the mother could not use the alleged inadequacy of her trial counsel as a basis to reverse the termination decision. State ex rel Juv. Dept. v. Geist, 97 Or App 10, 17-18 , 775 P2d 843 (1989).

On review, the Supreme Court readily agreed with us that the statutory right to appointed counsel included a right to adequate counsel. It disagreed, however, with our conclusion that the legislature’s failure to provide a remedy to vindicate that right meant that we lacked authority to provide one: *512 Geist, 310 Or at 185 (footnote omitted). The court went on to conclude that the appropriate procedure by which to challenge the adequacy of appointed trial counsel was to raise the issue on direct appeal in the termination proceeding. Id. at 186-87 .

*511 “We reject the notion that, although mandating the appointment of trial counsel for indigent parents, the legislature intended that no procedure be available to vindicate that statutory right. Absent an express prohibition against challenges of adequacy of appointed counsel, we do not interpret the legislature’s omission of an express procedure as evidencing any legislative intent to preclude such challenges. Absent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may fashion an appropriate procedure.”

*512 Since Geist, we have consistently held that statutes that give indigent litigants a right to appointed counsel include as an aspect of that right a right to adequate counsel. 1 The majority does not appear to question the application of that principle to the statute at issue in this case, ORS 138.590. There are at least two reasons why I doubt that it could.

First, ORS 138.590 and the comparable statute governing appointment of appellate counsel in criminal and post-conviction proceedings, ORS 138.500, both provide for the appointment of “suitable counsel possessing skills and experience commensurate with the nature” of the cases for which they are appointed. 2 Given the comparatively low *513 standard that counsel must meet to be considered adequate, I do not see how counsel who fail to meet that standard could be considered to meet the suitability standard specified in the statutes.

Second, the legislature adopted the Post-Conviction Hearing Act in 1959 to create a state procedure that would provide an effective means by which people convicted of crimes could obtain relief against constitutionally flawed convictions. The legislature intended the act to provide effective relief against such convictions because it believed (1) that the federal constitution required the state to provide an effective post-conviction remedy for such convictions, (2) that state post-conviction relief would be preferable to federal post-conviction relief, and (3) that it was fair to people convicted of crimes to provide them with such relief. 3

The act included provisions for the appointment of counsel in post-conviction proceedings because the legislature believed that representation of indigent post-conviction plaintiffs by counsel was essential for the act to achieve its intended purposes. 4 In that light, there can be little doubt that the legislature intended that appointed counsel in such proceedings be adequate counsel.

Because the right to appointed counsel under ORS 138.590 includes the right to adequate counsel, the determinative issue is whether there is a way to enforce that right in this case. The majority concludes that there is not. It offers several reasons to support that conclusion, none of which withstands examination.

The majority principally relies on a series of cases that have rejected efforts to challenge the adequacy of appointed post-conviction counsel in proceedings that are filed after the conclusion of the post-conviction proceeding in which counsel performed inadequately. Church v. Gladden, *514 244 Or 308 , 417 P2d 993 (1966), is one of those cases. It involved a post-conviction proceeding in which the plaintiff challenged the adequacy of his appointed counsel in a prior post-conviction proceeding. The court rejected that effort, explaining that, if it were to permit such a challenge,

“it is absolutely impossible that there be any finality to this type of litigation. In each successive post-conviction proceeding all a petitioner need do is allege that his attorneys in each of his previous proceedings were unfaithful to their trust, and the door is opened wide to relitigate ad infinitum.”

Id. at 311 . 5

Of course, as the majority recognizes, Church and its progeny do not directly apply to this case, which involves an effort to address the inadequacy of appointed counsel in the proceeding in which the inadequate representation occurred. The majority appears to reason, however, that complete relief against inadequate assistance by appointed post-conviction counsel can be achieved only by allowing the issue of inadequate representation to be raised in proceedings after the post-conviction proceedings in which the inadequate representation occurred. Church and its progeny confirm that the legislature did not intend to permit that, so it follows that the legislature did not intend for post-conviction plaintiffs to be able to raise the issue of inadequate representation in the post-conviction proceedings in which the inadequate representation occurred. See 176 Or App at 508.

So stated, the majority’s reasoning is obviously fallacious. A legislative decision to deny one form of relief against inadequate assistance of appointed counsel does not imply a decision to deny all relief. Furthermore, the majority’s reasoning cannot be reconciled with what the Supreme Court did in Geist. The court recognized in Geist that termination proceedings must be brought to a prompt and final resolution. Consequently, it rejected the use of a procedure to vindicate the statutory right of parents to adequate *515 appointed counsel that would allow parents to challenge the adequacy of their counsel in proceedings after the termination proceedings in which counsel provided inadequate assistance. Geist, 310 Or at 186-87 . By rejecting the use of subsequent proceedings to raise issues about the adequacy of appointed termination counsel, the court necessarily limited the ability of parents to challenge the adequacy of their appointed counsel, because only the most obvious instances of inadequate representation are likely to be identified and raised on direct appeal from a termination decision. Nevertheless, the court believed that it was appropriate to give parents that limited remedy for the violation of their statutory right to adequate appointed counsel rather than leave them with no remedy for the violation. Id.

Church and its progeny simply do what the court did in Geist. They reject the use of subsequent proceedings to vindicate a statutory right to adequate appointed counsel. That rejection should lead, as it did in Geist, to the recognition of a remedy by post-conviction plaintiffs to challenge the adequacy of their appointed counsel in the post-conviction proceedings in which counsel provided inadequate assistance. Although the remedy is a limited one, Geist and its progeny support its adoption, and nothing in Church and its progeny requires us to reject it.

The other reasons offered by the maj ority for its decision to reject a remedy for the denial of adequate assistance of appointed post-conviction counsel provide even less support for it. It notes that the cases in which courts have provided a remedy for violation of a statutory right to adequate appointed counsel have involved situations in which the state is seeking relief against the party who is entitled to appointed counsel, while a post-conviction proceeding is one in which the party who is entitled to adequate appointed counsel is seeking relief against the state. 176 Or App at 508-09. There is that difference, but it suggests nothing about whether there should be a remedy for violations of the statutory right to counsel in post-conviction proceedings. As noted above, the legislature adopted the Post-Conviction Hearing Act in 1959 to fulfill a constitutional obligation that the state *516 had to provide effective post-conviction relief to people convicted of crimes. The legislature provided for the appointment of adequate counsel for post-conviction plaintiffs in order to ensure that the act fulfilled its purposes. There is no reason to think that the legislature had any less interest in providing an appropriate remedy by which to vindicate the statutory right to appointed counsel in post-conviction proceedings than it had in providing such a remedy for people who are entitled to appointed counsel in other proceedings.

Finally, the majority notes that the legislature has provided by statute for delayed appeals in criminal cases but not in post-conviction cases, which, according to the majority, suggests that the legislature does not intend for there to be delayed appeals in post-conviction proceedings. Because that is the relief that plaintiff seeks in this case as a remedy for the failure of his appointed post-conviction counsel to file a timely appeal, the majority concludes that we should not imply a right to obtain such relief in a post-conviction proceeding. 176 Or App at 509. The creation of a right to a delayed appeal in criminal cases implies no such thing.

Before the legislature adopted the statute authorizing delayed appeals in criminal cases, criminal defendants could and did obtain that relief through post-conviction proceedings. 6 The legislature decided to simplify the process by creating a limited right to pursue a delayed criminal appeal, thereby reducing the need for criminal defendants to rely on post-conviction proceedings for that relief. 7 The decision to create a simplified procedure to reduce one source of post-conviction claims implies nothing about whether the legislature intends there to be a remedy for failure by post-conviction counsel to file a timely appeal in post-conviction proceedings.

If it did, it means that we erred in State ex rel SOSCF v. Hammons, 169 Or App 589 , 10 P3d 310 (2000), in granting a delayed appeal to a mother in a parental rights termination case. We granted that relief as a remedy for the *517 failure by the mother’s appointed counsel to provide adequate assistance to her by filing a timely notice of appeal. We did that even though there is a statute that provides for delayed appeals in termination cases by parents who are unrepresented by counsel. Id. at 593-94 . If, as the majority concludes here, a legislative decision to provide delayed appeals in criminal cases implies a decision not to make that remedy available to post-conviction plaintiffs, the legislative decision to make delayed appeals available to unrepresented parents in termination cases implies a decision not to make that remedy available to parents represented by appointed counsel. Of course, I have no difficulty reconciling Hammons with this case, because I believe that the existence of a statutory right to a delayed appeal in some criminal cases implies nothing about our ability to provide a delayed appeal as a remedy for appointed counsel’s failure to file a timely post-conviction appeal.

Because I disagree with the majority’s decision to deny a post-conviction plaintiff any remedy for his appointed counsel’s failure to provide adequate legal assistance, I must resolve whether counsel’s failure to file a timely notice of appeal in this case constituted inadequate assistance that would entitle plaintiff to relief. I have no difficulty concluding that it did.

Appointed counsel’s failure to file a timely notice of appeal in this case is attributable, in part, to the trial court clerk’s failure to send that counsel a notice of the entry of the judgment, as required by ORCP 70 B(l). 8 The question, then, is whether the trial court clerk’s failure to send the required notice excuses counsel’s failure to file a timely notice of appeal.

*518 Case law is clear that it does not. In Far West Landscaping v. Modern Merchandising, 287 Or 653, 656-57 , 601 P2d 1237 (1979), the court compiled cases from 1899 through 1926 in which the court had held that a party (or counsel for a party) seeking to appeal a judgment is personally responsible for inspecting the trial court’s records to determine whether the judgment has been entered and that a party (or counsel) may not rely on information from court staff about the entry of the judgment. Similarly, after the adoption of ORCP 70 B, which imposes an affirmative duty on trial court clerks to give parties notice of the entry of a judgment, we held that a clerk’s breach of that duty does not excuse the untimely filing of a notice of appeal. Junction City Water Control v. Elliott, 65 Or App 548, 550-52 , 672 P2d 59 (1983).

I take judicial notice of the fact that any member of the public with appropriate computer facilities, including attorneys, may subscribe to the Oregon Judicial Information Network (OJIN), the computer system that serves as the case register for every state court in Oregon. Any OJIN subscriber can personally and at any time view the case register for any state case and determine whether a judgment has been entered in it. Given that the law in this area has been settled since 1899 and has been reaffirmed periodically, including as recently as 1983, there is no question that counsel provided inadequate assistance to plaintiff in this case by failing to determine that a judgment had been entered in the case and, consequently, by failing to file a timely notice of appeal.

In summary, the majority errs by concluding that we lack authority to provide plaintiff with a delayed appeal in this case as a remedy for appointed counsel’s failure to provide adequate assistance to plaintiff by filing a timely notice of appeal. Because I cannot join in that error, I respectfully dissent.

See, e.g., State ex rel Juv. Dept. v. Balderas, 172 Or App 223, 227-28 , 18 P3d 434 (2001); State ex rel Juv. Dept. v. Charles/Austin, 106 Or App 628, 633-34 , 810 P2d 389 (1991).

ORS 138.590 provides, as relevant:

“(1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to employ suitable counsel possessing skills and experience commensurate with the nature of the conviction and complexity of the case for such a proceeding may proceed as an indigent person pursuant to this section upon order of the circuit court in which the petition is filed.

“(4) In the order to proceed as an indigent person, the circuit court shall appoint suitable counsel to represent petitioner. Counsel so appointed shall represent petitioner throughout the proceedings in the circuit court.”

ORS 138.500 provides, as relevant:

“(1) If a defendant in a criminal action or a petitioner in a proceedingpursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. * * *

“(b) If, based upon a request under paragraph (a) of this subsection, the court finds that petitioner or defendant previously received the services of appointed counsel or currently is without funds to employ suitable counsel for an appeal, the court shall appoint counsel to represent petitioner or defendant *513 on the appeal, subject to applicable contracts entered into by the State Court Administrator under ORS 151.460.”

See Jack G. Collins and Carl R. Neil, The Postconviction-Hearing Act, 39 Or L Rev 337, 337-40, 343-47, 350-51, 355-59, 364-65 (1960); Shipman v. Gladden, 253 Or 191, 203-04 , 453 P2d 921 (1969).

See ORS 138.500; ORS 138.590; Collins and Neil, The Postconviction-Hearing Act, 39 Or L Rev at 350-51, 364-66.

The other cases that have followed Church are McClure v. Maass, 110 Or App 119 , 821 P2d 1105 (1991), rev den 313 Or 74 (1992); Page v. Cupp, 78 Or App 520 , 717 P2d 1183 , rev den 301 Or 338 (1986); and Hetrick v. Keeney, 77 Or App 506 , 713 P2d 688 , rev den 300 Or 722 (1986).

See, e.g., Shipman, 253 Or at 195, 203-04 .

See Or Laws 1987, ch 852, § 1 (codified at ORS 138.071(4)).

OKCP 70 B(l) provides, as relevant:

“All judgments shall be filed and notation of the filing shall be entered in the register by the clerk. The clerk, on the date the judgment is entered, shall mail a notice of the entry of the judgment in the register and shall mail a copy of the entry in the judgment docket. If the judgment was not docketed in the judgment docket, the clerk shall give notice of that fact. The clerk shall mail the notice to the attorneys of record, if any, of each party who is not in default for failure to appear. If a party who is not in default for failure to appear does not have an attorney of record, such notice shall be mailed to the party. The clerk shall also make a note in the register of the mailing.”