Amicus Curiae Brief — Blake Andrew Warner, Petitioner v. Hillsborough County School Board

Supreme Court briefFeb 7, 2025

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No. 24-718

In The

Supreme Court of the United States

BLAKE ANDREW WARNER,

Petitioner,

HILLSBOROUGH COUNTY SCHOOL BOARD,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE MANHATTAN

INSTITUTE IN SUPPORT OF PETITIONER

DALLIN HOLT

Counsel of Record

EMILY GOULD

REBECCA LAYNE

HOLTSMAN VOGEL BARAN

TORCHINSKY & JOSEPHIAK

PLLC

2300 N Street, NW

Suite 643

Washington, DC 20037

(202) 737-8808

dholt@holtzmanvogel.com

egould@holtzmanvogel.com

rlayne@holtzmanvogel.com

ILYA SHAPIRO

TIM ROSENBERGER

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iii

Identity & Interest of Amicus Curiae . . . . . . . . . . . 1

Introduction & Summary of the Argument . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Access to the Courts Is Protected by the

Equal Protection and Due Process Clauses . . . 4

A. The Counsel Mandate Violates

the Right to Access Courts . . . . . . . . . . . . . 4

J.W. Seeks to Protect a

Fundamental Right . . . . . . . . . . . . . . . 5

The Due Process Clause Protects

Access to the Courts . . . . . . . . . . . . . . 6

The Equal Protection Clause

Also Protects Court Access . . . . . . . . . 7

B. The Counsel Mandate Cannot Survive

Heightened Scrutiny Under the Due

Process and Equal Protection Clauses . . . 9

II. To Access Court, Litigants Hold a Separate

Right to Self-Representation . . . . . . . . . . . . . 10

A. The Right to Self-Representation Is

Embedded in Our Nation’s History

and § 1654 . . . . . . . . . . . . . . . . . . . . . . . . 11

B. For the Indigent Minor,

Self-Representation is Indispensable

to Court Access . . . . . . . . . . . . . . . . . . . . . 12

III. Children Have the Same Constitutional

Protections as Adults and J.W.’s

Circumstances Do Not Warrant Narrowing

Them . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV. Instead of the Counsel Mandate, Courts

Should Evaluate Whether the Minor’s

Constitutional Interests Will Be Served

by Denying Parental Representation . . . . . . . 17

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

TABLE OF AUTHORITIES

Cases

Adams v. United States ex rel McCann,

317 U.S. 269 (1942) . . . . . . . . . . . . . . . . . . . . . . . . 11

Alexander v. Holmes Cnty. Bd. of Ed.,

396 U.S. 19 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

Barbier v. Connolly,

113 U.S. 37 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bd. of Educ. v. Nathan R.,

199 F.3d 377 (7th Cir. 2000) . . . . . . . . . . . . . . . . . 14

Bellotti v. Baird,

443 U.S. 622 (1979) . . . . . . . . . . . . . . . . . . 15, 16, 18

Bill Johnson’s Restaurants, Inc. v. N.L.R.B.,

461 U.S. 731 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Boddie v. Connecticut,

401 U.S. 371 (1971) . . . . . . . . . . . . . . . . . . . 3, 5, 6, 9

Brown v. Bd. of Ed.,

347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Brown v. Ortho Diagnostic Sys., Inc.,

868 F. Supp. 168 (E.D. Va. 1994) . . . . . . . . . . . . . 18

Burns v. Ohio,

360 U.S. 252 (1959) . . . . . . . . . . . . . . . . . . . . . . 9, 10

Chambers v. Baltimore & O.R. Co.,

207 U.S. 142 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Colon-Reyes v. Fegs Health & Hum. Servs. Sys.,

2012 WL 2353732 (S.D.N.Y. June 13, 2012) . . . . 13

Conte v. Flota Mercante del Estado,

277 F.2d 664 (2d Cir.1960) . . . . . . . . . . . . . . . . . . 11

Cooper v. A. Sargenti Co., Inc.,

877 F.2d 170 (2d Cir. 1989) . . . . . . . . . . . . . . . . . . 13

Elustra v. Mineo,

595 F.3d 699 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . 2

Farretta v. California,

422 U.S. 806 (1975) . . . . . . . . . . . . . . . . . . . . . 11, 12

Foe v. Vanderhoof,

389 F. Supp. 947 (D. Colorado 1975) . . . . . . . . . . 17

Gardner v. Calif.,

393 U.S. 367 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Griffin v. Illinois,

351 U.S. 12 (1956) . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Grizzell v. San Elijo Elementary Sch.,

110 F.4th 1177 (9th Cir. 2024) . . . . . . . . . . . . . . . . 2

Harper v. Virginia Bd. of Elec.,

383 U.S. 663 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Harris v. Apfel,

209 F.3d 413 (5th Cir. 2000) . . . . . . . . . . . . . . . . . 18

Iannaccone v. L.,

142 F.3d 553 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . 11

In re Gault,

387 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Lindsey v. Normet,

405 U.S. 56 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Maldonado ex rel. Maldonado v. Apfel,

55 F. Supp. 2d 296 (S.D.N.Y. 1999) . . . . . 13, 14, 18

Mills v. Habluetzel,

456 U.S. 91 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 14

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . 3, 5, 6, 7, 9

Ohio v. Akron Center for Reproductive Health,

497 U.S. 502 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 17

O’Reilly v. New York Times Co.,

692 F.2d 863 (2d Cir. 1982) . . . . . . . . . . . . . . . . . . 12

Planned Parenthood of Central Missouri

v. Danforth,

428 U.S. 52 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Raskin on behalf of JD v. Dallas Indep.

Sch. Dist.,

69 F.4th 280 (5th Cir. 2023) . . . . . . . . . . . . . . . . 2, 3

Ripple v. Marble Falls Indep. Sch. Dist.,

99 F. Supp. 3d 662 (W.D. Tex. 2015) . . . . . . . 14, 15

Shapiro v. Thompson,

394 U.S. 618 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tennessee v. Lane,

541 U.S. 509 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tindall v. Poultney High Sch. Dist.,

414 F.3d 281 (2d Cir. 2005) . . . . . . . . . . . . . . . . 2, 17

United States v. Kras,

409 U.S. 434 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Warner v. Sch. Bd. of Hillsborough Cnty., Fla.,

2024 WL 2053698 (11th Cir. May 8, 2024) . . . . . . 2

Constitutional Provisions and Statutes

U.S. Constitution Equal Protection

Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8, 9, 18

U.S. Constitution Due Process Clause . . . 4, 6, 9, 18

1 U.S.C. § 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 U.S.C. § 1654 . . . . . . . . . . . . . . . . . . . 1, 2, 12, 15

vii

Other Authorities

Gary S. Goodpaster, The Integration of Equal

Protection, Due Process Standards, and the

Indigent’s Right of Free Access to the Courts, 56 Iowa

L. Rev. 223 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lisa V. Martin, No Right to Counsel, No

Access Without: The Poor Child's Unconstitutional

Catch-22, 71 Fla. L. Rev. 831 (2019) . . . . . . . 11, 13

IDENTITY &

INTEREST OF AMICUS CURIAE 1

The Manhattan Institute (“MI”) is a nonprofit

public-policy research foundation whose mission is to

develop and spread new ideas that foster economic

choice, individual responsibility, and lead urban areas

in the United States into prosperity. To that end, it

serves as a think tank in areas including education

and law. It has historically sponsored scholarship

supporting constitutional principles, the Fourteenth

Amendment, rule of law, and opposing government

overreach.

This case interests MI because it implicates

parental choice over educational opportunities and

the rights of students (and families) to select and

attend quality schools.

INTRODUCTION &

SUMMARY OF THE ARGUMENT

Since 1789, every individual—including minors—

has held the right to litigate pro se in federal court.

See Judiciary Act of 1789; 1 Stat. 73, 92 (providing

that “parties may plead and manage their own causes

personally or by the assistance of . . . counsel”

(emphasis added)). Recodified as 28 U.S.C. § 1654,

this statute now protects an indigent litigant’s

fundamental right to access courts pro per.

1 Pursuant to Supreme Court Rule 37.6, no counsel for any

party authored this brief in whole or in part. No person or entity

other than Amicus and the counsel below contributed the costs

associated with the preparation and submission of this brief.

According to the Eleventh Circuit, however, an

indigent minor must obtain counsel to sue a school

district for unconstitutional redistricting practices

based on race. Warner v. Sch. Bd. of Hillsborough

Cnty., Fla., 2024 WL 2053698, at *2 (11th Cir. May 8,

2024). Yet, if the minor is indigent, he cannot afford

counsel. The indigent minor, therefore, has no means

to access the court system. This is the catch-22: sue

with counsel, or don’t sue at all.

The Second, Fifth, Seventh, and Ninth Circuits

have expressed reticence about the harmful “counsel

mandate” and await this Court to correct its

“unyielding” application. See Grizzell v. San Elijo

Elementary Sch., 110 F.4th 1177, 1181 (9th Cir. 2024)

(hesitating to apply the counsel mandate and

explaining it “unquestionably raises concerns with

grave implications for children’s access to justice”);

Raskin on behalf of JD v. Dallas Indep. Sch. Dist., 69

F.4th 280, 286 (5th Cir. 2023) (stating that “the

absolute bar may not protect children’s rights at

all” and “is inconsistent with § 1654, which allows

a pro se parent to proceed on behalf of her child in

federal court when the child’s case is the parent’s

‘own’” (internal quotation omitted); Elustra v. Mineo,

595 F.3d 699, 705–06 (7th Cir. 2010) (observing that

the counsel mandate is “not ironclad” and “giv[ing]

effect” to a mother’s narrow pro se motion as

consistent with the purpose of the rule: “to protect the

rights” of the minor); Tindall v. Poultney High Sch.

Dist., 414 F.3d 281, 286 (2d Cir. 2005) (explaining that

the counsel mandate may “force minors out of court

altogether” where “counsel is as a practical matter

unavailable”).

The counsel mandate violates the Equal Protection

and Due Process Clauses because it denies an

indigent minor equal access to the court system and

his right to self-representation. When an indigent

person seeks court access to redress a violation of a

fundamental right, this Court applies “heightened

scrutiny”—"examin[ing] closely and contextually the

importance of the governmental interest advanced in

defense of the intrusion” denying the indigent access.

E.g., M.L.B. v. S.L.J., 519 U.S. 102, 116, 120 (1996).

This Court has also considered whether there are less

restrictive “reliable alternatives” in striking down a

rule restricting court access for the indigent. Boddie

v. Connecticut, 401 U.S. 371, 381–82 (1971).

The counsel mandate fails heightened scrutiny

because it is an absolute restriction on every minor

(even mature minors with capacity to consent) and

every parent — regardless of whether the minor will

lose his claim altogether if he is not represented by a

parent. In short, this type of exclusion is not

“substantially related” to the government’s interest in

protecting minors. E.g., Raskin, 69 F.4th at 286

(stating that “the absolute bar may not protect

children’s rights at all”).

It is time for this Court to narrow the counsel

mandate. Instead, courts should evaluate each

request for parental representation according to: (1)

the minor’s demonstrated maturity and capacity; (2)

the parent’s demonstrated understanding of the case;

and (3) the nature of the litigation before it—i.e. the

claim’s complexity, the statute of limitations, and

whether the minor will reach the age of majority

during the litigation.

ARGUMENT

ACCESS TO THE COURTS IS PROTECTED

BY THE EQUAL PROTECTION AND DUE

PROCESS CLAUSES.

The counsel mandate has the practical effect of

denying indigent minors access to the courts. This

type of invidious discrimination offends the right to

court access, which is a fundamental right guaranteed

by the Equal Protection and Due Process Clauses.

Typically, a law cannot impose a blanket ban on a

fundamental right under the Due Process and Equal

Protection Clauses. Tennessee v. Lane, 541 U.S. 509,

533 (2004) (explaining that the right to court access is

fundamental). The counsel mandate is no exception.

A. The Counsel Mandate Violates the Right

to Access Courts.

The ability to bring a lawsuit is “the right

conservative of all other rights, and lies at the

foundation of orderly government. It is one of the

highest and most essential privileges of citizenship.”

Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 148

(1907). The right to court access is a tool for protecting

other rights, “tak[ing] its specific importance and

coloration from the right or interest it is being used to

protect.” See Gary S. Goodpaster, The Integration of

Equal Protection, Due Process Standards, and the

Indigent’s Right of Free Access to the Courts, 56 Iowa

L. Rev. 223 (1970); see also e.g., See Bill Johnson’s

Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983)

(“The right of access to the courts is an aspect of the

First Amendment right to petition the Government

for redress of grievances.” (emphasis added)).

1. J.W. Seeks to Protect a Fundamental

Right.

At the outset, it is crucial to recognize that J.W.

seeks access to the courts to protect a fundamental

right — his Due Process and Equal Protection right to

attend a non-racially segregated school. E.g.,

Alexander v. Holmes Cnty. Bd. of Ed., 396 U.S. 19, 20,

(1969) (“[T]he denial of fundamental rights to many

thousands of school children, [through requiring them

to] attend[] Mississippi schools under segregated

conditions.”); Brown v. Bd. of Ed., 347 U.S. 483, 493

(1954) (“[An education], where the state has

undertaken to provide it, is a right which must be

made available to all on equal terms.”).

As shown below, when a litigant tries to bring a

claim for a violation of a fundamental right, this Court

is skeptical of rules that bar indigent people from the

courts. Specifically, this Court applies heightened

scrutiny to such rules, examining whether there is an

important government interest advanced by the rule,

as well as whether there are less restrictive “reliable

alternatives.” Infra, p. 6–10. M.L.B., 519 U.S. at 115

("examin[ing] closely and contextually the importance

of the governmental interest advanced in defense of

the intrusion” denying the indigent access); Boddie,

401 U.S. at 381–82 (analyzing less restrictive “reliable

alternatives” to the fees restricting court access for

indigent persons).

Here, J.W. attempts to rectify a school board’s

violation of his fundamental right to attend an

unsegregated school under § 1983—a quintessential

fundamental right. E.g., Alexander, 396 U.S. at 20.

His claim is based on race — a classification attracting

“heightened scrutiny.” M.L.B., 519 U.S. at 116.

2. The Due Process Clause Protects Access to

the Courts.

In civil cases, due process requires that litigants

have a “meaningful opportunity to be heard” by

removing obstacles to their full participation in

judicial proceedings. Boddie, 401 U.S. at 379; M.L.B.,

519 U.S. at 115.

Boddie is the landmark case applying the Due

Process Clause to economic barriers to court access.

There, this Court held that court fees for divorce

actions barred indigent parties as an “exclusive

precondition” to pursuing a divorce and violated the

Due Process Clause. Boddie, 401 U.S. at 789. The

Court’s analysis rested on two essential principles: (1)

that marriage is “fundamental”; and (2) that the state

required the plaintiffs to “resort to the judicial

process” for the adjustment of this fundamental

relationship. Id. at 383.

The rule from Boddie is clear: the Due Process

Clause requires court access to vindicate

“fundamental rights,” and it requires a court to

consider “reliable alternatives” to such restrictions.

Id.

Two years later, this Court fortified the Boddie

rule in United States v. Kras, 409 U.S. 434, 446 (1973).

Although Kras chose not to waive fees for an indigent

party in a civil bankruptcy proceeding, Kras clarified

that its decision rested on the lack of a constitutional

right to discharge debts through bankruptcy. Id. The

Court explained:

Bankruptcy is hardly akin to free speech

or marriage or to those other rights, so

many of which are imbedded in the First

Amendment, that the Court has come to

regard as fundamental and that demand

the lofty requirement of a compelling

governmental interest before they may

be significantly regulated. . . Neither

does it touch upon what have been said to

be the suspect criteria of race,

nationality, or alienage.

Id. at 446 (emphasis added) (internal citations

removed).

Kras, therefore, is consistent with Boddie and

distinguishable from J.W.’s case. J.W. seeks to protect

a fundamental right; Kras did not. Id.

Since Kras, this Court has reiterated that

heightened scrutiny applies to the government’s

denial of court access where the litigant seeks to

vindicate fundamental rights. M.L.B.., 519 U.S. at 116

(explaining that a “fundamental interest or

classification attract[s] heightened scrutiny” in the

adjudication of termination of parental rights).

3. The Equal Protection Clause Also Protects

Court Access.

The counsel mandate also violates the Equal

Protection Clause, which ensures that indigent

minors “have like access to the courts of the country for

the protection of their persons and property [and] the

prevention and redress of wrongs. . . .” Barbier v.

Connolly, 113 U.S. 37, 31 (1884) (emphasis added).

Indeed, this Court has repeatedly held that every

person is entitled to “equal access to the courts of the

country for the protection of their persons and

property, the prevention and redress of wrongs, and

the enforcement of contracts.” Barbier v. Connolly,

113 U.S. 27, 31 (1885); see also Griffin v. Illinois, 351

U.S. 12, 19 (1956) (“There can be no equal justice

where the kind of trial a man gets depends on the

amount of money he has.”)

In Griffin, this Court relied on the Equal

Protection Clause to strike down an Illinois rule

requiring an appellant facing a criminal conviction to

pay for and obtain a transcript to appeal. Id. at 18, 24.

The Court reasoned that the transcript requirement,

based on a person’s ability to pay, blocked access to

the judicial process. Id. at 13. Although the Court held

that there is no due process right to an appeal, the

Court reasoned that if the state affords that right, it

cannot “bolt the door to equal justice” according to the

ability to pay. Id. at 24.

Likewise, in Lindsey v. Normet, this Court

invalidated an Oregon law that required tenants to

post a double bond when appealing a judgement for

forcible entry and detainer. 405 U.S. 56, 77, 79 (1972).

Similar double bonds were not required in other

actions, and the state provided no acceptable rational

for the extra bond against tenants. Thus, this Court

held that the law arbitrarily discriminated against

tenants as a class-based distinction in violation of the

Equal Protection Clause. This Court reasoned: “The

discrimination against the poor . . . is particularly

obvious. For them, as a practical matter, appeal is

foreclosed, no matter how meritorious their case may

be.” Id. at 79.

In many different contexts, this Court has

repeatedly struck down financial barriers that

discriminate against the poor when other

fundamental rights are at stake. Shapiro v.

Thompson, 394 U.S. 618 (1969) (protecting the right

to travel); Harper v. Virginia Bd. of Elec., 383 U.S. 663

(1966) (protecting against financial barriers imposed

on the right to vote); Gardner v. Calif., 393 U.S. 367

(1969) (prohibiting financial barriers imposed on the

right to present a criminal defense); Burns v. Ohio,

360 U.S. 252 (1959) (same); Griffin, 351 U.S. at 26

(same).

Thus, financial barriers to court access—such as

fees and bonds—run afoul of the Due Process and

Equal Protection Clauses by discriminating against

indigent litigants based on their lack of resources.

Mandatory appointment of counsel is no different.

B. The Counsel Mandate Cannot Survive

Heightened Scrutiny Under the Due

Process and Equal Protection Clauses.

Under heightened scrutiny, this Court must

“examine[] closely and contextually the importance of

the governmental interest advanced in defense of the

intrusion” denying the indigent access, as well as less

restrictive alternatives. E.g., M.L.B., 519 U.S. at 116

(using the phrase “heightened scrutiny”); see also

Boddie, 401 U.S. at 381–82 (analyzing less restrictive

“reliable alternatives” to the fees restricting court

access).

Here, there is no substantial relation justifying a

blanket ban prohibiting all parents from representing

all minors in every case. Boddie, 401 U.S. at 381–82.

This Court, therefore, should consider the specific

nature of J.W.’s request, and narrow the counsel

mandate accordingly. Many indigent minors, like

J.W., may possess sufficient maturity and capacity to

consent to parental representation. Likewise, many

parents may, depending on the factual and legal

complexity of the case, be able to effectively advocate

and represent their children. In short, a case-by-case

analysis is required, not a blanket ban. And here, Mr.

Warner has already demonstrated his ability to

effectively represent J.W. Infra, p. 18.

Courts sometimes justify the counsel mandate, in

part, by claiming it protects the judicial system

against potentially ill-prepared and vexatious parentlitigants. See Jones v. Niagara Frontier Transp. Auth.,

722 F.2d 20, 22 (2d Cir. 1983). But this government

interest does not justify a categorical denial of due

process to minors and the poor. E.g. Boddie, 401 U.S.

at 382 (striking down fee requirement to court access

in part because “the State invariably imposes the

costs as a measure of allocating its judicial resources,”

which was a “rejected” state interest).

II. TO ACCESS COURTS, LITIGANTS HOLD A

SEPARATE RIGHT TO SELF-REPRESENTATION.

In addition to failing heightened scrutiny (which is

dispositive) the counsel mandate also violates the

right to self-representation as a means to access the

courts.

The Right to Self-Representation Is

Embedded in Our Nation’s History and §

1654.

To ensure equal access to the courts, indigent

parties must be able to represent themselves. “The

Founders believed that self-representation was a

basic right of a free people,” protected by statute since

“the beginnings of our Nation.” Farretta v. California,

422 U.S. 806, 826–30 (1975); see also Adams v. United

States ex rel McCann, 317 U.S. 269, 279 (1942) (“The

right to assistance of counsel . . . correlate[es] [to the]

right to dispense with a lawyer’s help . . .”).

Self-representation is deeply rooted into our

common law and Anglo-American traditions, dating

back centuries to the notorious and secretive English

court—the Star Chamber—where defendants subject

to politically-motivated allegations were forced to

accept gratuitous and ineffective state representation.

See Lisa V. Martin, No Right to Counsel, No

Access Without: The Poor Child's Unconstitutional

Catch-22, 71 Fla. L. Rev. 831, 846 (2019); see also

Faretta, 422 U.S. at 826 (“In the American Colonies

the insistence upon a right of self-representation was,

if anything, more fervent than in England.”).

The Founders also supported the right to selfrepresentation out of distrust for lawyers. Id.; see also,

e.g., Conte v. Flota Mercante del Estado, 277 F.2d 664,

672 (2d Cir.1960) (explaining that the Founders

“deliberate[ly] depart[ed] from the English practice” of

fee awards from colonists’ “distrust of lawyers”);

Iannaccone v. L., 142 F.3d 553, 557 (2d Cir. 1998)

(“[T]he Massachusetts Body of Liberties of 1641

expressly permitted every litigant to plead his own

cause and provided, if forced to employ counsel, the

litigant would pay counsel no fee for his services.”

(emphasis added)).

For more than thirty years, this Court has held the

Sixth Amendment right to the effective assistance of

counsel also encompasses the right to selfrepresentation. See Faretta, 422 U.S. at 816–20.

Faretta could not have been clearer: “We confront here

a nearly universal conviction, on the part of our people

as well as our courts, that forcing a lawyer upon an

unwilling defendant is contrary to his basic right to

defend himself if he truly wants to do so.” Id. at 817

(emphasis added).

Although Faretta focuses on the rights of criminal

defendants under the Sixth Amendment, there can be

no doubt that the right of self-representation

transcends to civil cases via statute. 28 U.S.C. § 1654

(mirroring the choice of an individual citizen to plead

his or her own cause in civil matters). Time and

again, courts have explained the importance of selfrepresentation in civil cases under § 35 of the

Judiciary Act of 1789. E.g., O’Reilly v. New York Times

Co., 692 F.2d 863, 867 (2d Cir. 1982) (“The right to

self-representation . . . is a right of high standing, not

simply a practice to be honored or dishonored by a

court depending on its assessment of the desiderata of

a particular case.”).

B. For

the

Indigent

Minor,

SelfRepresentation is Indispensable to Court

Access.

Respondent will reason that the indigent minor

can pursue other avenues (i.e. securing court-

appointed counsel or pro bono legal services). This

argument denies reality.

This Court needs no primer on the lack of legal

services available to indigent people. E.g., Cooper v. A.

Sargenti Co., Inc., 877 F.2d 170, 172–73 (2d Cir. 1989)

(describing volunteer lawyers as a “precious

commodity” of volunteer lawyers for those litigants

who truly need a lawyer’s assistance); Colon-Reyes v.

Fegs Health & Hum. Servs. Sys., 2012 WL 2353732, at

*1 (S.D.N.Y. June 13, 2012) (“Because this Court does

not have a panel of attorneys who can be compelled to

take on civil cases pro bono, and does not have the

resources to pay counsel in civil matters, the

appointment of counsel is a rare event.”); Martin, No

Right to Counsel, No Access Without: The Poor Child's

Unconstitutional Catch-22, p. 357 (“On average, ‘[l]ow

income Americans receive inadequate or no

professional legal help for eighty-six percent of the

civil legal problems they face in a given year.’”).

In fact, the lack of viable alternatives justifies

parental representation on behalf of indigent minors

in the context of supplemental security income (“SSI”)

appeals. E.g., Maldonado ex rel. Maldonado v. Apfel,

55 F. Supp. 2d 296, 306, 308 (S.D.N.Y. 1999) (“As a

policy matter, it is not reasonable or practical for the

Court to appoint counsel in all of these [minor-SSI

appeal] cases.”). The district court continued:

Unfortunately, these social security

appeals often ‘are not very attractive

cases’

non-volunteer

private

attorneys. . . . [A]ttorneys in private

practice . . . will not accept children’s SSI

cases.’ . . . Further, legal services

organizations cannot be expected to

accept all of the children’s SSI cases. Due

to lack of funding, the loss of staff

positions, and other responsibilities,

most organizations are operating at or

near capacity. . . [P]rivate funding for

legal services for low-income persons is

woefully inadequate to meet the pressing

legal need.”).

Id. at 306–07 (internal citations omitted) (cleaned up)

(emphasis added). The unfortunate truth is that pro

bono representation for a minor—regardless of

whether it is a civil case or SSI appeal—is rare indeed.

And minors like J.W. will rarely, if ever, receive

court-appointed counsel. See id. at 307 (“When a court

orders that counsel be appointed in a civil case in this

district, the case is added to a list of other cases in

which counsel has been requested.”)

Moreover, minors cannot always rely on tolling of

the statute of limitations to preserve their claims. See

Mills v. Habluetzel, 456 U.S. 91, 104 (1982)

(recognizing that states are free to impose various

limitations periods for different actions). Even where

a statute of limitations is tolled, a high school

graduate may face separate standing hurdles in suing

a school district for wrongs that have long-since

passed. Cf. Bd. of Educ. v. Nathan R., 199 F.3d 377,

380–381 (7th Cir. 2000) (applying the mootness

doctrine to a plaintiff who graduated from high school

where no action from the court could affect the

plaintiff’s rights under the Individuals with

Disabilities Education Action); see Ripple v. Marble

Falls Indep. Sch. Dist., 99 F. Supp. 3d 662, 687 (W.D.

Tex. 2015) (explaining same effect).

Thus, for many claims, an indigent minor has no

option beyond allowing his parent to represent him.

III. CHILDREN HAVE THE SAME CONSTITUTIONAL

PROTECTIONS

ADULTS

AND

J.W.’S

CIRCUMSTANCES DO NOT WARRANT NARROWING

THEM.

Respondent will contend that minors are exempted

from § 1654, and, in any event, minors do not enjoy

the same fundamental rights to court access and selfrepresentation. These arguments are wrong.

Congress

was

unequivocal—nothing

§1654 imposes a blanket ban against minors on the

right to proceed pro se. Unless context dictates

otherwise, congressional enactments generally treat

adults and minors as equal “persons.” 1 U.S.C. § 8(a).

Section 1654 includes nothing to the contrary.

Moreover, this Court has held that children have

the same fundamental constitutional protections as

adults. Bellotti v. Baird, 443 U.S. 622, 633 (1979) (“A

child, merely on account of his minority, is not beyond

the protection of the Constitution.”); In re Gault, 387

U.S. 1, 13 (1967) (“[W]hatever may be their precise

impact, neither the Fourteenth Amendment nor the

Bill of Rights is for adults alone.”). Indeed,

“[c]onstitutional rights do not mature and come into

being magically only when one attains the statedefined age of majority. Minors, as well as adults, are

protected by the Constitution and possess

constitutional rights.” Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 52, 74 (1976).

In fact, this Court has reasoned that although the

“legal system” can sometimes be “adjust[ed]” to

account

for

“children’s

vulnerability,”

such

adjustments should only serve three narrow reasons.

Bellotti, 443 U.S. at 634. Specifically, Bellotti held

that narrowing minors’ rights should occur to serve:

(1) “the peculiar vulnerability of children;” (2) “their

inability to make critical decisions in an informed,

mature manner;” and (3) the importance of the

parental role in child rearing.” Id.

None of the reasons articulated by Belloti are

served by the counsel mandate. Although certain

minors may be vulnerable through an immature

understanding of the legal system, the blanket

counsel mandate does not practically work to serve

those interests. As set forth below, infra p. 17–18, the

counsel mandate sweeps far too wide and

encompasses mature minors who have nearly reached

the age of majority, as well as parents possessing

sufficient legal acumen and seeking to bring basic

claims. And the counsel mandate ignores the

“importance of the parental role in child rearing”

altogether. Id.

In short, for indigent minors, there is no good

option. Either a capable parent pleads a

straightforward case for a competent minor, or the

minor has no chance to access the justice system.

IV. INSTEAD OF THE COUNSEL MANDATE, COURTS

SHOULD EVALUATE WHETHER THE MINOR’S

CONSTITUTIONAL INTERESTS WILL BE SERVED

BY DENYING PARENTAL REPRESENTATION.

The blanket counsel mandate could be easily

tailored. Instead of rejecting every request for

parental representation, courts should evaluate: (1)

the minor’s capacity; (2) the parent’s apparent ability

to serve as an advocate; and (3) the complexity of the

relevant claim, applicability of a statute of

limitations, and future standing problems if the

request is denied. Tindall, 414 F.3d at 285 (“In our

view, the rule that a parent may not represent her

child should be applied gingerly.”).

First, many minors have sufficient age, maturity,

and capacity to comprehend the risks of pro se

litigation. For years, courts have evaluated minors’

maturity and capacity to consent to weightier

decisions, such as obtaining abortions without

parental knowledge, seeking emancipation and

military enlistment (set by state law), and receiving

(or foregoing) medical treatments. See Ohio v. Akron

Center for Reproductive Health, 497 U.S. 502 (1990)

(abortions); Foe v. Vanderhoof, 389 F. Supp. 947 (D.

Colorado 1975) (discussing scenarios in which minors

can consent to medical treatment according to

demonstrable maturity). Courts can undoubtedly do

so here too.

Second, many parents could serve as effective

advocates and submit pleadings that are cogent and

legally reasoned. Under this factor, courts should

consider the parent’s ability to present law and

argument, as well as the time and resources of the

family. Petitioner’s work to date demonstrates

necessary legal acumen through his Verified

Complaint [Doc. 1]. Moreover, in many cases, a parent

may be a more passionate and effective advocate than

a pro bono or court-appointed attorney. “Parents

naturally take an interest in the welfare of their

children”—an interest that cannot be duplicated by

the care of a non-parent lawyer. Bellotti, 443 U.S. at

648.

Third, not all claims pose the same complexity.

Courts can evaluate whether the minor’s claim will

require expert testimony, application of complicated

procedural rules and statutory provisions, and the

development of a complex factual record.

For example, as mentioned above, non-attorney

parents represent minors in the SSI context. E.g.,

Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000);

Maldonado v. Apfel, 55 F. Supp. 2d 296, 308 (S.D.N.Y.

1999) (explaining that SSI appeals are less “involved”

than other statutory causes of action and impose less

“burden on litigants”); Gallo v. United States, 331 F.

Supp. 2d 446 (E.D. Va. 2004) (rejecting parent’s

attempt to litigate on behalf of child for personal

injury in a medical malpractice case); Brown v. Ortho

Diagnostic Sys., Inc., 868 F. Supp. 168 (E.D. Va. 1994)

(same, as to products liability case).

In short, courts hold a sufficient repository of tools

to evaluate whether the counsel mandate serves the

rights of each indigent minor on a case-by-case basis.

The Equal Protection and Due Process Clauses

demand this nuanced approach.

CONCLUSION

The counsel mandate blocks relief for indigent

minors who can only proceed by a pro se parent. This

Court should correct the unyielding counsel mandate

and grant the Petition for Review submitted by

Petitioner Blake Warner.

Respectfully Submitted,

DALLIN HOLT

Counsel of Record

EMILY GOULD

REBECCA LAYNE

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK, PLLC

2300 N Street N.W.