The Supreme Court ruled yesterday that courts can permanently remove a child form parents without providing them with a lawyer.
The court declined in a 5-to-4 vote to extend to parents who cannot afford a lawyer the same guarantee of legal representation enjoyed by indigent criminal defendants under its landmark 1963 ruling it Gideon v. Wainwright. Instead, the justices left the decision to each individual judge in each case involving termination of parental rights.
In a second important ruling yesterday, the court overturned a Mount Ephraim, N.J., zoning ordinance used to ban nude dancing, serving notice that such legislation must be carefully justified and narrowed to conform with constitutional safeguards of free expression, which includes dancing, nude or otherwise.
The decision trims some of the broad authority the court has previously allowed under local zoning power. Chief Justice Warren E. Burger and Justice William H. Rehnquist filed vigorous dissents, saying that "certain forms of activity -- factories, gas stations, sports stadia, bookstores and surely live nude shows" can sometimes be banned by a community to further its own conception of the "'decent life.'"
The parential rights ruling was called "incredible" by justice harry A. Blackmum, William J. Brennan Jr. and Thurgood Marshall, with Blackmum taking the usual step of announcing his dissent from the bench. The decision leaves poor parents virtually defenseless against country government lawyers and social workers who usually instigate such proceedings to "dissolve the intimate and personal family bonds between parent and child," Blackmum said.
The dissenters said it was "not a little ironic" that the ruling should be issued simultaneously with another one released yesterday: a unaminous holding that a father fighting a paternity claim is entitled to a state-financed blood test to help defend himself. The parental rights case was part of a 22-year process, set of by the Gideon ruling, to determine how far the right to court-appointed counsel goes under the Constitution's guarantee of due process. Had the court extended the right yesterday, it would have been the first clear application of the Gideon principle to a purley civil proceeding not involving imprisonment.
Parental rights cases are standard fare in county courts across the country.
They are usually instigated by social workers who claim that a child is being abused or neglected by a mother or father. Thirty-three states (including Maryland) and the District of Columbia already provide lawyers for parents who cannot afford one in the belief that removal trepasses on one of the most fundamental and intimate relationships and is a penalty often more severe than incarceration.
Legal services lawyers representing Abby Gail Lassiter, a North Carolina woman in yesterday's case made that argument. Social workers in Durham County, N.C., obtained a court order for temporary removal of Lassiter's infant son, William, in the spring of 1975 on the grounds that he was not receiving proper medical care. A year later, Lassiter was convicted of second-degree murder, stemming from a stabbing during a domestic fight.
While she was in prison, serving a 25-to-40 year sentence, county officials sought the permanent removal of William, though Lassiter wanted him to remain with a grandmother. The social workers said that Lassiter's lack of contact with William and her lack of progress in seeking improved conditions for him justified the termination of parental rights.
Lassiter was brought from prison to a parental rights hearing in August, 1978. The judge considered giving her more time to find a lawyer but concluded that she had had "ample time" to do so and had never formally stated that she was indigent. The chief witness was a social worker, who testified to the child's alleged health problems.
Lassiter than was given an opportunity to cross-examine. "All right," the judge said to her, "Do you want to ask her [the social worker] any questions?"
"About what?" Lassiter asked.
"About this child," said the judge.
"Oh, yes," she said. ". . . The only thing I know is what when you say. . . ."
"I don't want you to testify," the judge interrupted.
The hearing went on in this rambling manner until the exasperated judge asked her if she had any final remarks.
"Yes," Lassiter said. "I don't think it's right."
Justice Potter Stewart, writing for the majority, said yesterday that he though a lawyer would have made no "determination difference" in Lassiter's defense.
He acknowledged that a parent's interest in a decision to terminate parental status is "a commanding one." He also acknowledged that "accurate and just results are most likely to be obtained through the equal contest" between the state and the parents and that without a lawyer, "the contest of interests may become unwholesomely unequal" for the parents, especially since they 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."
"Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counse . . .," he said.
But outside of criminal cases, the court has chosen to leave the decision on appointing counsel to each individual judge using flexible standards promulgated by the Supreme Court, Stewart said. Those standards should continue to be the guiding force, he said. Lassiter's case does not meet the standards, he said.
Her case "presented no troublesome points of law," he said. No expert witnesses were called, who Lassiter might have had to cross-examine. She exhibited a lack of interest in attending the temporary removal hearing held in 1975 and did not make an effort to obtain her own lawyer, Stewart said.
"True, a lawyer might have done more with the argument that William should live with Ms. Lassiter's mother," he said. But "the weight of the evidence that she had few sparks of such an interest [in her son] was sufficiently great that the presence of counsel for Ms. Lassiter could not have made a determinative difference."
Blackmum, in his dissent, said a lawyer would have objected to hearsay testimony about Lassiter's fitness, would have conducted a careful cross-examination rather than making declarations, and "might have translated [Lassiter's] reaction and emotion into several substantive legal arugments."
Justice John Paul Stevens wrote a separate dissent.
The nude entertainment case, Schad v. Borough of Mount Ephraim, stemmed from complaints against a coin-operated device in an adult bookstore that allowed a customer to insert a coin and view a live nude dancer.
The operators were found guilty of violating a borough zoning ordinance that listed all permitted activies in the town and expressly excluded anything not mentioned. Lower courts had held that "live entertainment" of any kind was not mentioned and therefore illegal.
By doing this, the justices said yesterday in a 7-t0-2 ruling, "the ordinance prohibits a wide range of expression that has long been held to be within the protections" of the Constitution, Justice Bryon R. White wrote for the majority.
Nude dancing is, by itself, "not without its First Amendment protections from official regulation," he said. To restrict it, government must provide strong justifications and show that no reasonable alternatives to outright prohibition was available Mount Ephraim made no effort to do this, he said.
Burger, joined by Rehnquist, dissented. "The towns and villages of this nation are not, and shoiuld not be, forced into a mold cast by this court," they said. "Citizens should be free to choose to shape their community so that it embodies their conception of the 'decent life.'"
". . . . to invoke the First Amendment to protect the activity involved in this case trivializes and demeans" the First Amendment.
In other action yesterday:
The court sidestepped what was throught to be a major test of the constitutionality of affirmative action programs for state employes. The court rule 8 to 1 that the California case (Minnick v. California) it had earlier agreed to decide shouldn't be decided. The California courts need to complete their review of the issues, involving a minority hiring preference in the California correctional system, before the Supreme Court rules, the justices said.
In a voting rights case (McDaniel v. Sanchez) from Texas, the court ruled 7 to 2 that pre-clearance of election law changes by the Justice Department is required even when those changes were ordered by a federal district judge.
In a civil rights case (Gulf Oil v. Bernard), the court unanimously declared unconstitutional the increasing practice by lower courts of issuing gag orders preventing lawyers in class actions from communicating with people who might be eligible to join the class as an alleged victim of job discrimination.