www.loubar.org 10 Louisville Bar Briefs PROFESSIONAL EXCELLENCE Earl May Have Had to Die, But He Also Had the Right to Counsel Procedural Due Process in the Context of Domestic Violence Actions Ethan Chase Though I, personally, have no interest in the defense of the abusers of children and their family, I do—as all lawyers should—have an interest in ensuring that our system of justice provides adequately fair processes for adjudicating those cases to finality. Kentucky’s children deserve as much. Con- sidering the nature of the rights at stake in family court, those rights are among those afforded the highest constitutional protec- tions. In domestic violence actions in par- ticular, our family courts are confronted with intimate and complex problems affecting families. Mindful of rights so fundamental, Courts—and lawyers—must be vigilant of the sufficiency of due process afforded in these cases. The procedures currently af- forded to respondents in domestic violence actions, and respondent parents, especially, are insufficient considering the seriousness of the rights at stake. A. The Rule and its Exceptions. It is well-settled law in Kentucky that even an indigent civil litigant is not constitution- ally entitled to appointment of counsel, except in extremely limited circumstances. For example, if imprisonment is a potential consequence of civil contempt, then coun- sel may be appointed. Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993). Or, if a prisoner fails to defend a civil action brought against them, a guardian ad litem must be appointed for them before a judgment can be entered. Kentucky Rule of Civil Procedure (CR) 17.04; Davidson v. Boggs, 859 S.W.2d 662 (Ky. App. 1993). In 2021, our Supreme Court recognized another exception to this rule in holding that minor children also have the right to counsel when named as a party to domestic violence and interpersonal protec- tion actions. Smith v. Doe, 627 S.W.3d 903, 904 (Ky. 2021); CR 17.03. Nevertheless, our Supreme Court has accepted that, “the right to counsel is not afforded in a civil case such as a DVO hearing.” Gutierrez v. Com., 163 S.W.3d 439, 442 (Ky. 2005). Practitioners should realize that more recent caselaw concerning the various rights implicated in domestic violence cases—including the con- stitutional right to bear arms and the funda- mental right to the care, custody and control of one’s children—inform a constitutional mandate that requires one more exception to this rule. Additional procedural protec- tions, such as court-appointed counsel, are constitutionally necessary to ensure these fundamental rights in domestic violence proceedings. B. The Rights Implicated in Domestic Violence Actions Involving Children. The Supreme Court of the United States, in the case of District of Columbia v. Heller, held that the Second Amendment protects an individual’s right to possess firearms for certain purposes, including self-defense in the home. 554 U.S. 570 (2008). In McDon- ald v. City of Chicago, the Supreme Court expounded on Heller, holding the right to bear arms was a “fundamental” right. 561 U.S. 742 (2010). The Court reasoned that the Second Amendment applies both to laws imposed by the federal government and laws enacted at the state and local level by way of the due process clause of the Fourteenth Amendment. In New York State Rifle & Pistol Association v. Bruen, the Court resolved two of the questions left open following Heller and McDonald: (1) does the right to bear arms extend beyond the home, and (2) how are courts meant to assess a claimed infringement of the right? 597 U.S. 1 (2022). Ultimately, the Court held that the protections of the Second Amendment extend beyond the home, and announced the standard to assess Second Amendment challenges to firearm laws: when the plain text of the Second Amendment covers the regulated conduct, the Constitution presumptively protects it. To justify a regulation of that conduct, the government must demonstrate that a challenged law is consistent with the “historical tradition” of firearm regulation in this country. Id. The Court, of course, did not articulate which historical tradition or traditions lower courts were to look to when measuring whether a firearm restriction was violative of the Second Amendment. Most recently, in the matter of United States of America v. Rahimi, the Supreme Court (continued on next page)