Don't know where I come out on this one. It's a toughie, and a multifaceted toughie, at that.
At issue is whether a party can represent himself at conservatorship proceedings; in other words, whether a person who is alleged to be incompetent can represent himself in an adjudication whose target is to take away that person's ability to control the vast majority of his own affairs. There, in my mind, strong arguments on both sides of that question. And, unfortunately, I don't think that the opinion by Justice Butz does a good job of addressing -- or even articulating -- those arguments. It's a pretty poor opinion on a very important topic. (And I say that with all due respect, having very much complimented Justice Butz -- here and here -- on both of the prior opinions of hers about which I've posted.)
The arguments both ways, in my mind, largely mirror the (hotly-contested) contemporary issues regarding whether someone can represent themselves at a criminal trial. Arguments in favor of "Yes": It's their life. It's their liberty at stake. They have a right to participate, and also to control their own destiny. Sometimes they may even be better than a professional attorney. Other times the actual outcome is largely preordained, and hence the value of participation deemed to outweigh the potentially adverse consequences. Automomy is good, and maybe even a right. Arguments in favor of "No": It's too important, both for the individual and society. They're not as good as a professional, and may even be incompetent (especially here). Paternalism is good. Can't risk it.
In the criminal arena, we've basically held that the "Yes" arguments prevail. That's probably the strongest argument in favor of a right to self-representation here. Because what's at stake in conservatorship actions (essentially, continuing liberty) is very similar to what's a stake in a criminal action; indeed, in many cases, an involuntary conservatorship would be much more of a deprivation than, say, the imposition of probation in a criminal proceeding. Justice Butz spends a lot of time on the analogy, but essentially just lists all the various cases and situations, and doesn't do much analytical work at all about what (if anything) rightly distinguishes the various settings. For a case that's basically one of first impression, that's very much not the way to go.
Perhaps Justice Butz, in the end, reaches the correct result. I'm not sure. But I am pretty positive that I don't like the superficial way in which she gets there, and that this process also makes me extremely unconfident in the outcome she reaches. Plus, can't we be a bit more creative here? For example, it seems to me, even upon a superficial glance, that there's a huge risk that the proposed conservatee is indeed incompetent; indeed, that this is the whole point of the proceeding, and -- as here -- the record may already provide a fertile basis upon which to make such a potential finding. If the record does, indeed, demonstrate such a basis, why not use that fact as a basis to find no right to self-representation, as (I think) incompetents don't have a right to self-representation even in a criminal case. But, if no such record exists, why presume that every defendant in a conservatorship proceeding is incompetent and deny them all the right to self-representation on that basis? Let's say that my wife, out of spite (or otherwise), initiates conservatorship proceedings over me. Do I -- a reasonably bright and, I'm pretty sure, not incompetent dude -- really have to turn my entire life over to the skills of a counsel who's appointed by state, whom I may not trust, and who may be much worse than I am? It would seem to me that I have the right to represent myself in such a setting. Sure, everyone else may not be me. But a conclusive holding like the one articulated by Justice Butz here nonetheless seems the wrong way to go.
So maybe I think that, even if the result reached by Justice Butz may be correct in many cases, her approach still articulates the wrong rule. At least that's my thought right now. Who knows; in 10 seconds, I may change my mind again. But, regardless, there's a lot more here that's worthy of discussion. And I wish that Justice Butz had taken the time to do so.
