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Panel Sympathetic to View That Non-Lawyer Should Be Allowed to Represent Her Children
But Three-Judge Ninth Circuit Panel Says It Is Bound by Precedent to Disapprove Appearance for Another Other Than by Attorney
By a MetNews Staff Writer
Children may not be represented in a legal action by a non-attorney parent, a three-judge Ninth U.S. Circuit Court of Appeals panel held yesterday under the compulsion of precedent, but the judges questioned the fairness of the rule where it shuts the courthouse door to would-litigants who can’t afford to hire a lawyer.
The opinion affirms a judgment in favor of a school district that was entered after a complaint brought by La Dell Grizzell on behalf of her three children, alleging racial discrimination, was dismissed with leave to amend and no amended complaint, drafted by a lawyer, was filed.
In her Aug. 12, 2021 order of dismissal, District Court Judge Cathy Bencivengo of the Southern District of California explained:
“Because Ms. Grizzell concedes that this lawsuit only concerns claims of her children…, the amended complaint is dismissed in its entirety. If the minor plaintiffs wish to proceed with their claims, they may do so only through an attorney licensed to practice in this court.”
She cited the Ninth Circuit’s 1997 decision in Johns v. City. of San Diego, written by Circuit Judge Sidney R. Thomas (now on senior status), for the proposition that “a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer.”
Thomas reasoned that it is not in the best interest of children that they be represented without counsel and that such representation would run counter to the general rule that a non-lawyer has no authority to appear as an attorney for anyone but herself.
Appellant’s Brief
Grizzell argued in her opening brief on appeal (prepared by an attorney with the UC Davis School of Law Civil Rights Clinic and two Virginia lawyers):
“Johns should be overruled. As this case vividly illustrates, it not only is profoundly wrong but has the perverse effect of producing wholesale denial of the very access to justice that it purports to be protecting…..Johns tried to sidestep that problem by suggesting that minors can just obtain pro bono counsel. But Johns both wildly overestimated the prospects of securing free legal representation for all minor plaintiffs and unfairly underestimated the capability of pro se parents to competently conduct their children’s lawsuits as the law entrusts them to do.”
The brief continues:
“The solution to scarcity in legal services cannot be to turn away plaintiffs like the Grizzells at the courthouse doors just because they are not fortunate enough to secure pro bono counsel. It also cannot be to delay adjudication of minors’ claims until they are 18, when limitations periods may have long since run and irreparable harms may have already come to pass. Instead, courts can and should apply all the usual practices to hold pro se plaintiffs to their burden, enforce applicable safeguards that secure the interests of minors, and facilitate the civil actions of legally untrained parties.”
It asserts:
“The Johns rule has no basis in law, it violates the Constitution, and it senselessly abridges the civil rights of our Nation’s most vulnerable. Poor children who suffer from injuries cognizable under the law—and who are otherwise fully entitled to legal relief—deserve better. Unless and until the en banc Court acts, an unknowable number of plaintiffs like the Grizzells will continue to have no way at all to pursue their claims, no matter their merit, for no other reason than because lawyers are expensive and their families are poor.”
Wardlaw’s Opinion
Circuit Judge Kim McLane Wardlaw wrote the opinion affirming the dismissal. Senior Circuit Judge Richard A. Paez and Circuit Judge Gabriel P. Sanchez joined in the opinion.
Wardlaw acknowledged that “Grizzell unquestionably raises concerns with grave implications for children’s access to justice” and observed that “several of our sister circuits have acknowledged concerns about the potentially harmful effect of an unyielding application of the ‘counsel mandate’ on children’s access to justice.”
She declared, however, that “[a]s a three-judge panel…we are bound by the rule set forth in Johns….Indeed, Grizzell concedes as much and acknowledges that the only path to relief in her case is en banc review.”
In a footnote, she said that Grizzell’s motion for a hearing en banc in the first instance is denied.
An en banc hearing can be granted upon a vote of a majority of non-recused active judges.
The case is Grizzell v. San Elijo Elementary School, 21-55956.
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