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IN THE SUPREME COURT OF IOWA No. 64 / 04-0981 Filed September 8, 2006 STATE PUBLIC DEFENDER, Plaintiff, vs. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.

Certiorari to the Iowa District Court for Polk County, Constance Cohen, Judge.

Plaintiff claims district court acted illegally in ordering state public defender to pay fees of attorneys appointed as guardians ad litem for parents in child-in-need-of-assistance and termination-of-parental-rights cases. WRIT SUSTAINED.

Thomas G. Becker, State Public Defender, and Julie Miller, Assistant State Public Defender, for plaintiff.

Linda Channon Murphy, Des Moines, for defendant.

2 TERNUS, Justice. The plaintiff, state public defender, challenges a district court order that required the state public defender to pay the fees of attorneys appointed as guardians ad litem for parents in several child-in-need-ofassistance (CINA) and termination-of-parental-rights (TPR) cases. He claims the statutes specifying costs payable from the indigent defense fund administered by his office do not authorize the use of this fund to compensate attorneys appointed as guardians ad litem for indigent parents in juvenile proceedings. The guardians ad litem, advocating on behalf of the defendant, concede there is no statutory authority for payment of their fees by the state public defender. They argue, however, that the parents they represented were constitutionally entitled to guardians ad litem, and therefore, the state is obligated to pay the guardians. They claim parents' due process right to a meaningful hearing and right to the equal protection of the laws are denied if impaired parents are not provided guardians ad litem. Upon our consideration of the parties' arguments, we conclude there is no statutory or constitutional basis to order the guardians' fees paid from the indigent defense fund. Therefore, we sustain the writ. I. Background Facts and Proceedings. This original certiorari action involves several cases filed in the district court pursuant to Iowa Code chapter 232 (2003) in which the state sought to have children declared in need of assistance or to have the parents' rights to their children terminated. In each case, the district court appointed an attorney and a separate guardian ad litem for one or both of the parents based on the parents' incompetency. The attorneys serving as guardians ad litem submitted their bills for services rendered in these proceedings to the state public defender for payment. After the state public defender refused to pay the guardians' fees, claiming they were not payable

3 from the indigent defense fund, the district court entered an order requiring the state public defender to pay the contested fees. The legality of that order is now challenged in this certiorari action. II. Scope of Review. Our review is guided by the following principles: A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise acted illegally . . . . "Illegality exists when the court's findings lack substantial evidentiary support, or when the court has not properly applied the law." Our review of the district court's action is therefore for correction of errors of law. State Pub. Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d 280, 282 (Iowa 2001) (citations omitted). "If constitutional issues are raised, however, we independently evaluate the totality of the evidence, and our review is de novo." Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 794 (Iowa 2004). We presume a challenged statute is constitutional. Id. The party making the constitutional challenge must "demonstrate there is no reasonable basis upon which the statute can be sustained." Id. III. Discussion. The state public defender argues the costs incurred for the compensation of a court-appointed guardian ad litem for an adult parent in CINA and TPR cases are not payable out of the indigent defense fund administered by his office. The guardians respond that because a guardian ad litem was constitutionally required in each case, the court is obligated to extend the coverage of the indigent defense fund to compensate the guardians ad litem. In addition, the guardians assert they served as

guardians ad litem with the understanding they would be paid pursuant to the contracts they had with the state public defender. See Iowa Code

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