The Supreme Court’s 1963 decision in Gideon v. Wainwright guaranteeing low-income citizens the right to publicly funded defense lawyers in criminal cases had a momentous day in Philadelphia last week
On the same day, a group of private attorneys who take court-appointed cases representing indigent criminal defendants filed a federal lawsuit against the city of Philadelphia and its court system, claiming that the low rates of compensation for attorneys and other experts violate their clients’ constitutional rights. And the Philadelphia Bar Association’s Public Interest section and a similar group from the Pennsylvania Bar Association concluded a year’s worth of work by holding a plenary meeting about expanding the right for the indigents to have lawyers in civil cases.
The planning for the “Civil Gideon: A Right to Counsel in Civil Cases” gathering Thursday was kick-started following the American Bar Association’s passage of a resolution to expand the right for publicly-provided legal counsel in civil cases where low-income people’s basic needs would be adversely affected without having counsel.
Both the state and city bar associations passed similar resolutions to the ABA’s resolution. Karen L. Forman, pro bono counsel at Saul Ewing, and Marsha Levick, legal director at the Juvenile Law Center, have been chairing the 15-strong Philadelphia Bar Association group. Dveera Segal, an associate professor of law at Villanova Law School, chaired the 19-member Pennsylvania Bar Association task force.
“There’s a huge pro se population in our courts,” Forman said. “And it reaches epidemic proportions.”
Debra Gardner, legal director of the Public Justice Center in Baltimore and coordinator of the National Coalition for a Civil Right to Counsel, said the Civil Gideon movement started on a national level in 2003. In Maryland, the Civil Gideon movement started in 2000 with a project to seek the expansion through litigation of the indigent right to counsel on a broad basis in civil cases.
The movement is pursuing state-level efforts because of the conservative state of the U.S. Supreme Court and because of a lack of current desire to revisit a U.S. Supreme Court precedential decision with the current crop of justices, Gardner said. In the 1981 Lassiter v. Department of Social Services, the court ruled there is no 14th Amendment due process right in cases where the state seeks to terminate parental rights (the Supreme Court did hold a state court may appoint counsel), Gardner said.
“We’re urging people to think about what they can do in their states,” Gardner said. “I don’t think there’s a soul on this planet who thinks it would be wise to ask the current U.S. Supreme Court about civil rights to counsel.”
But given that the court has revisited issues about the legality of criminalizing sodomy and the execution of juveniles, Gardner thinks there will be a time to revisit Lassiter.
“We must have as the law of the land the rights to civil counsel in basic human needs cases,” Gardner said.
In the first test case of this effort in Maryland, Frase v. Barnhart, the court did not reach the issue of the right to counsel. But three judges in a concurrence said that they would recognize a constitutional right to counsel in some cases.
Gardner said her partners and she are looking for another “sympathetic contested custody case” where the court would have to address their constitutional civil Gideon arguments.
In other jurisdictions, Civil Gideon proponents will have to decide if they should start with an effort to enact legislation or if a court battle is the best tack, Gardner said.
In Maryland, the Civil Gideon’s legal arguments include:
* The Maryland Declaration of Rights is different from the federal constitution and has open courts and equal access provisions; the inability to afford counsel violates the right to access the courts.
* Under separation of powers, the judiciary is required to make sure the legal system of adversary justice works and that the indigent have access to counsel.
* That the Magna Carta and English common laws, which include the right to counsel for indigent civil plaintiffs with meritorious causes of action, apply to Marylanders because the constitutions’ framers intended that all English laws that existed on July 4, 1776, applied to Marylanders.
* The Maryland Declaration of Rights has a due process clause like the federal constitution, but that Maryland should reject the Lassiter decision.
Laura Abel, deputy director of the justice program at the New York legal think tank Brennan Center for Justice, said that an effort to expand the right to counsel in civil cases in New York started with the goal of finding “low-hanging fruit.” The goal, she said, was to find an area of law that wasn’t too controversial and in which a civil right to counsel could be established as a foundation for future efforts in other areas of law.
The New York low-hanging fruit: a bill has been introduced in the New York City Council to provide counsel for low-income, elderly New York City residents during eviction proceedings and foreclosure proceedings, Abel said.
Abel also noted that states have an uneven guarantee of counsel in civil cases, often limited to narrow situations (New York has a right to counsel in unemployment benefits case when the employer is appealing a decision in favor of the claimant.).
Pennsylvania already guarantees representation in some civil law situations, including counsel for people facing involuntary mental health commitments and counsel for children during involuntary termination proceedings of parental rights when one or both of the parents contest the proceedings.
But in housing matters and in child custody, Pennsylvania low-income citizens don’t have the right to lawyers and they can lose their rights if they are in a court case being litigated with a lawyer on the other side, Forman said.
State Rep. Kathy M. Manderino, D-Philadelphia, said that she hoped her remarks weren’t taken as a slam to the positive energy generated to the meeting. But she pointed out that any Civil Gideon effort in Pennsylvania must choose its tactics and targets carefully. A litigation approach might fail because prior court decisions ordering state funding for the court system have been ignored. “You can see where that got us,” Manderino said. “The Legislature basically ignores what the court says.”
– Amaris Elliott-Engel, Staff Reporter