Amicus continues to feature editorial posts written by one of CRCL’s new General Board members. Today’s post discusses a possible trend toward publicly funded counsel for the indigent in civil cases.
In October, California will become the first state in the country to implement a publicly-funded pilot program that provides appointment of counsel to very low-income persons in certain civil proceedings where basic human needs are at stake. While the Supreme Court ruled in Gideon v. Wainwright, 372 U.S. 335 (1963), that criminal defendants have a right to counsel based on the Sixth and Fourteenth Amendments, that decision does not extend to civil cases. The Court has found rights to counsel in only some civil cases, i.e. In re Gault, 387 U.S. 1 (1967) (civil juvenile delinquency proceedings), but has not yet extended the right to counsel more generally to indigent individuals in high risk cases where representation between parties is wholly unbalanced. California’s Sargent Shriver Civil Counsel Act (AB 509), signed by Governor Schwarzenegger in October 2009, marks a trend in a number of states to address this need for counsel in cases where basic human needs are on the line.1
Beginning this October, selected legal services organizations and affiliated courts in California will begin to implement AB 590’s pilot program that tests the efficacy of the right to counsel in certain civil cases – initially eviction defense, domestic violence proceedings and child custody or guardianship cases. The project attempts to expand the availability of legal services to the poor, which currently are woefully underfunded compared to the need.2
The implementation of AB 590 follows a Supreme Court decision this summer in Turner v. Rogers, 131 S. Ct. 2507 (2011), that found South Carolina is not required to provide low-income persons with counsel in civil contempt proceedings for lack of payment of child support. Using the framework of Mathews v. Eldridge, 424 U.S. 319 (1976), the Court found that the Due Process Clause of the Fourteenth Amendment does not automatically require appointment of counsel, even when a person is potentially subject to incarceration. Turner, 131 S. Ct. 2510. At least where the opposing party is also unrepresented and the State provides “alternative procedural safeguards,” the litigant’s due process rights are met. Id.
While the decision marks a slight setback for the right to counsel in at least one area of civil cases, the majority opinion in Turner did not resolve whether a right to counsel exists in civil proceedings when an unrepresented indigent litigant faces a represented opposing party in a case where basic needs are at stake. California’s program will offer important insight into what civil Gideon would look like and whether it is effective in providing better access to justice for low-income litigants.
1 In addition to California, Massachusetts and Texas are implementing privately funded pilot projects on a civil right to counsel. Many states have laws that require appointment of counsel in specific cases and circumstances. For more information, see http://civilrighttocounsel.org/advances/legislation/, http://civilrighttocounsel.org/advances/pilots/, http://www.brennancenter.org/content/resource/the_existing_civil_right_to_counsel_infrastructure/.
2 The Center for American Progress reports that the ratio of free legal service attorneys available to the number of low-income Americans that need one is 1:6,415. David Liu, Civil Legal Aid By The Numbers, Center for American Progress (August 9, 2011), http://www.americanprogress.org/issues/2011/08/civil_legal_aid_numbers.html.
David Liu, Civil Legal Aid By The Numbers, Center for American Progress (August 9, 2011), http://www.americanprogress.org/issues/2011/08/civil_legal_aid_numbers.html.
Debra Gardner and John Pollock, Civil Right to Counsel’s Relationship to Antipoverty Advocacy, Clearinghouse Review (July-August 2011), available at http://www.civilrighttocounsel.org/pdfs/CRTCantipoverty.pdf.
Gideon v. Wainwright, 372 U.S. 335 (1963).
Judicial Council Meeting: Minutes of the April 29, 2011, Meeting, San Francisco, CA, available at http://www.courts.ca.gov/documents/20110429jcminutes.pdf.
Julia Wilson, Executive Director, One-Justice and Legal Aid Ass’n of California, Address at the California Bar Foundation Scholarship Alumni Lunch, June 30, 2011.
Laura K. Abel and Judge Lora J. Livingston, The Existing Civil Right to Counsel Infrastructure, Brennen Center for Justice, Fall 2008, http://www.brennancenter.org/content/resource/the_existing_civil_right_to_counsel_infrastructure.
The National Coalition for a Civil Right to Counsel, http://civilrighttocounsel.org/ (last visited September 2, 2011).
Turner v. Rogers, 131 S. Ct. 2510 (2507).