PJC In The News

Civil Gideon Spreads its Wings

The following article in the Daily Record highlights the efforts of the Public Justice Center's multi-year effort to establish a right to counsel for poor people in civil cases.  We refer to this right as the "civil Gideon" -- a take off on the case of Gideon v. Wainwright in which the Supreme Court held that a defendant in a criminal case has a right to a lawyer.  The article discusses the National Coalition for a Civil Right to Counsel, led by our Legal Director Debra Gardner (pictured below, with a photo of the PJC staff in the background).  Also discussed is the PJC's ongoing effort to find the next Civil Gideon test case in Maryland by the Appellate Advocacy Project, which is staffed by Appellate Director Suzanne Sangree and Murnaghan Appellate Advocacy Fellow Roscoe Jones, Jr..

‘Civil Gideon’ spreads its wings

March 10, 2006
Daily Record Legal Affairs Writer

PJC leads national effort while looking for test case here

Debra Gardner, legal director of the Public Justice Center, says federal courts may reconsider whether there is a constitutional right to counsel in civil cases if state courts take the lead. ‘And then it would become a right guaranteed to everyone throughout the country,’ she says.

More than two years after Maryland’s top court declined to consider whether indigent defendants have a right to counsel in civil matters, one legal services provider remains determined to keep the issue alive.

The Public Justice Center now seeks to wage its battle on multiple fronts after a partial defeat in December 2003 in its test case, Frase v. Barnhart. Deborah Frase won the child custody dispute, but a majority on the appellate court declined to reach the key question about her right to court-appointed counsel in the civil trial.

While the center spends considerable time on its highest priority of bringing a second test case in Maryland, it has directed much energy recently to a national strategy with advocates in other states trying to bring similar cases under their own constitutions.
“We thought that if a number of states’ highest courts would say, ‘we think our constitution requires it, we think our due process clause requires it or other provisions in our constitution require it,’ then maybe the federal courts would take another look at whether the federal Constitution also required it,” PJC legal director Debra Gardner said about the long-term national plan. “And then it would become a right guaranteed to everyone throughout the country.”

Indigents already are guaranteed representation in criminal matters, but civil matters are left to underfunded legal services providers, which are able to meet only 20 percent of the need, according to Gardner.

The concept of a “civil Gideon,” named for the 1963 Supreme Court ruling establishing the criminal right to counsel, would extend that right to certain civil matters with the potential to impact fundamental rights. These include child custody disputes, evictions or foreclosures, domestic violence proceedings and loss of government benefits.

Success with a national approach might ultimately persuade the Supreme Court to revisit its 1981 decision in Lassiter v. Dept. of Social Services, which found the federal Constitution does not guarantee the right to legal representation in civil cases.

“In my mind, that has to be based on hearing that a number of [state] courts have made this kind of decision under their constitutions,” Gardner said. “Because [the Supreme Court] already said it’s not enough, in their view, that a lot of states provide this right by statute. That didn’t persuade them in Lassiter.”

Plugged in

Gardner and her colleagues at the center organized the National Coalition for a Civil Right to Counsel in 2003, just before the Frase decision came out. The informal alliance has since grown to include nearly 120 legal services providers, academics, private bar and state bar representatives hailing from roughly 35 states. All are plugged in with an e-mail listserv and monthly conference calls.

In these forums they coordinate and keep each other abreast of developments in their respective states.

Most recently, for example, a coalition member in Washington state filed notice of appeal in a child custody dispute. Another lawyer in Wisconsin just filed a motion to have that state’s highest court hear arguments based on the Wisconsin constitution. Also, a group in California is drafting legislation for a statutory right to counsel it hopes will serve as a generic model for states as they consider what a statutory right to counsel might look like.

The coalition also has developed ties with the American Bar Association, according to Gardner. Members approached the association with a draft resolution for a policy on a civil right to counsel.

Access to civil justice has been an issue close to ABA President Michael S. Greco’s heart for some time, he said. So, soon after assuming his year-long post in August, he set up a task force to consider ways to improve access for the poor. That panel may recommend the policy resolution to the association’s annual House of Delegates meeting this summer.

Chief Judge Robert M. Bell and former attorney general Stephen H. Sachs, who argued the Frase case on behalf of the PJC, represent Maryland on the ABA task force.
While Greco said he is not intimately aware of the PJC’s national efforts, he did regard Gardner as “highly respected” in the realm of civil justice for indigents.

“A good idea becomes even better when a lot of people buy into it,” he said of the National Coalition for a Civil Right to Counsel, with which he was familiar.

Gardner and others in her organization have become regular speakers on the legal service providers’ conference circuit. At the end of this month she will make a presentation at a civil Gideon symposium hosted by the University of Pennsylvania in collaboration with an annual ABA/National Legal Aid and Defender Association Equal Justice Conference.

Meanwhile, back in Baltimore, PJC staff attorneys are regularly reviewing court records and interviewing prospective candidates for another Maryland test case that “squarely presents the issue” for the courts.

Picking the perfect Maryland case remains one of the toughest challenges.
Frase involved several complex constitutional issues on which the Court of Appeals chose to focus, Gardner explained. But if her organization can take to court a straightforward custody case and argue that the appellant lost because he or she didn’t have a lawyer, “the court will have to decide that issue. It won’t be able to decide the case on another basis,” she said.

If the courts ever do decide in favor of a civil Gideon in Maryland, they may apply the ruling only to the type of case before it, such as a child custody matter.

“Courts often proceed that way,” Gardner said. “They don’t typically decide issues that aren’t right in front of them and that’s completely understandable.”

Her organization may have to file a series of cases, she said. Or, the court may refer the matter to its rules committee to determine the types of cases to which the ruling applies.

Paying the price

The right to a lawyer for civil cases predictably would carry with it a higher price tag for the state.

Maryland legal service providers currently receive about $45 million in funding annually to manage all types of civil matters for the poor, including those few mandated by the state, said Susan M. Erlichman, executive director of the Maryland Legal Services Corp., which administers some funding to those organizations.

When Frase was in the courts, Erlichman’s predecessor calculated that a mandate would cost as little as $12 million to $15 million more each year. But Erlichman guessed that number would probably be higher now, even using the assorted services available from legal service providers’ staff, pro bono attorneys, pro se clinics and hotlines.
“There’s no question it will require more funding,” she said. “But we’re spending so little on a service that’s really critical for people’s basic well-being and the health of our communities and families and children. We can do much better, with or without civil Gideon.”

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