What Do Judges Think of Civil Right to Counsel?
"In the criminal context, a defendant facing the risk of incarceration is, at the very least, entitled to an attorney as a constitutional right. There is, however, no such corresponding right in the vast majority of civil cases. Yet, civil cases deal with many matters that we hold perhaps just as dear as our own personal freedom, including custody of our children, our physical safety, our ability to work, and our need for shelter."
- Honorable Anna Blackburne-Rigsby, Associate Judge, District of Columbia Court of Appeals
The Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) passed a resolution calling on the establishment of "100% access to effective justice for essential civil legal needs." They then launched the "Justice For All Initiative" to make this a reality, and in their guidance materials commented that
Even with the most efficient triage and self-help systems in place, there will be many people who need full-scale representation in order to navigate the legal system and resolve their problems. This may be the case where a legal issue is particularly complex, where the stakes are particularly high (such as where a person is at risk of becoming homeless), or where mental health, age, or other capacity issues impede the person’s ability to fend for himself or herself ... [states should] consider … launching 'civil Gideon' programs for people facing certain critical civil issues.
As to specific subjects, COSCA released a white paper called The Demographic Imperative: Guardianships and Conservatorships that said, "In states where right to counsel has not been addressed, courts should take a leadership role in requiring the appointment of counsel to protect the rights of persons with diminished capacity.” And in 2017, COSCA issued a policy statement on child welfare cases that urged trial courts to ensure "the legal representation of children and parents in all child protection cases and at every stage of the case."
Access to Justice Commissions are court-created entities operating in many states. The Access to Justice Commissions in Arkansas, Maryland, Massachusetts, North Carolina, and Wisconsin have endorsed the concept of a right to counsel in basic human needs civil cases, while the commissions in California, Hawaii, New Hampshire, New Mexico, South Carolina, and Texas have studied civil right to counsel at one time or another.
Speeches, Opinions, and Litigation
A number of state court judges, both at the trial and high court levels, have spoken out in support of a civil right to counsel in basic human needs cases. In fact, the civil right to counsel movement was essentially kicked off by a 1997 speech by Robert W. Sweet, a federal district judge in New York, delivered to the New York Bar Association. In it, he referred to the need for a civil Gideon, that is, an expanded constitutional right to counsel in civil matters. Lawyers, and lawyers for all, are essential to the functioning of an effective justice system."
However, well before Sweet's famous speech, California Court of Appeal Justice Earl Johnson Jr. wrote a famous dissent in Quail v. Municipal Court (1985) in which he explored various grounds for recognizing a right to counsel in civil cases, including due process, equal protection, incorporation of English common law that had recognized such a right, and the court's inherent authority.
Some recent examples of justices speaking out:
- Massachusetts Supreme Judicial Court Chief Justice Ralph Gants endorsed the idea of a right to counsel for tenants facing eviction.
- Supreme Court of Mississippi Presiding Justice Jess Dickinson has "challenged access to justice advocates to push for extension of right to counsel for the poor to the civil arena."
- Justice Earl Johnson has written frequently in support of a civil right to counsel in basic human needs cases (including comparisons of how we fall short as compared to other industrialized countries), and in 2013 wrote an article detailing his career-long support for the issue in the Clearinghouse Review.
- In September 2014, the Legal Service Corporation's 40th Anniversary event featured a panel of state supreme court justices discussing access to justice issues. A number took the opportunity to discuss the civil right to counsel.
- The Chief Justice in Connecticut has charged the Connecticut Access to Justice Commission with studying the civil right to counsel in 2016. The Hartford Courant has more.
- Former Texas Supreme Court Chief Justice Wallace Jefferson, in speaking to Texas Public Radio in December 2015, said that in his view the right to counsel in basic human needs civil cases is "worth exploring" (and he noted that a number of states have already started this exploration).
Below is a sampling of some supportive writing by judges from courts at various levels. To see a complete list, check out our introductory bibliography section on judges writing about civil right to counsel.
State High Court Justices
- Anna Blackburne-Rigsby (Associate Judge, District of Columbia Court of Appeals), Ensuring Access to Justice for All: Addressing the "Justice Gap" Through Emphasis on Attorney Professionalism and Ethical Obligations in the Classroom and Beyond, in the 2014 Georgetown Journal of Legal Ethics
- Justice Jess Dickinson (Presiding Justice, Mississippi Supreme Court), A Look At Civil Gideon: Is There A Constitutional Right to Counsel in Certain Civil Cases?
- Denise Johnson (Justice, Vermont Supreme Court [Ret]), Bridging the Gap, in the 2006 issue of Appellate Judges News
Jon Levy (Associate Justice, Supreme Judicial Court of Maine), The World is Round: Why We Must Assure Equal Access to Civil Justice, in the 2010 Maine Law Review
Judge Jonathan Lippman, Essay: Shifting the Landscape on Access to Justice, 38 Cardozo L. Rev. 1159 (Feb. 2017).
Margaret H. Marshall (Chief Justice, Supreme Judicial Court of Massachusetts [Ret]), Provide Legal Support To Those Most Vulnerable, in the 2011 Boston Globe
Trial Level Judges
- Federal judge Jed Rakoff (Southern District of New York), Why You Won’t Get Your Day In Court, in the 2016 New York Review of Books
- Judge David J. Dreyer (Marion Superior Court, Indiana), Deja Vu All Over Again: Turner v. Rogers and the Civil Right to Counsel, in the 2013 Drake Law Review
- Leonard Edwards (Santa Clara Superior Court [Ret]), Engaging Fathers in the Child Protection Process: The Judicial Role, in the 2009 Juvenile and Family Court Journal
- Emily Jane Goodman (New York State Supreme Court), Facing Evictions – Without the Right to Counsel, in the 2008 Gotham Gazette
- Mark Juhas (Los Angeles Superior Court), On the Anniversary of Gideon, An Argument for Free Civil Representation, in the 2013 Los Angeles Lawyer
Some judges have gone beyond writing/speaking and have supported active litigation. In Washington, 16 retired judges from various levels filed a joint amicus brief to the Washington Supreme Court in 2007 in support of a right to counsel in contested custody matters, while in Wisconsin, 11 county judges joined an amicus briefs urging the Wisconsin Supreme Court to review a 2004 petition involving the right to counsel in family law cases.
The State Bar Associations give their support
In 2006, the American Bar Association unanimously adopted a resolution (co-sponsored or essentially adopted later by eighteen state and local bar associations) supporting the right to counsel in basic human needs cases. The ABA followed up in 2010 with two documents: a Model Access Act (which provides implementation suggestions for states establishing new rights to counsel), and Basic Principles of a Right to Counsel in Civil Legal Proceedings. These documents have been endorsed by a number of state bars. The state bar associations of Alaska, Boston/Massachusetts, New York, Minnesota, Pennsylvania, Philadelphia, San Francisco, and Texas have formed civil right to counsel task forces or committees.