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


Judicial Institutions

 

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.

 

Previously, 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.”

 

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:

 

 
  • 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


  • 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).

 

Academic Writing

 

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

 

 

 Trial Level Judges

 

 

Litigation Support

 

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.