Discretionary appointment of counsel - prisoners

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Litigation, Prisoners

In Tedder v. Fairman, 441 N.E.2d 311, 315 (Ill. 1982), two prison inmates filed pro se writs of habeas corpus and mandamus, and the same public defender was appointed by the trial court to represent each plaintiff. After both plaintiffs' petitions were dismissed and notices of appeals were filed, the trial court again appointed counsel, this time the State Appellate Defender, to represent each prisoner in his appeal. The Appellate Defender, arguing that "indigent prisoners had no constitutional right to appointed counsel in civil cases," moved to withdraw. Agreeing with the Appellate Defender that "indigent prisoners bringing suits of this nature have no right to appointed counsel, either at trial or on appeal," the court of appeals allowed the withdrawal and stated that "any appointed counsel would have to come from the private bar."


The Illinois Supreme Court noted that "one guarantee which has become well established is a prisoner's constitutional right of access to the courts," the court referenced the United States Supreme Court decision in Wolff v. McDonnell, 418 U.S. 539 (1974) for the proposition that "prisoners bringing such [habeas] actions also have a right to some form of legal assistance to ensure that their access to the courts is meaningful."  The court concluded that "once a circuit court, in its discretion, has determined that appointment of the public defender is appropriate to represent an indigent prisoner, limited to a grievance relating to the conditions of his confinement, then that assistant public defender is expected to exercise due diligence in proceeding with the assigned case."

Appointment of Counsel: discretionary Qualified: no