Discretionary appointment of counsel - Incarcerated individuals

Litigation, Issues Related to Incarcerated People

The Illinois Supreme Court, interpreting the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, found that prisoners in Illinois jails were required to have meaningful access to the courts in civil matters, holding that “[w]hile the trial court is under no duty to appoint an assistant public defender to represent the [prisoners filing pro se civil actions], the trial court [does] not abuse its discretion in doing so.”  Tedder v. Fairman, 441 N.E.2d 311, 315 (Ill. 1982). 


In Tedder, 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.  Id. at 312-13.  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.  Id. at 313.  The Appellate Defender, arguing that “indigent prisoners had no constitutional right to appointed counsel in civil cases,” moved to withdraw.  Id.  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.”  Id.


The Illinois Supreme Court in Tedder, reversed in-part, noting the progression of prisoner rights at the federal level, and stated that although “[a] prisoner may be subject to certain restrictions on and limitations of many privileges and rights,” id. (citing Price v. Johnston, 334 U.S. 266, 285 [1948]), this does not mean he “forfeit[s] fundamental constitutional protections as the result of his conviction and custodial status.”  Tedder, 441 N.E.2d at 313 (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 443 U.S. 119, 129 [1977]).  Noting that “one guarantee which has become well established is a prisoner’s constitutional right of access to the courts,” the court relied on 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.”  Tedder, 441 N.E.2d at 314.  It reasoned that many prisoners lack education, are illiterate, or otherwise lack the necessary skills to interpret the law and champion their own claims, and thus are without access unless additional legal support is provided.  Id


The court declared that “[w]hile the appointment of counsel would undoubtedly measure up to [the meaningful access standard set by the United States Supreme Court], appointment of counsel is not the sole means of ensuring meaningful access.” Id.  The court noted further, “[w]e cannot find sufficient support in any of the United States Supreme Court holdings to say that an indigent prisoner has a constitutional right to appointed counsel in a civil suit either at trial or on appeal.”  Id. at 315.  Citing an Illinois statute[1] to support its holding that appointment of counsel, while not necessary, is not an abuse of discretion, the court held 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.” Id. at 315-16. 


[1] “The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.”  Tedder, 441 N.E.2d at 315 (citing 55 Ill. Comp. Stat. Ann. 5/34006 (West)).

Appointment of Counsel: discretionary Qualified: no