Monday, September 28, 2009
The California Assembly earlier this month passed a bill, AB 590, to direct court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ." Under the pilot project, "proposals to provide counsel in child custody cases should be considered among the highest priorities for funding, particularly when one side is represented and the other is not." The LA Times on Friday encouraged the governor to sign the bill.
In passing the bill, the legislature made several key constitutional findings, including these:
The doctrine of equal justice under the law is based on two principles. One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life. The second principle involves access to the legal system. Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection. For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others.
Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel. A growing body of empirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail. . . .
Equal access to justice without regard to income is a fundamental right in a democratic society.
The U.S. Supreme Court has never gone so far. The Supreme Court has treated claims for civil counsel under the procedural due process test in Mathews v. Eldridge. The Court in Mathews determined the constitutionally mandated process by balancing the litigant's interest, the government's interest, and the risk that the process used would lead to an erroneous deprivation.
The leading case on the civil right to counsel is Lassiter v. Department of Social Services. In Lassiter, the Court rejected a poor litigant's claim for appointed counsel in a termination-of-parental-rights case. The Court ruled that poor litigants have a right to appointed counsel in civil cases only when the Mathews factors weigh so heavily in favor of appointment as to overcome a presumption that there is a right to appointed counsel only when personal freedom is at stake. (The Lassiter Court created this presumption; it nowhere existed as such in the Court's cases.)
Federal constitutional claims for civil right to counsel have always run up against Lassiter and its presumption. But litigants have successfully won a state constitutional right to counsel in several states under state due process and equal protection principles.
California, through its majoritarian processes and not its courts, now is poised to add itself to the growing list of states that recognize a constitutional civil right to counsel.
For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.