Wednesday, October 21, 2009
ABA President Carolyn Lamm called for a constitutional right to counsel in civil cases involving basic human needs, a "Civil Gideon," in the President's Message in the October 2009 ABA Journal.
Lamm argues that Civil Gideon is a part of a broader strategy, including increased pro bono efforts and increased legal aid funding, in meeting dire legal needs in the current economic crisis:
But we must do much more. Lawyers and advocates nationwide have been working hard, with ABA support, for the right to counsel in civil matters where basic human needs are at stake—a “civil Gideon” policy. They are making progress case by case, state by state, jurisdiction by jurisdiction. Most recently, in the Alaska Supreme Court case of Office of Public Advocacy v. Alaska Court System, the ABA filed an amicus brief supporting civil Gideon. This fundamental right must be recognized by courts and legislatures—and fully funded.
The issue may come to the Supreme Court this term. Earlier this month, in a highly unusual move, the Court asked the Texas Solicitor General for views at the cert. stage on Rhine v. Deaton, a civil right to counsel case involving a Texas mother's private custody dispute with temporary foster parents. See more here and here. The Court has not previously recognized a categorical right to counsel under the federal Constitution; instead, it created a barrier to such a right under Fourteenth Amendment procedural due process in Lassiter v. Department of Social Services.
Lamm's article comes the same month that the state of California enacted legislation to provide for a pilot program providing a civil right to counsel in cases involving basic human needs. In the bill, the California legislature made its own finding that a civil right to counsel in these cases is supported by constitutional demands for equality and equal access to justice.
California now joins several states that, through their judiciaries or state legislatures, have arrived at similar conclusions. Perhaps the time is right for Civil Gideon to bubble up to the Fourteenth Amendment in Rhine.