Saturday, April 3, 2010

A Second Chance at Equal Access to Justice

The Supreme Court has a second opportunity this term to rule on the right to counsel for indigents in civil cases, sometimes called “Civil Gideon,” with a cert. petition filed last week by an indigent state prisoner who brought a pro se civil rights case in federal court against state officials.  The case, Wilson v. Johnson, involves the federal statute that authorizes federal courts to appoint counsel to indigent civil litigants. The case raises the question: Is a federal court’s refusal to appoint counsel to an indigent civil plaintiff immediately appealable, or must the indigent litigant wait until the final judgment in the pro se case before appealing?

The issue is critical for indigent civil litigants seeking equal access to the federal courts.


The case arises from petitioner Lee Wilson’s federal civil rights suit against state officials under 42 U.S.C. Sec. 1983 for misreading his sentencing order and wrongfully incarcerating him five months beyond the end of his sentence.  Wilson moved twice for appointment of counsel pursuant to 28 U.S.C. Sec. 1915; the district court judge in the Eastern District of Virginia denied the motions (even after the Fourth Circuit appointed appellate counsel for Wilson in his appeal of the court’s earlier dismissal of his case). Wilson sought to appeal the denial, but the Fourth Circuit ruled that it lacked appellate jurisdiction, because the denial was neither a final order nor an appealable interlocutory or collateral order. Wilson filed his cert. petition with the Supreme Court last week.

The problem for Wilson and other civil litigants under the Fourth Circuit approach is that they have to wait until the district court enters a final order in the case until they can appeal the court’s order denying the motion to appoint counsel.  In the meantime, they have likely been out-gunned by an adversary represented by counsel—and thus denied equal access to justice.  Wilson’s case provides a good example.  He had to deal with an answer to his complaint that included 14 defenses and a 17-page legal memorandum supporting a motion for summary judgment without the assistance of counsel.  He could appeal the court’s denial of appointment of counsel only after he lost his case.  (Many unrepresented indigent civil litigants wouldn’t even make it that far.  Some would be bullied into an unfavorable settlement, others would not know how to appeal, and others would simply give up.)

Circuits are split on the question of immediate appealability.  Some, like the Fourth Circuit, hold that denial of appointment of counsel is not immediately appealable.  Others hold that it is.  The Ninth Circuit holds that denial of counsel is immediately appealable in some cases, but not in others.  The issue is unique in that every circuit has ruled on it.

However a circuit has ruled, however, the issue evades Supreme Court review.  In circuits that reject immediate appealability, the pro se litigant is unlikely to know that the circuit court’s dismissal for lack of appellate jurisdiction is appealable to the Supreme Court.  In circuits that permit immediate appealability, the pro se litigant has no reason to appeal, and the opposing party is unlikely to appeal.  (The opposing party’s only injury is the interlocutory appeal on whether the indigent party is entitled to representation.)  The case is thus an excellent candidate for Supreme Court review.

The case makes an appealing candidate for Supreme Court review for another reason.  The Court earlier this term denied cert. in Rhine v. Deaton, the Texas case involving an unrepresented mother and her quest for counsel in a private custody dispute with temporary foster parents.  (We posted on that case here and here.)  That case would have required the Court to reassess its ruling in Lassiter v. Department of Social Services (holding that indigent parents do not have a categorical right to appointed counsel under procedural due process).  Wilson, on the other hand, would allow the Court to validate the fundamental right to equal access to justice in a low-impact way, without taking on its own precedent.


Due Process (Substantive), Equal Protection, Fundamental Rights, News, Procedural Due Process, Recent Cases | Permalink

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Is the right to appointed counsel for civil cases common among developed nations? I am having a difficult time finding information regarding any such right in Western Europe, but it would be interesting to see where such a right has been recognized in one form or another.

Posted by: Steve Uhrich | Apr 6, 2010 12:39:12 PM

I always found it incredible that criminals had a right to council but not lawful citizenry in civil cases.
Essentially, it is the ‘law’ arm of Government saying citizens are not entitled to their Constitutional and current legal Rights. carol

Posted by: carol budro | Apr 8, 2010 6:33:32 AM

Dear Steve and Carol,

Thank you for your comments.

Steve: There is support in international law for a civil right to counsel. Check out Sarah Paoletti's 2006 piece in the Temple Political and Civil Rights Review titled "Deriving Suport from International Law for the Right to Counsel in Civil Cases." It's at 15 Temple Pol. & Civ. Rts. L. Rev. 651 (2006).

Carol: This is exactly the intuition that drives the "Civil Gideon" movement. For more, check out the National Coalition for a Civil Right to Counsel, at


Posted by: Steven D. Schwinn | Apr 9, 2010 9:21:27 PM

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