Human Rights at Home Blog

Civil Right to Counsel Updates

From John Pollock at the National Coalition for A Civil Right to Counsel:

Reports and Media on the Housing Right to Counsel Front

 

A report from the National Law Center on Homelessness and Poverty, Protect Tenants, Prevent Homelessness, "details the relationships between renters’ rights, evictions, and homelessness, highlighting issues low-income renters face and providing recommendations for improving housing security among vulnerable populations.” It contains a section on right to counsel authored by me that is part of the report’s analysis of how to stabilize housing by preventing unnecessary evictions.  As you’ve seen from other emails, there will be a webinar about this report on Thursday.  Here’s the link to register.

 

The Center for Social Innovation’s new report, Supporting Partnerships for Anti-Racist Communities, has some startling statistics on how people of color represent a disproportionate percentage of the homeless population, even when accounting for income. One of their solutions? "All individuals facing eviction in housing court should have appropriate representation.”

 

Finally, the NYC Office of Civil Justice’s 2017 report found that as a result of the City’s investment in housing representation, 70,000 New Yorkers kept their homes from 2014-2017, while evictions have declined 27% since 2013 and eviction filings dropped by 17,000 during that same period.

 

Elsewhere, NCCRC partner Hazel Remesch, who has a grant to pursue a housing right to counsel with Legal Aid Society of Cleveland, appeared on News 5 Cleveland to talk about the efforts in that city and how they connect with the national housing right to counsel movement.  Hazel also joined WCPN (a NPR affiliate) alongside a Cleveland housing court judge to talk about the way housing court works and the need for counsel in such cases (the WCPN discussion of housing court starts around the 13:00 mark).

 

Child custody

 

In New Jersey Div. of Child Prot. & Permanency v. S.D., 2018 N.J. Super. LEXIS 37 * (2018), there was an abuse/neglect case filed against a parent that was subsequently “interrupted” by the grandmother obtaining private custody.  The parent objected to the court addressing the private custody case and dismissing the abuse/neglect proceeding since she still wanted state services. The Superior Court held that "The court's technical designation of a hearing as FD [private custody] or FN [abuse/neglect] should not hamper the court's mission to safeguard the welfare of children.  When unusual procedures are undertaken, however, it is crucial to ensure that the parents are represented by counsel. Counsel are statutorily appointed for indigent parents only in Children in Court cases. N.J.S.A. 9:6-8.43(a), 9:6-8.30(a), 30:4C-15.4(a). Designating a hearing as a combination FD/FN hearing would ensure the participation of defense counsel and the Law Guardian, and should have occurred here."

 

Access to Justice and Child Poverty in Rural New Mexico

As the UN Special Rapporteur on Extreme Poverty tours the country during his official visit to the United States, we offer another in a series of blog entries on US poverty:

by Max Dismukes, Northeastern School of Law '19

Forget the archetype of the idyllic countryside: there are proportionally more people living in poverty in rural communities than in cities or suburbs throughout the United States.

Because it exists in remote, untraveled communities, the devastating realities of rural poverty can be invisible for those living in the country’s urban centers. As this map shows, the highest rates of rural childhood poverty cut a contiguous swath through the South, from Arizona to West Virginia.

Not only is poverty higher in rural places, but it is also more persistent, generation to generation. The metaphor of escaping poverty takes on its true meaning for rural Americans. Geography is destiny, and the only path to upward mobility so often leads away from home and toward the city.

Nowhere is the interplay between geography, poverty, and opportunity more salient than in New Mexico, with the highest rate of childhood poverty of any U.S. state at 29.9% (See table R1702). That rate is substantially higher in the state’s most remote, rural communities. For instance, in Columbus, NM, an isolated town of 1,200 on the U.S.-Mexico border that was famously attacked by Pancho Villa in 1916, 75% of children live below the poverty line (Search Columbus, NM).

Meaningful access to the civil justice system is a powerful tool for combating poverty. It is perhaps no wonder then that legal aid can be extraordinarily difficult to obtain for people living in places with the most persistent poverty. For every 10,000 New Mexicans, there are 26.6 lawyers, compared to the national average of 40.3. For every 10,000 New Mexicans living in poverty, there are 0.47 legal aid lawyers, compared to the national average of 0.64. The concentration of lawyers in Albuquerque and Santa Fe, where the density of attorneys actually exceeds the national average, masks the full extent of the shortage in the state’s rural areas. Half of New Mexicans, but less than one third of legal service providers, live in rural parts of the state. In Columbus, the nearest attorney is 33 miles away in Deming; and the nearest legal aid office is 92 miles away in Las Cruces (See here for citations and additional information).

 New Mexico Legal Aid (NMLA) is deeply committed to serving New Mexicans in every part of the state. Through remote representation, partnerships with pro bono attorneys, and other strategies, NMLA does much to compensate for its lack of neighborhood offices in every county.

Nevertheless, there is a significant shortage of attorneys willing and able to help New Mexico’s rural poor with their most pressing legal needs. This shortage is compounded by language barriers, great distances to the nearest courthouse, ineffective government agencies, and poor internet infrastructure. In turn, the lack of adequate social services exacerbates the negative socioeconomic effects that arise from an inability to redress any violations of legal rights through the civil justice system.

Despite serious humanitarian concerns, issues of rural poverty in the 21^st century are prone to the fatalistic argument that society is urbanizing, and it is not worth expending resources on dying rural communities. But is the abandonment of remote, rural places really a necessary corollary to progress? Looking abroad suggests that it is not. In Finland, for example, poverty and childhood poverty are virtually nonexistent, and this high standard of living extends with relatively little variation from Helsinki throughout the country’s rural north. Finland also provides publicly funded legal aid to its residents, both rural and urban, who need and are unable to afford representation.         

The lack of a right to civil counsel in New Mexico and the United States is a human rights issue. In the words of Gabriela Knaul, U.N. Special Rapporteur on the Independence of Judges and Lawyers, “legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights.” For families with children living in poverty, this is especially true. Not only are their immediate economic and social rights staked on the outcome of a given legal problem, but so too is their right to a life of opportunity and self-determination.  Defending against an eviction or securing back pay for stolen wages does not only keep a family in their home or give them the money to provide for their basic needs. It also prevents a downward spiral into homelessness and abject poverty that interferes with a child’s education, physical and mental health, and ultimately, her ability to lay the groundwork for a happy, successful life.

Providing a right to civil counsel, operationalized through a system of neighborhood legal aid offices extending throughout the state, would help New Mexico’s impoverished rural children to realize their right to equal opportunity. Lawyers have remarkable power, and legal aid provides hope for combating multigenerational poverty. This reallocation of power and the shifting of financial resources that accompanies each successful case has the potential to allow rural people to defeat poverty where they are, without having to escape from it.

States Expand the Civil Right to Counsel

While federal legal rights are being restricted for many people, states are slowly recognizing and expanding the civil right to counsel in matters involving significant rights.  John Pollock, expert on the civil right to counsel, and coordinator, National Coalition for a Civil Right to Counsel,  reports the following:

 

"In Guardianship of K.N., SJC-12195 (Mass. 2017), the Supreme Judicial Court of Massachusetts held that while guardians of children might be considered de facto parents in certain circumstances, their parenting interest was not a liberty interest justifying a due process right to appointed counsel in proceedings to remove the guardian.  

 

However, the court held that the Probate and Family Court could use its “broad” equitable powers to appoint counsel for an indigent guardian where it would assist in determining the best interests of the children or parental fitness, particularly 'where the child or legal parent may be unwilling or unable to present a full picture of the case to the judge, whether because the guardian has all the necessary and relevant information about the child or the legal parent has an incentive to withhold information.'”

 

For an earlier post on the civil right to counsel, see here .

NY Leads in Providing Counsel for All Threatened with Deportation

A collaboration of New York legal partners will provide every immigrant in upstate New York  threatened with deportation with a lawyer.  The New York state budget allocated $4 million to the New York Immigrant Family Unity Project to ensure that all NY deportees are represented by counsel.  Studies indicate that only 3% of unrepresented immigrants are successful in avoiding deportation.  Having counsel increases the chances of avoiding deportation by 1000%.

The coalition consists of Vera Institute, Cardozo Law School's Immigration Justice Clinic, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York and the Center for Popular Democracy.  Other partners in various areas of the state are the Eire County Bar Association Volunteer Lawyer's Project, Brooklyn Defenders Services, the Legal Aid Society, and the Bronx Defenders. Other cities are looking to form comparable partnerships to help immigrant families stay together.

Given New York City's provision of counsel for those being evicted, New York is becoming the national leader in the civil right to counsel movement.

 

Housing Not Handcuffs

The National Law Center on Homelessness and Poverty and the National Coalition for the Homeless were the creative forces behind the development of Housing Not Handcuffs.  HNH is focused on ending homelessness, but recognizing that a current barrier is the criminalization of living in public. As the number of homeless in our country has risen, so has the wave of laws that criminalize poverty.  
One absurd and punitive nature of laws criminalizing homelessness is to create criminal records for those who need housing.  Yet, the no-criminal records renting policy of many private and public landlords, deprives those whose housing need is greatest from achieving their goal of adequate and secure shelter.

HNH encourages localities to adopt policies that incorporate the goal of creating affordable housing as a way to end homelessness rather than short sighted and self-defeating arrests.  

Preventing unlawful evictions is another method of preventing homelessness.  Preventing eviction is tied significantly to the movement to provide counsel for those being evicted.  We have written before on the right to counsel and for more information see the website for the National Coalition for the Civil Right to Counsel. NCCRC is one of the HNH supporting organizations.

 

Effective Prevention of Homelessness Despite No Right to Counsel

In the face of overwhelming evidence that having a lawyer when a tenant is facing eviction evens the playing field for tenants, Mayor DeBlasio is not ready to endorse a human right to counsel in these circumstances.

In January, the Mayor announced a program to supply lawyers to those being evicted.  At the time, Mayor DeBlasio said:   "Providing legal assistance through the Office of Civil Justice is not just effective and efficient, it's the right thing to do to ensure equal justice for all New Yorkers."  Several boroughs' community boards have supported the right to counsel in eviction proceedings but the Mayor is not ready to take that leap, despite the overwhelming success of his program to provide counsel.  The tenant representation rate is now 27% compared with 1% in 2013.  The Mayor acknowledged huge savings by city in not having to provide shelter to the homeless families who can avoid eviction through the help of legal counsel.

Hope is in the air, however.  One headline reported that "More New Yorkers Facing Eviction Have Lawyers, But No Right To Counsel Yet."  The "yet" is hopeful.  Whether or not the right to counsel is formally endorsed, NYC is stepping forward to provide counsel in housing court evictions.  Given widespread support for the program, the right to counsel might quietly be endorsed without fanfare.  Time will take care of the formal acknowledgement of the right. 

 

 

 

 

 

 

 

 

 

Does the Right to Civil Counsel Include Effective Counsel?

The answer is:  not yet.  

SCOTUS is entertaining a cert petition that requests that the court address whether, when civil counsel is appointed, the party is entitled to effective assistance of counsel.   While your first response may be "Of course!" the answer may not be obvious in some jurisdictions, as reported on SCOTUSBlog.  While the Tennessee case in question is specific to termination of parental rights, if the US Supreme Court accepts the case for hearing, the court's decision could have a wide ranging impact on the quality demanded of court appointed lawyers in a range of civil cases.  As noted in yesterday's post, cases that address parental rights are those (at this juncture) that most easily are identified as triggering the right to counsel.  

The case is Vanessa G. v. Tennessee Department of Children's Services.  The statute in question is Tenn. Code Ann. Section 37-1-126(a)(2)(B)(ii)  which states in part "a parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving termination of parental rights[.]"  The Tennessee Supreme Court affirmed that parents are entitled to appointment of counsel in termination cases, but noted that nothing in SCOTUS' 1981 Lassister decision mandates that counsel be effective.  In so ruling the court also rejected the notion that the criminal standard of "ineffective assistance of counsel" must or need be imported to civil matters.  

With the concept of a civil right to counsel in matters involving fundamental human rights becoming more recognized, the Vanessa G. case, if accepted, could act as a guide to states as they struggle with redefining which civil cases demand the appointment of counsel and the level of skill litigants may expect when counsel is appointed.  We know what the answer would be in Massachusetts, which has already held that counsel must be competent.  But this may be the time for clarity on the national level.

When Access to Civil Counsel Becomes a Fundamental Right

As reported by John Pollock of the National Coalition for a Civil Right to Counsel, the Massachusetts Supreme Judicial Court in L.B. v. Chief Justice of the Probate and Family Court  recently ruled that parents have a due process right to counsel when seeking modification or termination of a guardianship of their children, provided that the parent "make a modest yet meaningful preliminary showing that he or she has a colorable case” for removal or modification.  This case was a followup to Guardianship of V.V., which recognized the constitutional right to counsel for establishment of such guardianships.  The NCCRC provided assistance to the petitioner and amici in both V.V. and L.B.

 

The decision expands the rights of parents to legal representation beyond cases of termination of parental rights or the appointment of a non-parent guardian.  The decision establishes the right to counsel when the parent seeks to change an existing guardianship, revisiting the possibibilty of the restoration of full parental rights or at least a modification of an exisitng guardianship.  The case sets out parameters for demonstrating the need for counsel and suggests specific guidelines for the lower court to consider to make the process of demonstrating need for counsel easier than what the Probate and Family Court had suggested.

 

The case advances the rights of litigants to appointed counsel in areas that have significant impact on their human rights and those of their families.  

 

For more information on the case, read here. 

 

 

 

 

 

MA case.

Russell's article.

Status Information on Civil Right to Counsel

John Pollock of the National Coalition for a Civil Right to Counsel announced that the organization has listings of all of the 2016 right to counsel bills filed in the state legislatures across the country.  Along with a summary of the bills, sponsors, current status and a link to the bill on Legiscan are part of the tracking done by the Coalition.  The listings are updated frequently.

 

The Civil Right to Counsel (Civil Gideon) has been at the forefront of US Human Rights legal work.  Advocates recognize that once individuals engage the US Justice system, litigants can fairly pursue justice only with competent legal advice and representation.   As the Coalition's website aptly states "You have the right to counsel - unless you are about to lose your home, your children or your healthcare".   Nowhere does the gap between the wealthy and those with limited resources become more apparent than in the legal system.  Even the vanishing middle class has limited options in retaining counsel when hourly bills can quickly reach $20,000.00 in a custody suit, and often much more than that.  Poverty easily can be the result of litigation where a homeowner may barely be meeting payments but becomes devastated by a lawsuit, health problem or other unexpected circumstances. If we want the legal system to not just be available to all, but be beneficial to those who engage the system, the process must address equity as soon as an individual enters the system. Justice can be achieved only if both parties are appointed counsel in those cases where the outcome could have serious, if not devastating, consequences to one or both of the parties.