Editor’s Note: Each year, the Minnesota Supreme Court Historical Society — in conjunction with the Minnesota State Bar’s Civil Litigation Section and the American Board of Trial Advocates – sponsors an essay contest that is open to all high school seniors in the state. Students compete for up to nine $500 scholarships. In May 2014, five students, who answered the following question, received scholarships:
Does equal access to justice for persons who cannot afford legal representation require a civil right to counsel in Minnesota under additional circumstances? If not, please state why. If so, what would those circumstances be?
This is one of those essays:
By Christopher Hofstadter
“Equal justice under the law” is the phrase etched into the Supreme Court of the United States that defines this nation’s judicial philosophy. It is this ideal that inspired Clarence Earl Gideon to write to the Supreme Court from his Florida jail cell, demanding an attorney. But for some inexcusable reason this philosophy does not apply in civil courts, which can see Brenda King, a mother with a ninth-grade education, forced into representing herself against her husband’s team of lawyers for custody of their kids, and have the presiding judge deem it a fair trial. Minnesota must expand the right to counsel in civil courts to include cases involving basic subsistence (food, shelter, and health care) and discrimination because the distinction between civil and criminal cases can often be minimal, counsel for indigent citizens will not only improve the efficiency of the court system, but save the government money, and it is time to honor this country’s commitment to international law.
The harsh reality for many indigent citizens facing a civil trial is that the difference between the court they are about to appear in and a criminal court is an abstract construction. Under current Minnesota law, a citizen charged with tagging a neighbor’s wall with graffiti is entitled to counsel if he or she cannot afford a lawyer. However, a citizen who stands to lose his home, a means to eat, or access to health care has no right to such counsel. Under the current system, civil courts are asking indigent plaintiffs or defendants to navigate a complex system of justice when they cannot even define what pro se means. After the 1963 Gideon ruling, no judge would think twice about appointing counsel for an indigent in a criminal case, but for some reason civil courts are thought to be more manageable. Perhaps Walter Mondale phrased it best, arguing, “The distinction between criminal and civil law can seem to be some kind of legal construct unrelated to real circumstances.”
A failure to provide counsel for all litigants in civil courts has come with its costs. First there is the issue of efficiency. In Philadelphia, Judge Lisa Rau observed, “half of the tenants and landlords [in landlord-tenant disputes] were self-represented because they could not afford a lawyer — and that bogged the system down.” Judge Rau even pointed to the fact that guiding litigants through civil proceedings “can be exhausting for judges.” Requiring indigent citizens whose knowledge of law rarely extends past free self-help clinics at government funded programs not only puts an unnecessary burden on judges, but on the already strained court system as well.
Opponents cite the actual monetary cost of providing counsel to all litigants as reason to refrain from expanding the Gideon ruling to civil courts. In its current form, the United States government appropriates a mere $330 million dollars for the LSC, or the Legal Service Corporation, whose goal is to assist indigent litigants in civil court. This amounts to a microscopic $2.25 annual per capita spending on legal aid. In comparison, England spends $32 on each citizen in the form of legal aid. According to estimates by Justice Earl Johnson of the California Court of Appeals, if the United States followed the English approach the annual budget for the LSC would be ten billion dollars, a miniscule portion of the country’s annual spending.
While the cost of providing counsel is important, it is often overlooked that providing counsel can often actually save the U.S government money. According to the New York State Bar Association, for every dollar that is spent on pre-eviction legal fees, New York City can save four dollars on city services such as homeless shelters. This same rationale can be applied to healthcare, as indigent citizens who lose their healthcare due partially to a lack of counsel are forced to seek treatment in emergency rooms, shifting an even greater burden on tax payers.
A lack of counsel for indigent citizens in civil cases further accentuates their poverty, which can cost the federal or a state’s government more money in the long run. According to the UN Rapporteur on Extreme Poverty, failure to provide counsel for indigent citizens in civil cases “increases their vulnerability to poverty and violations of their rights.” The Rapporteur goes on to say that a lack of access to a justice system further perpetuates poverty. The Yale Law Journal provides an example of this cycle when addressing predatory lenders. The journal makes the point that predatory lenders can devastate entire communities by providing loans with exceptionally high interest rates and the knowledge that the debtor will be unable to pay the loan or represent himself competently in a court of law.
Predatory lenders fit a larger mold of litigants who prey on impoverished minorities. In fact, in the United States indigent ethnic minorities are disproportionately affected by a lack of counsel in civil cases. For example, in Milwaukee black women make up just under 10 percent of the population. However, they account for 30 percent of evictions. The Convention on the Elimination of All Forms of Racial Discrimination, or CERD, was ratified by the United States and recommends “legal aid be given to enable victims of racism to more readily bring actions in court.” Furthermore, in an assessment on the United State’s compliance with CERD the committee noted “the disproportionate impact that the lack of generally recognized right to counsel in civil proceedings has on indigent persons belonging to racial, ethnic, and national minorities.” It is safe to say that the right to counsel in civil cases is not justice a question of fairness to indigent citizens, but has become an issue of racial equality.
The United States appears to be stuck in the Stone Ages when it comes to ensuring rights of indigent litigants in comparison to other developed nations. In fact, the U.S is the only “major Western nation that does not provide a right to counsel in civil matters.” What’s more, it sometimes seems that the U.S has actually gone out of its way to ensure Civil Gideon does not become a reality. The United States signed the Universal Declaration of Human Rights, which states, “Everyone is entitled in full equality to a fair and public hearing,” a phrase that is interpreted by almost all signers to include a right to counsel. Additionally, the United States is a member of the Organization of American States, a union that has ruled, “If a person who is seeking the protection of the law … finds that his economic status prevents him from doing so because he cannot afford the necessary legal counsel … that person is being discriminated against by reason of his economic status and, hence, is not receiving equal protection before the law.” It is time for the United States to honor its commitment to these agreements and establish counsel for indigents in civil cases.
Under current Minnesota law an indigent citizen wrongly kicked out of his home must navigate the civil court system alone to seek justice. An indigent citizen illegally dropped from her health care plan must do the same. It is long time for Minnesota to follow the lead of the international community and take a step toward fighting racism and improving its justice system. Minnesota must provide legal counsel to indigent litigants in civil cases involving issues of basic sustenance and discrimination because without that right, that famous phrase etched into the Supreme Court pediment is nothing but a baseless slogan.
Davis, Martha. “Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International La.” The Yale Law Journal (2013): 2262-2281.
Derocher, Robert. Access to Justice: Is Civil Gideon A Piece of the Puzzle? July 2008. 11 January 2014
Frank, Ted. The Trouble With the Civil Gideon Movement. August 2008. 12 January 2014
Legal Service Corporation. Fact Sheet on the Legal Services Corporation. 2013. 11 January 2014
Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1964.
Minnesota State Bar Association Civil Gideon Task Force. Access to Justice: Assessing Implementation of Civil Gideon in Minnesota. 2 December 2011 . 12 January 2014
Paoletti, Sarah. “Deriving Support From International Law For The Right To Counsel In Civil Cases .” Temple Political and Civil Rights Law Review (2006): 651-662.
Schneider, Mary. Trumpeting Civil Gideon: An Idea Whose Time Has Come? 1 April 2006. 10 January 2014
Toohey, Gary. A Civil Right to Counsel: Inevitable or Unrealistic. 2013. 11 January 2014