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 Alex Long
On Oct. 11, 2013, Dan Perucco returned from work to his Ventura Village home in south Minneapolis and discovered a bright orange eviction notice plastered to the front door. Mr. Perucco and the other six residents of the home volunteer for the Lutheran Volunteer Corps, an organization committed to sustainable living. The residents pay their rent on time and keep the structure in good condition, but are being evicted based on ordinances that limit the number of inhabitants in the six bedroom home to three people. Mr. Perucco and his housemates believe the cause for the eviction is unjust and, along with the support of more than 50 community members, are attempting to block the eviction. In a subsequent newspaper commentary, he voiced his frustration of the process:
At its heart, the bureaucratic nightmare of the zoning variance process is a social-justice issue, and I am angered that this same problem could befall another unwitting group of renters. And what if they are not lucky enough to be predominantly white, middle-class, educated young adults with an entire organization willing to provide alternative housing? (C9)
Mr. Perucco’s situation is not unusual. In Gideon v. Wainwright the U.S. Supreme Court ruled that state courts must provide counsel in criminal cases for defendants who cannot afford an attorney (Gideon). The court has not extended this ruling to civil cases, which would include housing-related issues like Mr. Perucco’s. This leaves each state to decide what assistance, if any, is accorded to civil parties. Currently, Minnesota has no statutes that provide the right to counsel in civil housing matters (Dorsey 4).
Access to housing is an essential human right and a fundamental element in a person’s ability to define their privacy. Losing those rights due to a lack of affordable representation is unjust, unfair, and potentially devastating to a vulnerable segment of society. Providing legal assistance to indigent clients can make a difference between sustainable living and homelessness. This extension of Gideon v. Wainwright is an affordable solution supported by a vast majority of Americans. Therefore, the right to counsel should be extended to individuals who need representation in civil housing cases.
Justice inequality in housing is a significant problem for impoverished Minnesotans. In 2012, there were 22,165 unlawful detainer cases filed in Minnesota courts (Minnesota Judicial). Those numbers do not include lock-outs, shut-offs or other illegal evictions, nor do they include foreclosures involving the poor. Due to the nature of this action many of these tenants cannot afford legal counsel. As in Mr. Perucco’s case, access to justice depends on finding free legal assistance or the ability to represent oneself pro se. In Minnesota, of the eligible clients seeking legal aid services for housing-related matters, only sixty-eight percent are served (Minnesota State Bar 5).
Successful evictions can lead to homelessness. Evictions are filed as public records which can show up on tenant screening reports. This makes it difficult for tenants to secure subsequent housing. A 2012 study by Wilder Research shows that 29 percent of homeless Minnesotans reported losing their housing due to eviction or lease renewal, and 36 percent reported failing a background check as a major barrier to finding housing (22). The study further reported that a major factor contributing to homelessness was a lack of affordable housing. Subsidized housing represents an alternative for the homeless, but those denied such housing have no right to counsel if they believe the denial was unjust.
The demographic makeup of homeless individuals makes it unlikely they can provide their own legal defense. Twenty-three percent have not graduated from high school, one-third have diminished cognitive capacity, and half suffer from a physical or mental disability (Wilder 16).
Throughout the world and in Minnesota, access to housing is recognized as a fundamental human right. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, states, “Everyone has the right to a standard of living … including food, clothing, housing and medical care” (1). The Fourth Amendment to the U.S. Constitution explicitly protects rights within the context of the home, including protection against unreasonable search and seizure. Minnesota’s “Castle Law” (Minn. Stat. § 609.065) provides an affirmative defense for taking a life if one is “preventing the commission of a felony in the actor’s place of abode” (Office of the Revisor). These laws illustrate that a person’s home is a critical element in defining their rights under the law.
Some jurisdictions already have established a right to counsel in civil housing cases. In March of 2012, San Francisco passed an ordinance creating a one-year pilot program that would provide free counsel to poor persons whose case touches on basic needs such as housing, safety or child custody (San Francisco). The Philadelphia Bar Association’s Board of Governors endorsed similar programs that highlight the need for counsel on issues of basic needs, including eviction, foreclosure, and custody (2).
The most fundamental part of our legal system is its ability to change. The Fourteenth Amendment, ratified in 1868, guarantees that everyone be afforded equal protection under the law. It was not until Gideon v. Wainwright, nearly 100 years later, that these rights were extended to criminal defendants. While Gideon v. Wainwright deals strictly with criminal cases, the spirit of the amendment is that justice is practiced equally, without respect to race, poverty or other bias. Extending the concept of equality in justice for civil cases involving fundamental rights is an evolution of that law.
Public opinion supports the idea of civil Gideon. A nationwide survey involving 1200 adults studied public attitudes toward legal aid. That survey found that 89 percent of Americans agree that legal help for civil matters should be provided for low income people (Belden). In California, a similar study asked respondents if poor people were afforded free representation in civil matters. Seventy-nine percent believed, incorrectly, that a right to counsel already existed (California). These results suggest there is popular support for the concept of equal justice for the poor. The Belden study also found that promoting the idea of equal access to rights regardless of income was a “most compelling” message that resonated across a broad range of political and demographic groups.
The primary counterargument for civil Gideon is cost. San Francisco’s pilot program costs were kept low by providing funding assistance through existing legal aid services. The program was funded using a $10 increase in court fees, a funding plan that received bipartisan support (Williams). American support of civil Gideon declines slightly when government funds are used: 82 percent still agree the poor should have representation and 42 percent strongly agree (Belden). These sentiments echo those of our justice system. Upon prosecuting defendants, the state does not limit costs associated with a trial.
The time has come for Minnesota to extend the right of counsel to all people seeking to maintain access to their homes. Legal assistance for poor tenants is appropriate and necessary to ensure that we do not deprive them of this basic human right. In support of Gideon v. Wainwright Justice Black wrote that the “noble ideal” of justice was “fair trials before impartial tribunals in which every defendant stands equal before the law.” Until we can extend the right of council to civil matters, that ideal will remain unreachable.
Belden Russonellow & Stewart. “Developing a National Message for Civil Legal Services: Analysis of Ntional Survey and Focus Group Research.” May 2000: 62. Web. 4 January 2014.
California State Bar Report. “Bar Survey Reveals Widespread Legal Illiteracy,” California Lawyer November 1991: 68. Print.
Dorsey & Whitney LLP. “The Right to Civil Counsel Under Minnesota Law.” 11 September 2008: 19. Web. 28 December 2013.
Gideon v. Wainwright. 372 U.S. 335, 344. Supreme Court of the United States. 1963. Web. 19 December 2013.
Minnesota Judicial Branch, State Court Administrator’s Office. “2012 Annual Report to the Community.” March 2013: 49. Web. 28 December 2013.
MN State Bar Association’s Civil Gideon Task Force. “Access to Justice,” 2 December 2011: 85. Web. 28 December 2013.
Office of the Revisor of Statutes. Chapter 609, section 065. 2013. Web. 28 December 2013.
Perucco, Dan. “Evicted, most likely, by the letter of the law.” Minneapolis Star Tribune 11 December 2013: C9. Print.
Philadelphia Bar Association Chancellor’s Task Force on Civil Gideon. “2012 Report to the Board of Governors.” November 21, 2012: 1. Web. 4 January 2014.
San Francisco Administrative code. Article 58, sections 58.1 through 58.3. March 06 2012: 1. Web. 4 January 2014.
United Nations General Assembly. “The Universal Declaration of Human Rights,” 10 December 1948: 1. Web. 29 December 2013.
Wilder Research. “Homelessness in Minnesota.” September 2013: 60. Web. 28 December 2013.
Williams, Carol. “California gives the poor a new legal right,” Los Angeles Times 17 October 2009. Web. 4 January 2014.