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October 1999The Right to Counsel as Developed In The United States Supreme Courtby Leonard Schroeter The thesis of last month's article was that not only is access to justice a fundamental right, but that it encompasses a right to counsel in civil cases, since our historic heritage of English constitutionalism, the Common Law, Magna Carta, and other charters of freedom, were adopted and incorporated into American jurisprudence. These were enhanced by the great American Scriptures: The Declaration of Independence and the Gettysburg Address, and by the essential concurrences of our more than 50 constitutions and declarations of rights, including the U.S. Constitution and Bill of Rights. There have always been differences of views as to what is fundamental and what are current political compromises on policy, but the Supreme Court must give fealty to the constitutionalism it applies. The best explanation as to why, for well over a century, the court paid so little attention to claims of right to attorney representation is that the Federal Constitution assumed that trials involving people's rights occurred in state courts. Virtually all civil litigation was in the states. Most criminal cases also occurred under state criminal law. It has only been in recent years that there has been a burgeoning of federal criminal cases, where the Sixth Amendment guaranteed right to counsel in federal courts. Supreme Court constitutional challenges of rights to counsel began after the Fourteenth Amendment was adopted. Thus, the Court developed its jurisprudence around the language and tests of Fourteenth Amendment phrases such as "due process," "privileges or immunities of citizens," and "equal protection," rather than the fundamental right of access to justice. These issues were impacted by the politically sensitive issues of federalism and separation of powers. Those structural constitutional provisions made it far easier for the Court to avoid the most fundamental constitutional principles — the rights of individuals: race (slavery), women's rights, class and caste (money power). The Court's avoidance became difficult only when the political pressure of the times compelled the long overdue recognition of fundamental rights. The Scottsboro Boys' Case — Powell v. Alabama The pioneer right-to-counsel case in American jurisprudence arose from one of the most shocking and outrageous criminal cases of the century, known as the Case of the Scottsboro Boys. On March 25, 1931, two young white girls claimed to have been raped on a freight train by six different "Negro" young men, in turn. At Scottsboro, Alabama, a posse seized the men, who were taken to the county seat. An angry crowd threatened lynching the blacks, who were all young, ignorant and illiterate. The trial judge stated that he had appointed "all the members of the bar" for arraigning the blacks and assumed they would help. No counsel appeared. Six days after indictment the trials began, but no one appeared to represent the defendants. Each trial was completed within a single day. Under Alabama's statutes, punishment for rape was fixed by the jury with discretion from ten years' imprisonment to death. The juries found all accused guilty and imposed the death penalty. The trial court overruled motions for new trials and sentenced the defendants to death. The Alabama Supreme Court affirmed the judgments. Public-interest constitutional lawyers represented the defendants in the U.S. Supreme Court, claiming denial of due process and equal protection under the Fourteenth Amendment. The Powell v. State of Alabama1 court held that the duty of the trial court was to ensure that there was no denial of any necessary criteria for a fair trial. The right to counsel was acknowledged by Alabama, as its constitution provided that in all criminal prosecutions the accused had the right to assistance of counsel. Furthermore, the statute required the court, in a capital case, to appoint counsel. The Court's historic review found that "if recognition of the right of a defendant charged with a felony to have aid of counsel depended upon the existence of a similar right at common law, as it existed in England when our Constitution was adopted, there would be great difficulty in maintaining it as necessary to due process. Originally, in England, a person charged with treason or felony was denied the aid of counsel except in response to legal questions which the accused himself might suggest." Justice Sutherland noted that the rule of common law prevailing when the state and federal constitutions were written, in the late eighteenth century, was that "parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel." It was not until 1836 that full rights of counsel were granted in respect to felonies in England. He wryly observed:
Sutherland documented that before the adoption of the Federal Constitution, the constitutions of Maryland, Massachusetts, New Hampshire, New York, Pennsylvania and Delaware had all declared "that in all criminal prosecutions every man hath a right to be allowed counsel." Similar provisions were extant in the rest of the Colonies and new states by constitution or statute. The federal constitution replicated this constitutional consensus as to basic rights of criminal defendants. Thus Sutherland reasoned that earlier precedent laid the basis for the incorporation into the Fourteenth Amendment of provisions in the Bill of Rights, stating that:
The Court held that the right to aid of counsel is not a right limited to criminal proceedings, let alone capital offenses. In civil courts, notice and hearing and an opportunity to be heard had consistently been described as "among the immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard." And
The Court's analysis, historic research and clear language made it clear that as of 1932, the right to counsel in both criminal and civil proceedings appeared to be beyond jurisprudential dispute. From Powell Through Gideon A quarter of a century passed with little jurisprudential change except constitutional recognition in contexts other than criminal capital cases. In 1938, Justice Black, for a unanimous court, held in Johnson v. Zerbst2 that the right to assistance of counsel was not limited to criminal capital cases. A unanimous Court reversed and remanded a federal prisoner who had sought a writ of habeas corpus because of his claim that he had been denied the right of counsel, guaranteed to him under the Sixth Amendment, after a finding that he had waived that right. But it was not until Griffin v. Illinois3 in 1956 that major attention was again riveted on issues of justice and poverty. Griffin had been convicted of armed robbery. He moved for a stenographic transcript of the proceedings to be furnished to him without cost, alleging no funds were available to pay for the documents. The United States Supreme Court reversed the Illinois denial of Griffin's appeal, holding that the petitioner's constitutional rights were violated. Justice Black held that the denial of the transcript violated both the due process and equal protection clauses of the Fourteenth Amendment. Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. This hope, at least in part, brought about in 1215 the royal concessions of Magna Carta: 'To no one will we sell, to no one will we refuse, or delay, right or justice.' … Both equal protection and due process emphasize the central aim of our entire judicial system.... Surely, no one would contend that either a State or the Federal Government could constitutionally provide that defendants, unable to pay court costs in advance, should be denied the right to plead not guilty or defend themselves in court. Such a law would make the constitutional premise of a fair trial a worthless thing. Notice, the right to be heard, and the right to counsel would under such circumstances be meaningless promises to the poor. What is essential to the Griffin decision is the Court's clear determination that meaningful access to justice is a fundamental right. That access includes the appellate process in circumstances where that process is seen as essential for fairness. Equal justice under law requires that government must not deny access available to others simply because of poverty. Seven years elapsed between Griffin and Gideon v. Wainwright.4 Gideon was charged with breaking and entering a poolroom to commit a misdemeanor. He had no funds and requested the court to appoint a counsel for him. He was denied by the judge because under Florida law counsel was appointed only in capital offenses. He was found guilty and sentenced to five years in the state prison. His habeas corpus petition claimed he had been denied rights guaranteed by the Constitution and Bill of Rights. Certiorari was granted. The question certified was: "Should this Court's holding in Betts v. Brady be reconsidered?" Justice Black amplified the statement of the issue by quoting Betts,5 holding:
Where and When Is Civil Representation a Fundamental Right? The linkage between the rights of criminal defendants and those in the civil justice system is evident under certain hybrid circumstances. One such a hybrid situation involved the rights of children. In In re Gault,6 a 15-year-old was taken into custody after a complaint that he had made lewd telephone calls. A juvenile court judge ordered him committed as a juvenile delinquent until majority to the state industrial school in Arizona. His parents challenged the constitutionality of the Arizona juvenile code. The state court dismissed and was reversed by the United States Supreme Court. Although juvenile proceedings in Arizona are not considered part of the criminal justice system, the constitutional guarantees of due process were applicable. The entire proceeding was informal, yet punitive. The juvenile judge conducted it in chambers, questioned the child, discussed issues with the witnesses, and made his decision. Gault's father was not there. The complainant who had reported the so-called lewd telephone calls was not there. No one was sworn. No transcript or recording was made. No memorandum or record of the proceeding was prepared. No notice of the hearing where Gault was committed to an institution until he was an adult was given. The "referral report" by the probation officers was filed with the court, although never disclosed to Gault or his parents. Immediately after the hearing, Gault was committed to the state industrial school for the next six years. No appeal was permitted by Arizona law in juvenile cases. At the habeas corpus hearing, there were essentially no records available, and most reliance was on what the juvenile judge had to say. The juvenile was taken from the custody of his parents and committed to an institution where the court had virtually unlimited discretion, under circumstances where the basic rights of notice of the charges, counsel, confrontation and cross-examination, non-self-incrimination, transcripts of proceedings and appellate review were denied. If this had been done to an adult, the violations would be clear. Yet the child was "a person," and "a citizen," and Justice Fortas, for the Court, noted initially that the Supreme Court had already held that the Fourteenth Amendment applied to juvenile proceedings, and that parental and child rights had been recognized. He traced the history of the juvenile court, where the idea of crime and punishment had been abandoned and the child was to be "treated" and "rehabilitated." This was to be achieved because the proceedings were not adversary, and the State was proceeding as parens patrii. But Fortas noted that juvenile court history had "demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure." On each of the deprivations of rights claimed, the Court ruled in favor of the fundamental character of the right. It could not be denied simply because Gerald Gault was a child. Justice Fortas's extensive scholarly decision is a handbook not only of children's rights, but rights of any person, because they have the protective panoply of our constitutional protections. Justice Black's concurrence is equally powerful. He stated:
Justice Black's comment referable to "a person, infant or adult" reminds us that the rights protected in the Bill of Rights are explicitly defined in terms of "person" (in the Fifth Amendment, "no person" and "any person"; and in the Fourteenth Amendment, "all persons"). With respect to the right to counsel, Justice Fortas ruled that as to the child, there is a "right" to be represented by counsel, a right extended to inmates, criminal defendants and others, as protected persons in the clear language of our Constitution. In Goldberg v. Kelly,7 the Supreme Court determined that when a state terminated public assistance payments to a recipient without affording him the opportunity for an evidentiary hearing, it was unconstitutional. Justice Brennan held that plaintiffs receiving financial aid under welfare programs have protectable constitutional rights that were violated by city administrative officials. The character of those rights was seen as substantially identical to that of those rights claimed by Gault. Goldberg had also relied upon a 1969 case which held that a garnishee had the right to be heard in garnishment proceedings, and that his rights were protected under Fourteenth Amendment procedural due-process requirements which were seen as fundamental principles.8 The court stated, "Relevant constitutional restraints apply as much to the withdrawal of public-assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner;9 or to denial of a tax exemption, Speiser v. Randall;10 or to discharge from public employment, Slochower v. Board of Higher Education."11 For Justice Brennan, the test for the court's analysis of constitutional protection is not who the right bearer is (the criminal defendant in a capital case or a misdemeanor, a "person" in an institution, a child, or a person whose interests are simply economic), but who is embroiled in an administrative structure that deprives him of his constitutional rights to due process or equal protection of the law. He explained the extensive reach of that right and stated that, "Moreover, important government interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding, the Nation's basic commitment has been to foster the dignity and well-being of all persons within its border." Welfare recipients and wealthy owners of property are entitled to constitutional protection. The question analyzed by Brennan was whether the competing governmental interests, for example, "in conserving fiscal and administrative resource," outweigh the constitutional rights of welfare recipients. He held that "these governmental interests are not overriding in the welfare context. There can be no differentiation as to right bearers because the interests being protected are economic or welfare." This is because "the fundamental requisite of due process of law is the opportunity to be heard." Hearing must be "at a meaningful time and in a meaningful manner… and in an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments in evidence. Often, that basic justice right will require an attorney. Since in almost every setting, where important decisions turn on a question of fact, due process requires an opportunity to confront and cross examine adverse witnesses." One year after Goldberg v. Kelly, the Supreme Court decided Boddie v. Connecticut.12 This was a class action brought on behalf of all female welfare recipients residing in Connecticut and wishing divorces but prevented from bringing such suits by Connecticut statutes requiring payment of court fees and costs for service of process as a condition precedent to access to the courts. Plaintiffs sought in U.S. District Court a judgment declaring the statutes invalid, and requested an injunction requiring the state to permit members of the class to sue for divorce without payment of fees and costs. The Court's decision was by Justice Harlan. It held that a state denies due process of law to indigent persons by refusing to permit them to bring divorce actions, except on payment of court fees or service of process costs which they are unable to pay. The fee and costs barrier restricted their access to the courts and violated their constitutional rights. They were unable to gain access to the courts to obtain a divorce simply by reason of their indigency. The Court ruled that:
Justice Douglas's concurring opinion is based "upon the principles developed in the line of cases marked by Griffin v. Illinois." He sees that view as one of affording equal justice to all, and special privileges to none in the administration of the law. He repeats like a worthy mantra that "there can be no equal justice where the kind of a trial a man gets depends on the amount of money he has." He sees the Griffin lines of cases as constitutionally correcting the evils of discrimination against the indigent. For him, the equal protection clause is the constitutional instrument for vindication of constitutional rights that have been denied. He is wary of the due process clause on which the Court relied in Boddie, because it "has proven very elastic in the hands of judges."13 Justice Warren was replaced by Justice Burger as Chief Justice in 1969. By 1972, Justices Black and Harlan were replaced by Justices Powell and Rehnquist. In a sense, Goldberg and Boddie were the high point of recognition of the fundamental right of access to justice. In several cases, narrow Court majorities rejected constitutional challenges based upon access to justice principles, where indigent litigants were denied hearings because they were unable to pay bankruptcy fees,14 or filing fees for appeal of an administrative old-age assistance denial.15 One exception was Bounds v. Smith,16 which arose from a § 1983 civil rights suit by inmates in North Carolina correctional facilities. They alleged they were denied access to the courts, in violation of Fourteenth Amendment rights, and specifically by the state's failure to provide them legal research facilities and legal assistance. The district court approved plans to achieve those goals, and the Fourth Circuit affirmed. In the Supreme Court's affirmation, it was held that the fundamental constitutional right of access to the courts required state prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing adequate law libraries and adequate assistance from persons trained in law. The Court recognized that "original actions seeking new trials, release from confinement, or vindication of fundamental civil rights" are an essential part of meaningful access, and habeas corpus and civil rights actions are of "'fundamental importance…. in our constitutional scheme' because they directly protect our most valued rights." Only two recent Court cases are helpful additions to the armamentarium of those lawyers and judges whose commitment to protection of fundamental constitutional rights still burns brightly. On May 20, 1996, the Supreme Court, in an opinion of Justice Kennedy, decided Romer v. Evans.17 Justice Kennedy in his opinion stated clearly:
Romer powerfully enunciated the central thrust of the idea of access to justice — the government's protection of the rights of the people by ensuring equal protection of the law.18 M.L.B., Petitioner, v. S.L.J.19 was the first parental rights termination case decided by the Court in almost 15 years, and one of a few that discussed access-to-justice principles or rights to counsel. In her extensive opinion, Justice Ginsburg cited, almost without exception, cases already discussed here, most probably because the political and judicial climate of hostility (on both the Burger and Rehnquist Courts) to the claims of the rights of poor people had precluded recent decisions in that field. The opinion carefully followed earlier precedents and picked its way through controversial minefields, securing consensus from the full Court. History is on the side of equal justice under law and the fundamental right of access to justice. There is no meaningful question that the right to counsel in all civil actions is as jurisprudentially correct as it is in criminal ones. But how can we understand what meaningful access to justice is? And how do we achieve it and keep it? In next month's article, we will attempt to see where we are in this state and hopefully suggest where we should be going in the new millennium.20 NOTES: 1 287 U.S. 45 (1932). 2 304 U.S. 458 (1938). 3 351 U.S. 12 (1956). 4 372 U.S. 335 (1963). 5 316 U.S. at 462. 6 387 U.S. 1 (1967). 7 397 U.S. 254 (1970). 8 Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). 9 374 U.S. 398 (1963). 10 357 U.S. 513 (1958). 11 350 U.S. 551 (1956). 12 401 U.S. 371 (1971). 13 Boddie is well worth re-reading. The constitutional viewpoints surfacing there continue to complicate the development of an appropriate jurisprudence today and played a key role in the subsequent right to counsel/access to justice cases in years ahead. 14 United States v. Kras, 409 U.S. 434 (1973). 15 Ortwein v. Schwab, 410 U.S. 656 (1973). See Schroeter, Civil Gideon: If Not, Why Not? for a detailed analysis of the Supreme Court's bitter internecine quarrels over these "poverty" cases, pp. 40 ff. 16 430 U.S. 817 (1977). 17 507 U.S. 620 (1996). See, for further description of Romer, Schroeter, ibid. ("The Jurisprudence of Access to Justice: From Magna Carta to Romer v. Evans via Marbury v. Madison," Trial News, June 1998). 18 The importance of superb appellate advocacy, and constitutional jurisprudence was evident here. The majority opinion was based upon the amicus brief of Laurence Tribe, rather than the constitutional grounds of the Colorado courts, or the attorneys directly representing the challengers. They had essentially relied on a conventional equal protection argument of disparate insular minorities. Tribe ingeniously changed it to the access to justice issue of the right to protection of government. 19 519 U.S. 102 (1996). 20 This is the second of three articles on the "Civil Gideon" issue. See Schroeter, Attorney Representation, An Essential Right, WSBA Trial News, August 1999. Next month's article will survey the Washington State Supreme Court decisions on this subject. See also Schroeter, Civil Gideon: If Not, Why Not? (Access to Justice 1999 Annual Conference, Wenatchee, Washington). See also Footnote 1 in last month's article for further details on this subject. The WSBA website (www.wsba.org/) can be visited to see earlier Schroeter articles on access to justice.
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