Civil Gideon Sidestepped Maryland's high court declines to rule on whether a right to counsel should be extended to civil cases Advocates hoping for the first-ever court ruling establishing a right to counsel in civil cases were left disappointed when Maryland’s Court of Appeals declined to address the issue last December in Frase v. Barnhart. While the plaintiff prevailed on the particulars of her child-custody case, the state’s highest court declined to consider whether she had a right to counsel under the Maryland Constitution—ending speculation as to whether Maryland would become the first state to endorse a “Civil Gideon.”
Since 1963, when the U.S. Supreme Court issued its landmark ruling in Gideon v. Wainright, which established a constitutional right to counsel in criminal cases, public interest advocates have been looking for a way to expand the right to cover certain kinds of civil cases. The plaintiff’s attorneys, former Maryland Attorney General Stephen Sachs and Deborah Gardner of the Public Justice Center, spent nearly three years preparing for the case in the hopes of making U.S. legal history. “We asked the court to recognize that there was a constitutional right in cases involving fundamental rights and basic human needs,” Gardner explains. “We never advocated that there should be a right to an appointed lawyer in every kind of civil case. The court was asked to decide the scope.” Advocates fell just one vote short of seeing the Civil Gideon door swing open. In a concurring opinion, three of the seven Maryland Court of Appeals judges stated that there should be a right to counsel “in cases involving the fundamental right of parents to parent their children” (i.e., matters of custody and visitation). The concurring opinion written by Judge Dale Cathell was critical of the majority’s decision to duck the larger question, noting that “it is always easiest to decline to address controversial issues” and that eventually “the bullet will have to be bitten.” He wrote, “We can decline to address many problems. But, unlike many cases of a lesser nature, this issue will not go away…. The poor need a yes or a no.”
Both Sachs and Gardner believed a victory in Frase would have helped to mandate funding for the handful of legal aid programs that offer free legal counsel to Maryland’s poor. “Instead of going to Annapolis with hat in hand asking for what amounts to charity, we would be in the position to say, ‘This is a constitutional right,’” Sachs said. In Frase, Sachs and Gardner were seeking a remedy under the state, not federal, Constitution. They took this approach because of the 1981 Supreme Court ruling in Lassiter v. Department of Social Services, which was a major setback for Civil Gideon supporters. In a 5-4 decision, the Court held that under the Due Process Clause, “there is a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” That ruling prompted advocates to look at state constitutions and statutes for a remedy in civil matters. Sachs and attorneys at the Public Justice Center spent months exhaustively researching Maryland’s Declaration of Rights and found that it incorporated elements of English law that guaranteed indigents a right to counsel. “There is nothing new about the idea of providing legal counsel for those who cannot afford it, nor is there anything new about the idea that state constitutions might provide the constitutional remedy that has effectively been foreclosed at the federal level,” Sachs says. In Frase, Sachs believed he had found an ideal case to make the argument for a right to civil counsel. In Gideon, the Court decided that only the potential loss of liberty is an outcome serious enough to trigger a constitutional right to representation. But in the travails of young mother Deborah Frase, Sachs found a scenario arguably more harmful to parents than the loss of their liberty—the loss of custody and control of their children.
“One of the ironies,” says Sachs, “is that the court tends to help pro se litigants in family law matters, but they expressly say that if you are involved in a contested custody case, you really ought to get a lawyer. Well, that’s good advice, but our client and many others around the country are unable to benefit from it.” Gardner and Sachs both believe passionately that establishing a guaranteed right to counsel in civil cases is the only way that legal aid programs ever will be able to ensure that clients like Frase get the help they deserve. “I worked at the Legal Aid Bureau for 16 years, and I lived the day-to-day reality,” Gardner relates. “These programs do the best they can with extremely limited resources. They serve a great number of people, but they only represent those who are critically legally wounded.”
Of course, not everyone shares in the belief that extending the right to counsel to the civil sphere is necessary, or even advisable. Attorney Philip Howard, a partner at Covington & Burling in New York who has written extensively about civil justice issues, believes that establishing a universal right to counsel would open the floodgates to an endless stream of lawsuits in an already-too-litigious society. “The idea,” he contends, “is almost a formula for a meltdown of the economy. Any time anyone gets angry, they will say, ‘I want a lawyer.’ If a lawyer is available without cost, well, heaven help us.”
Gardner responds that courts can narrowly tailor the scope of a Civil Gideon to prevent overkill. She also noted that “at one time in this country, the notion of a free public education was thought to be prohibitively expensive. Now, we generally recognize that it is an extraordinarily important societal obligation.” Maryland’s high court was not the first court in the country to confront the Civil Gideon issue, nor is it likely to be the last. The Indiana Supreme Court ruled that a state statute entitled litigants to representation in civil cases, but the legislature quickly amended the act to allow judges to appoint counsel at their discretion. New York and Washington state also have heard cases involving the issue, but like the Maryland court, neither ruled on the underlying issue of a guaranteed right to counsel in civil cases. The New York court decided its case on procedural grounds, while the Washington court determined its case was moot after the plaintiff in a disability suit passed away before the court could rule on the merits. Despite these setbacks, advocates still find reasons to be optimistic. They point to the closeness of the 4-3 Maryland decision and the strongly worded concurrence as evidence that a breakthrough could be on the horizon. Sachs says, “If around the country, other states find under their state constitutions a right to [civil] counsel, somewhere down the line—I’m not talking about tomorrow morning—some advocate is going to encourage the Supreme Court to rethink Lassiter.” |
Frase
was a mother of four who had been incarcerated on a misdemeanor drug
possession charge. During the eight weeks she spent in jail, her mother
placed her youngest son, Brett Michael, with the Barnhart family from
Frase’s church. When Deborah was released and reclaimed her child, the
Barnharts sued for custody. “These were drive-by custody seekers,”
says Sachs. “They only knew the kid for six weeks.” Frase went to
several different legal aid offices to find an attorney to represent her
in the custody hearing, but she was turned away because of heavy
caseloads and staffing shortages. Frase, left to represent herself,
achieved mixed results in court. While she was found a fit parent and
granted custody of her child, the court ordered Frase to apply to live
in a homeless shelter and granted the Barnharts visitation rights.
