Monday, June 29, 2009

Update on a Civil Right to Counsel / The "Civil Gideon" Movement

Advocacy for a civil right to counsel (Civil Gideon) continues to move forward, as you'll see from these recent developments. "Gideon" (in Gideon v. Wainwright, 372 U.S. 335 (1963)) is a landmark U.S. Supreme Court case that gave poor people accused of crime a right to appointment of counsel. The Civil Gideon movement advocates for extension of that right where "other vital interests" are at stake for indigent civil litigants. Please forward this newsletter to anyone who might be interested.

Right to Counsel in AK Supreme Court

On May 21st the Alaska Supreme Court heard oral argument in Office of Public Advocacy v. Alaska Court System and Jonsson. As reported in the October and December 2008 issues of Civil Right to Counsel Update,the case involves an appeal of a ruling that counsel must be appointed for an indigent parent in a custody matter, under both the equal protection and due process clauses of the Alaska constitution. Ms. Jonsson's equal protection claim, which the Alaska Court System endorsed, was that the statute violated equal protection by denying parents a right to an appointed attorney when the opposing parent was represented by private, rather than publicly-funded, counsel.

Ms. Jonsson's pro bono counsel argued that the due process claim was not properly before the court but that the court might have to reach it anyway, as part of the equal protection argument. The statute treats parents like Ms. Jonsson, involved in custody cases against private attorneys, differently from those battling the state.

Most of the court's questions focused on three areas: whether a right to counsel could be inferred from the statute if a publicly funded party-guardian ad litem is in the case, whether the due process issue was properly before the court, and whether Ms. Jonsson was seeking a bright-line rather than fact-dependent ruling (and if so where the bright line should be drawn). On this last point, Ms. Jonsson argued for a "bright line rule" finding a right to counsel in every new custody case involving an unrepresented indigent parent and a private attorney, once the possibility of fee shifting has been exhausted. The court expressed concern that briefing did not sufficiently present the argument in opposition to a constitutional right to counsel. The court could avoid the constitutional issues by affirming the trial court's ruling that the statute confers a right to counsel when a party-guardian ad litem is involved and one or both parents are indigent. One week after oral argument the court asked for supplemental memoranda from parties and amici on possible mootness and on whether the due process issue is properly before the court.

for more information on the "Civil Gideon" Movement, visit the National Coalition for a Civil Right to Counsel by clicking on the title above;

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