A Qualified Civil Gideon

Loffredo and Friedman on Qualified Civil Gideon
Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro Law Review issue on the right to counsel in civil cases, "Civil Gideon," in New York. This is a fresh perspective on a critically important issue; I highly recommend it.

Loffredo and Friedman's piece joins an increasing academic and practice-oriented literature and a coordinate body of litigation that sometimes goes under the name "Civil Gideon" and sometimes under "civil right to counsel." In truth, "Civil Gideon" doesn't quite capture the movement--this is really about more than simply applying the right to counsel established in Gideon v. Wainwright to civil litigants. "Civil right to counsel" is a broader, better name to capture a movement that seeks counsel for poor litigants in an orchestrated effort in state legislatures, administrative agencies, bar associations, law firms, legal services offices, and even law schools, as well the courts.

Insofar as the movement seeks to establish a constitutional right to counsel through the courts, however, it continually runs up against Lassiter v. Dep't of Social Services. That case held that a poor parent didn't have a categorical right to counsel in a state-initiated proceeding to terminate parental rights under the Due Process Clause. The Court weighed the balancing factors in Mathews v. Eldridge against a newly created presumption against counsel in civil cases. Given the importance of parental rights (Mathewsfactor 1.) and the high probability of an erroneous termination of parental rights without counsel (Mathews factor 2.), a parental rights case seemed the best type of case through which to press a civil right to counsel under a procedural due process theory. The Court's rejection in Lassiter therefore poses a significant barrier for poor litigants seeking counsel in other kinds of claims (like welfare) and, more generally, a significant barrier for the civil right to counsel movement.

Loffredo and Friedman argue that Lassiter and Goldberg v. Kelly representan underenforced constitutional norm for the right to counsel. That is: The Court's refusal to declare a due process right to counsel "stems principally from institutional and separation of powers concerns pertaining to the limited role and capacity of the judiciary," and that it therefore "ought not be regarded as [a] definitive statement[] of the full meaning and scope of constitutional due process."

Loffredo and Friedman argue that legislatures are not so constrained. Their move, then, is to turn their argument to the legislature. They argue that the state legislature, as a matter of procedural due process, should provide counsel to the poor in particular welfare cases where the Mathews factors align most obviously in favor of counsel. These include cases where "[a]n impoverished family threatened with termination or reduction of subsistence benefits faces the severest sorts of injury and privation," where counsel is particularly necessary for a poor litigant to protect his or her rights, and where the government's interest in saving money aligns with the poor litigant's interest in resolving the matter quickly and correctly.

By presenting this constitutional argument to the legislature (and not the courts) under an underenforced constitutional norm theory, Loffredo and Friedman bypass the Lassiter presumption and Goldberg's modesty, the most significant barriers to claims for a constitutional right to counsel in the courts. Loffredo and Friedman:

Lassiter recognized that certain alignments of the Mathews factors in the parental rights setting would tip the scales decisively enough to overcome the Court's presumption against a right to counsel. As demonstrative above, at least some welfare cases present a comparably decisive alignment of Mathews factors that would warrant a judicially ordered assignment of counsel. But regardless of whether the courts would enforce a due process right to representation in the welfare context, the legislature bears a broader, independent obligation to ensure that individuals receive the full protection of that constitutional right, undiminished by limiting constructions that the judiciary, for separation of powers or related institutional reasons, may adopt as a matter of prudential self-restraint. Even if one regards the full measure of the due process norm as extending no further than the Mathewsanalysis, shorn of Lassiter's presumption, that analysis makes plain that the absence of counsel from particular welfare hearings denies due process to many thousands of the state's poorest and most vulnerable families. The legislature is therefore duty-bound to act.

Loffredo and Friedman conclude with specific recommendations for identifying cases that meet their standard and qualify for a right to counsel. (They also include as an Appendix two transcripts of pro se hearings that are quite convincing on the problems litigants face without counsel.)

Moral, economic, and policy arguments to state legislatures haven't always been successful, and that's why the civil right to counsel movement has so often turned to the courts. But Loffredo and Friedman offer a new constitutional argument. It's appealing on moral, economic, and policy grounds; but, they argue, it's compelled on constitutional grounds.

This is an important contribution to this area. I highly recommend it.

SDS