Housing Gideon: the right to counsel in eviction cases.

• Author: Kleinman, Rachel

INTRODUCTION

In Gideon v. Wainwright, Justice Black commented that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth." (1) Since Justice Black made this proclamation in 1963, most Americans intuitively accept the idea of an indigent's constitutional right to counsel in a criminal trial. While lawmakers and advocates debate over how best to deliver these services, and whether or not the right is being met adequately, they generally do not question whether the right exists. (2) Neither the legislative nor the judicial branch, however, has recognized an analogous right to counsel in civil matters. (3) Though government sponsored legal services, public interest law offices and organizations, and pro bono programs at private firms provide legal services to indigent clients, the legal services provided to indigents in civil cases fall far short of the number that are provided to people who are able to pay for legal help. (4)

Scholars and practitioners make both constitutional and ethical arguments for the expansion of legal services and for the recognition of a right to counsel for the indigent client in civil matters. (5) The correct functioning of the adversarial process itself relies on the assumption that both sides are coming to the process with equal legal resources. (6) Equality of resources, however, is frequently not a reality for indigent litigants. (7) In the area of housing law and evictions, for example, advocates have argued that recognizing a right to counsel is the only way for government to minimize the effect of inequality in access to justice, and, in many cases, the only way to prevent homelessness. (8) Others have cited both feasibility and public policy in arguments against recognizing a right to counsel in eviction proceedings. (9)

Part I of this comment lays out some of the arguments for recognizing a right to counsel for indigents as well as some of the proposed solutions for making such a right a reality, focusing on the arguments made in favor of extending a right to counsel for indigents involved in eviction proceedings. (10) Part II discusses some of the problematic aspects of recognizing the right to counsel for indigent tenants, including Barbara Bezdek's critique of reliance on "access to justice" strategies (11) and Gary Bellow and Jeanne Kettleson's arguments against using the wholesale expansion of legal services as a strategy for ameliorating inequality in the civil justice system. (12) Part III argues that despite these important criticisms, a strong doctrinal basis as well as a deep need--especially in the case of eviction proceedings--to recognize a right to counsel for indigents still exists. (13)

1. IN FAVOR OF THE RIGHT TO COUNSEL FOR INDIGENTS IN EVICTION PROCEEDINGS

   In 1963, the Supreme Court held in Gideon v. Wainwright (14) that the Constitution guarantees every person charged with a felony the right to an attorney even if he or she cannot afford one. (15) Since the Supreme Court recognized the Constitutional right to counsel in criminal cases, advocates have argued for a civil version of Gideon. (16) Proponents of this right argue that in many civil cases the stakes are as high as those in criminal cases, and consequently the concept of equitable access to justice is empty without a recognized right to counsel in these cases. (17)

   1. Equal Protection Argument

      Advocates for the right to counsel for indigent litigants have argued that indigents have a right to counsel in civil cases under the Equal Protection Clause. (18) Generally, if a law "neither burdens a fundamental right nor targets a suspect class, [a court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end." (19) This rational basis test is relatively easy for a government actor to satisfy. (20) If the court determines that legislation burdens a fundamental right or discriminates based on a suspect classification, however, it will apply a "more searching judicial inquiry." (21) In order to persuade a court to apply the much tougher "strict scrutiny" analysis to determine whether a right to counsel exists in civil proceedings, one would have to prove either that the assistance of council is a fundamental right, or that discrimination based on wealth should be considered a suspect category. (22)

      Leonard Schroeter argues that the right to counsel should be considered a fundamental right. (23) This right, he argues, is a product of natural law, and can be seen in American jurisprudential tradition most clearly in the Declaration of Independence. (24) Schroeter notes that most scholars see the Declaration of Independence as asserting the "self-evident truths of individual dignity, the right to be treated equally, and rights that cannot be taken from us which are classified as life, liberty and the pursuit of happiness." (25) And, Schroeter argues, the most essential of these fundamental rights is access to justice, a right that cannot be recognized without the courts also recognizing a right to counsel. (26) Proving that a right is "fundamental," however, is an extremely tough hurdle in almost any contexts For a right to be considered fundamental, the court considers whether the right is explicitly or implicitly guaranteed by the Constitution. (28) It is unlikely that the right to counsel in civil cases would be considered fundamental. (29)

      A court could also apply a strict scrutiny test if it considered those living in poverty a suspect class. (30) Although the Court generally reserves this category for discrimination based on race, (31) in Griffin v. Illinois, (32) a case regarding the provision of free trial transcripts to indigent defendants, the Supreme Court held that unequal treatment based on economic need is as impermissible as discrimination based on "religion, race, or color." (33) In a later case addressing the right to counsel for indigents in criminal appeals, however, Justice Clark wrote in the dissent that the Equal Protection Clause

      does not impose on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances. To so construe it would be to read into the Constitution a philosophy of leveling that would be foreign to many of our basic concepts of the proper relations between government and society. The State may have a moral obligation to eliminate the evils of poverty, but it is not required by the Equal Protection Clause to give to some whatever others can afford. (34) In 1973, the Court appeared to embrace Justice Clark's view when it held in San Antonio v. Rodriguez that the poor were not a suspect class triggering strict scrutiny. (35) In its holding, the Court reasoned that, "at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages." (36) Thus, though cases like Griffin provide some hope, an argument for a right to counsel based on an Equal Protection argument is unlikely to prevail since it would necessitate a court recognizing a new fundamental right or suspect class, which the Supreme Court has been reluctant to do. (37)

   2. Due Process

      In his article arguing for the recognition of a constitutional right to counsel for indigents in eviction proceedings, Andrew Scherer employs a procedural Due Process argument rather than an Equal Protection one to argue that poor people have a legal right to counsel when threatened by landlords with eviction from their homes. (38) His article also argues that the promises of Gideon, with respect to fair and equitable access to justice, have fallen short in terms of the real lives of those living in poverty. (39)

      In Mathews v. Eldridge, (40) the Supreme Court created the test for determining what constitutional due process is required when someone is facing the loss of property. (41) The framework requires the balancing of three factors:

      First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards: and finally. the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (42) Scherer applies the Mathews balancing test to the hypothetical of a poor tenant faced with the loss of her home. (43) He identifies the interest at stake for indigent tenants in the case of eviction as both a property interest and a liberty interest. (44) He argues that a tenant has a property interest in her home. (45) A person or family that loses in an eviction proceeding is faced with the loss of the place where they live, and possibly the loss of possessions within the home. (46)

      Scherer probes deeper to identify the liberty interest involved in eviction proceedings. Quoting Allgeyer v. Louisiana, (47) he defines liberty as "'the right of the citizen ... to use [his faculties] in all lawful ways, to live and work where he will; to earn his livelihood by any lawful calling: to pursue any lawful trade or vocation.'" (48) He thus identifies any procedure or policy that infringes on "the fundamental rights of liberty" as a restraint on the individual's liberty interest. (49)

      According to Scherer, the liberty interest in the case of eviction proceedings "is one which falls within the rubric enunciated by the Supreme Court in Lassiter v. Department of Social Services." (50) In Lassiter, the Court refused to recognize a right to counsel for people faced with termination of their parental rights. (51) In his decision for the majority, Justice Stewart derives from precedent "the presumption that an indigent...