Participation, equality, and the civil right to counsel: lessons from domestic and international law.

AuthorDavis, Martha F.
PositionSymposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. U.S. JURISPRUDENCE: CIVIC PARTICIPATION, EQUALITY, AND CIVIL COUNSEL A. Supreme Court Case Law 1. Due Process Analyses and the Right to Counsel 2. Equality Analyses B. State Courts 1. Civil Cases Involving Restrictions on Liberty 2. Civil Cases Involving Important Family Relationships 3. Civil Cases Involving Important Economic and Social Needs II. INTERNATIONAL LAW ON THE RIGHT TO CIVIL COUNSEL A. International Law: Civic Participation and the Right to Counsel B. Regional Instruments: Civic Participation and the Right to Counsel III. LESSONS: FRAMING A RIGHT TO CIVIL COUNSEL CONCLUSION INTRODUCTION

The origins of the phrase "today's dissent is tomorrow's majority" are obscure, but the phrase itself, a reference to the way in which the Supreme Court's jurisprudence evolves and even reverses itself over time, is ubiquitous. (1) Of course, dissenters' predictions do not always turn into majority views. Justice Black's dissent in Goldberg v. Kelly, which predicted the wholesale expansion of appointed counsel to civil cases, is a case in point. (2)

Goldberg famously held that the termination of subsistence welfare benefits triggers constitutional due process rights. (3) Yet even while finding that welfare may be "more like property than like a gratuity," (4) the Court placed limits on the procedures constitutionally mandated when welfare is terminated. In particular, state-appointed counsel was explicitly not required. Rather, the Court indicated that the recipient must simply "be allowed to retain an attorney if he so desires." (5)

Writing in dissent, Justice Black railed against the majority's extension of constitutional protection to welfare benefits and the burdens that it would put on the state. Though he had authored Gideon v. Wainwright only a few years before, the Justice expressed grave concern about the implications of the Goldberg majority opinion, warning that

today's decision requires only the opportunity to have the benefit of counsel at the administrative hearing, but it is difficult to believe that the same reasoning process would not require the appointment of counsel, for otherwise the right to counsel is a meaningless one since these people are too poor to hire their own advocates. (6) More than four decades later, Justice Black's cynical Goldberg prediction has failed to capture a majority of the Supreme Court. Far from expanding the right to counsel in civil cases, the Court has expressly declined to mandate appointed counsel in cases involving child custody (Lassiter v. Department of Social Services (7)) and loss of liberty for a civil violation (Turner v. Rogers (8)). Cases after Goldberg considering the procedures constitutionally required when terminating government benefits, such as Mathews v. Eldridge, do not mention a right to civil counsel even to disclaim it. (9)

This Essay, nevertheless, argues that Justice Black was essentially correct. But rather than arising from the plaintiff's desperate need, as Justice Black surmised, the seeds of a constitutional right to counsel in civil cases are to be found in Goldberg's emphasis on the values of democratic citizenship and community participation (10) and Gideon's consideration of procedural equality. (11) While these ideas are not themselves new, as detailed below, two principles drawn from international jurisprudence--the human right to "civic participation" and the concept of "equality of arms"--resonate with emerging U.S. jurisprudence in this area, and suggest new approaches to domestic advocacy.

First, the concepts of democratic citizenship and community participation have long been important background values in constitutional jurisprudence. They play a significant role in, for example, many constitutional cases that recognize the importance of equipping individuals to participate in our political system by ensuring equal access to education. (12) However, promotion of community participation is a value underlying due process protections as well. (13) In Goldberg, the majority traced these concepts to the original constitutional compact when, in mandating pre-termination hearings, the Court stressed that the "general Welfare" and the "Blessings of Liberty" are promoted and secured when the poor have "the same opportunities that are available to others to participate meaningfully in the life of the community." (14) While participation in a community has many facets, one of the most important is certainly participation in civic institutions such as the judicial system. (15)

International law embraces similar values. Under international law, the concept of a human right to civic engagement or a right to participation in public institutions cuts across individual treaties and declarations, attaining recognition as a core tenet of good governance. (16) While descriptions of the right to civic engagement often reference engagement with elected bodies, judicial bodies are not excluded from its ambit. (17) In fact, engagement with judicial bodies is particularly important when the issues before the courts have significance beyond the individual litigants, as is the case in common law systems where decisions are enshrined in precedent and projected forward as a baseline for future decisions. (18) Both the domestic concept of community participation and the international right to civic engagement make clear that access to government institutions in order to participate in decisions affecting oneself or one's community is a universal value necessary for responsible and sustainable governance.

Second, the concept of equality also crosses domestic and international lines and is central to access-to-justice jurisprudence in both arenas. Gideon v. Wainwright rests, in part, on equality grounds, as the decision observes repeatedly and with concern that inequalities result when the prosecution is represented while poor defendants are not. (19) This concern is described more succinctly in international jurisprudence as the issue of "equality of arms," which is the fundamental principle that a party should be afforded a reasonable opportunity to present its case in conditions that do not place it at a substantial disadvantage vis-a-vis its adversary. (20) Considered together, the domestic and international versions of this concept underscore the extent to which equality is part and parcel of procedural fairness.

Having defined these concepts, I want to put them to use in exploring a specific question: can a civil right to counsel in the United States be grounded in the due process right to an equal opportunity for civic participation? (21) As set out below, I argue that an expanded concept of equality of arms, encompassing broader ideas of societal equality beyond the four walls of the courtroom, may lead to an affirmative answer.

This Essay proceeds as follows. First, I examine U.S. federal and state court jurisprudence on the civil right to counsel to ascertain whether arguments concerning equal opportunity for civic participation have gained purchase. While some state courts have found a civil right to counsel when participation in family life is at issue, the value of ensuring more meaningful civic participation has generally been absent from the discussion. Some courts have, however, identified equality concerns as a consideration in appointing civil counsel under both due process and equal protection provisions. Though not fully developed in domestic jurisprudence, these equality considerations are on a continuum with the broad rationale laid out in Goldberg.

Second, I look to the international arena to examine the roles that participation and equality have played in securing international recognition of the civil right to counsel. While an oft-cited rationale supporting the civil right to counsel in individual cases is equality of arms, international actors situate this concept in its larger context. Civic participation and procedural equality are freestanding rights under international law, often playing a central role in discussions of procedural protections. (22) Broader social disparities have been acknowledged, and the impact of the lack of counsel on racial minorities and women has been an important marker for international lawmaking bodies. (23)

Finally, I consider what lessons domestic actors might draw from the international law context. International comparators suggest ways in which domestic procedural norms might be reconceived to incorporate the value of civic participation as a basis for expanding the right to counsel. A version of "equality of arms" has begun to take hold in the United States as a factor when courts consider claims for appointed counsel. (24) Greater breadth could be given to that concept by contextualizing it within communities. This approach would not supplant an evaluation of individual need, but provide an alternative analysis promoting the values of civic participation and equality articulated by the majority in Goldberg and hinted at in Gideon.


    A survey of federal and state cases addressing the civil right to counsel reveals that individual considerations of participation and procedural equality are occasionally referenced, and sometimes included in a list of the relevant factors to be weighed. However, few courts have appreciated the centrality of participation and equality to the fundamental purposes of due process protections. Because court decisions have generally failed to identify the broader community-wide or population-based impacts of the denial of counsel, no case has adequately defined, synthesized, and integrated issues of civic participation and procedural equality into its decisional framework concerning the civil right to counsel.

    1. Supreme Court Case Law

      1. Due Process Analyses and the Right to Counsel

        The concept of civic participation has been a muted presence in the federal...

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