June 24, 2011 – Criminal defendants have a right to state-appointed counsel under the Sixth Amendment, as held in Gideon v. Wainwright, 372 U.S. 335 (1963). Recently, a petitioner from South Carolina tried and failed to argue that, as a matter of due process, state courts must also provide court-appointed counsel to indigent persons in certain civil cases.

The U.S. Supreme Court ruled in Turner v. Rogers et al., 564 U.S. __ (2011), that the Due Process Clause “does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).”

The Turner decision does not prevent states from deciding to fund civil legal services. A pending petition (10-08) with the Wisconsin Supreme Court seeks a rule that would require court-appointed counsel for indigent clients in certain civil cases.

The petition, scheduled for a hearing on Oct. 4, argues that appointment in certain civil cases is “necessary to ensure the efficient and effective functioning of the court and the fair administration of justice.”

However, Gov. Walker’s proposed state budget, expected to pass by June 30, 2011, eliminates all funding for indigent civil legal needs. That means funding would not exist, even if the Wisconsin Supreme Court ruled to adopt the petition, known as a Civil Gideon proposal.

The Wisconsin Access to Justice Commission (commission), created by Wisconsin Supreme Court order in response to a petition filed by the State Bar of Wisconsin, voted unanimously on June 16 to adopt the following statement:

“The Access to Justice Commission emphatically endorses the right to legal counsel for low income Wisconsin residents when basic human needs are at stake, as embodied in Petition 10-08, Petition to Establish a Right to Counsel in Civil Cases, and as found in American Bar Association Recommendation 112A, dated August 7, 2006 …”

The commission was established “to develop and encourage means of expanding access to the civil justice system for unrepresented low-income.” According to the commission, no other state besides Idaho has eliminated all funding for civil legal needs. 

Civil Gideon

Petition 10-08 seeks to require court-appointed counsel for indigent clients where assistance of counsel is needed “to protect the litigants rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety, and child custody and placement.”

The petition, developed by the Wisconsin Right to Counsel Task Force and filed in September 2010 with 1,320 signatures, calls for representation in cases where a person’s income falls below 200 percent of the federal poverty guidelines. Under the current guidelines, a family of two persons that earn less than $14,710 is below the poverty line. In that situation, the petition would require representation if that two-person family earned less than $29,420.

According to the commission, Wisconsin currently provides about $2.6 million per year in state funding for civil legal aid services for the indigent, elderly, and victims of abuse.

The current funding comes from a $4 “Justice Information Surcharge.” The proposed state budget redirects that $4.00 to other programs.

The Turner ruling does not categorically require court-appointed counsel in cases where due process rights are implicated, but ensures that states protect unrepresented litigants with procedural safeguards, such as “adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings.”

In fact, the court ruled that a South Carolina state court violated the petitioner’s Due Process rights by ordering incarceration without providing alternative procedural safeguards in the absence of court-appointed counsel, such as a fair opportunity to present his case.