Faces of Open Courts and the Civil Right to Counsel
Steven D. Schwinn
John Marshall Law School (Chicago)
University of Baltimore Law Review, Vol. 37, No. 1, p. 21, Fall 2007
The courts are often the last guardian of the most vital needs of the poor. Thus the poor rely upon the courts to protect basic human needs like shelter, sustenance, personal safety, and child custody with fair process and equal treatment.
But the poor all too often lack legal counsel to help press and defend these interests. And without an equal voice in the courts, the poor are often overmatched, and their rights are frequently trampled. This is most alarming in those state-initiated proceedings designed to deprive the poor of their fundamental rights, like state-initiated cases to terminate parental rights.
In order to secure an equal voice for the poor in these cases, advocates have used test cases and impact litigation to try to establish a civil right to counsel, or a Civil Gideon. This effort, however, faces an enduring and formidable roadblock in the 1981 United States Supreme Court case Lassiter v. Department of Social Services, which held that the poor had no categorical constitutional right to counsel under Fourteenth Amendment due process. In the wake of Lassiter, advocates seek to secure a Civil Gideon right either by pushing the bounds of Lassiter, or by securing the right via some other constitutional vehicle.
This paper explores a potentially powerful but underutilized strategy that falls into the latter camp: Civil Gideon via state constitutional "open courts" clauses. These clauses, drawn directly from Magna Carta, require that state courts remain "open" and that justice remain "free," "full," and "speedy." They have provided fodder for litigants in a wide range of challenges to access barriers, from tort-reform damage caps to fee-shifting statutes.
Although open courts doctrine is notoriously confused, this paper argues that clear patterns emerge in the open courts jurisprudence when viewed through the lens of Civil Gideon. These patterns - along with the plain language and purpose of open courts provisions - suggest that state constitutional open courts provisions could provide an attractive option for Civil Gideon instigators and sound support for a civil right to counsel.
Number of Pages in PDF File: 38
Keywords: access, courts, justice, counsel, Lassiter, Gideon
JEL Classification: I3, I39Accepted Paper Series
Date posted: March 19, 2008
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