The Case Against Case-by-Case: Courts Identifying Categorical Rights to Counsel in Basic Human Needs Civil Cases
53 Pages Posted: 6 Feb 2015
Date Written: 2013
While the U.S. Supreme Court has been reluctant to recognize a right to counsel in civil proceedings, the state courts have led the way, utilizing a variety of jurisprudential approaches. The courts discussed in this Article had the option of requiring trial courts to determine on a case-by-case basis whether litigants should be appointed counsel, but they did not do so. Instead, these courts established a categorical right to counsel for either all litigants or an easily identifiable group of litigants.
This Article explores the opinions that established a constitutional right to counsel in such areas as domestic violence, termination of parental rights, paternity, civil contempt, civil commitment, civil forfeiture, and judicial bypass of parental consent to obtain an abortion. This Article lays out the jurisprudential grounding for each opinion (state or federal constitution, due process, equal protection, inherent power, etc.) and examines the rationale for the court’s decision: the strength of the multiple interests at stake, the risk of error, the quasi-criminal nature of the proceedings, and so on. This Article also examines how the rationale for some of these decisions could be applied to other subject areas. For example, some of the reasoning for a right to counsel in domestic violence cases could translate to abuse and neglect proceedings. Lastly, this Article looks at the problems inherent in the case-by-case approach for justice and judicial efficiency. In sum, this Article demonstrates that while there is much to do before all of the basic human needs of indigent litigants are protected, many wise and courageous courts have begun the process.
Keywords: civil right to counsel, Gideon, case-by-case, categorical
Suggested Citation: Suggested Citation