As it is everywhere, indigent criminal defendants have a constitutional right to have counsel appointed to work on their behalf. This right was established in Gideon v. Wainwright in 1963. But what of indigent persons in civil matters? Unfortunately in 1981, in Lassiter v. Department of Social Services, the United States Supreme Court said “no,” there was no similar right to appointed counsel in civil matters.
As readers of this blog know, I formed and managed a privately funded non-profit legal services organization for nine years specifically devoted to providing legal services to low income Rhode Islanders in civil matters. I wrote about this effort in my book Access to Justice On the Outskirts Of Hope (two volumes available on Amazon during this holiday season).
What follows is a topic that was touched on in my book. Since I wrote that book the question of whether a right to appointed counsel in civil matters has continued to nag me, sometimes to distraction. So over the past two years I have been examining and continue to examine this question in greater detail.
Before getting into the meat of this matter, let me say the following. First, I am working on a theory that transcends Rhode Island. But it’s in Rhode Island, where I conveniently live, that I am able to make the most persuasive argument. But please bear in mind, due to space limitations and the avoidance of overbearing wonkiness, by necessity this is an abbreviated version of this argument.
Second, like most if not all law, what follows is rooted in history. Recognizing that some eyes will glaze over at the mere mention of “history,” I’ll do my best to make it more easily accessible - and hopefully brief.
Third, to my great shame and, perhaps, my perpetual regret, I did not know of this topic at the time I could have marshaled the resources of my LSO and tried to do something about what I can now only discuss. It was only through researching my book that I discovered what I’m about to relay. As an attorney and as the head of my LSO, I feel I should have known. That’s on me.
With that out of the way, let’s crack on!
__________________________________________ We begin our historical journey back in 1495 C.E. and the reign of Henry VII, the last medieval or first renaissance English monarch. Opinions vary on that last/first bit. Ten years earlier, Henry Tudor of the House of Lancaster ended the 30 Years War by defeating Richard III of the House of York (who died in the battle) at Bosworth Field in Wales. Apparently Henry had more allies in Richard’s army than Richard had.
Over the next ten years after taking the throne in 1485, Henry was focused on two things: raising money for the realm, and keeping the peace both domestically and overseas, particularly with France. It’s easy to see why keeping the domestic peace was a priority given how his predecessor met his end. But Henry also understood an essential truth about war: it costs money. War adversely impacts the domestic economy in ways we all can name, and a poor economy means possible political instability and less money for the crown.
So from 1485 to 1495, Henry was able to stabilize and to some extent grow the economy, fill the coffers of the crown, and mostly avoid armed conflict. And those he couldn’t avoid did not last very long. By 1495, Henry reigned over a largely prosperous and peaceful kingdom.
Henry, like many of his predecessors, utilized Parliament to ratify various of his policies. A quick word about Parliament. While it was, to some degree, a power sharing body with the king, it was a far cry from a co-equal power source, let alone the the dominant political body it is today. Under Henry, Parliament met seven times, for a few months at a time.
And don’t confuse Parliament with a democratic political body. By Henry’s reign, it had become a rudimentary “bicameral” legislative body, with the House of Lords being the smaller chamber comprised exclusively of titled nobles. The Commons had the largest membership comprised of “lesser” nobles and propertied males. Margaret Thatcher was 500 years in the future.
In 1495, Parliament met for two months in the fall and addressed a variety of issues, of which was the enactment, with “the King’s assent,” of 12 statutes. Among them, the twelfth, was this (abbreviated):
[E]very poor person or persons which have [and] hereafter shall have cause of action or actions against any person or persons within the realm shall have, by the discretion of the
Chancellor of this realm, for the time being writ or writs original and writs of subpoena according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, . . . [a]nd that the said Chancellor for the same time being shall assign . . . Counsel learned by their discretions which shall give their Counsels nothing taking for the same, and in like wise the same Justices shall appoint attorney and attorneys for the same poor person and persons and all other officers requisite and necessary to be had for the speed of the said suits to be had and made which shall do their duties without any rewards for their Counsels' help and business in the same …. 11 Hen. 7 c.12.
For the two hundred years prior, the ecclesiastic and secular courts provided these legal services and appointments while waiving costs to those appearing in forma pauperis. Courts had long been money makers for the church and state, and they competed vigorously for “business.” Perhaps felt more acutely in the secular courts, monies lost from fees meant less money flowing upstream to the crown.
And by 1495, the legal profession grew to the point that some lawyers, particularly new lawyers, took cases pro bono as a means of getting known. Moreover, courts were seen as a civilized forum for the resolution of disputes. The benefits derived from increased court access and peaceful resolution of disputes, in my view, served Henry VII in his quest for a prosperous peaceful realm.
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Fast forward to the British colonization of North America. These settlers, beginning in Jamestown and Plymouth, brought their customs and culture, including legal customs, to the New World. As more people arrived and the more stable the colonies became, the need for lawyers grew. Lawyers were instrumental in ensuring the legitimacy and enforcement of business contracts. They engaged in title searches and drafted deeds necessary for farmers to invest time and money in the planting and growing of crops. Lawyers assisted in the administration of the colonial governments. And increasingly over time, attorneys stood to vindicate the rights of the individual vis-a-vis the state.
The legal theories and the law they were taught, mostly by reading law under the tutelage of older experienced attorneys, was English law - acts of the King, statutes of Parliament, and cases of the English courts all comprised to form the common law.
And we know that 11 Hen. 7 c.12, was recognized by various colonies. For example, Maryland, North Carolina, and Pennsylvania all openly utilized this ancient statute in their colonial courts. We know that William Blackstone referenced the statute in his Commentaries published in 1765, eleven years prior to the Declaration of Independence. Any thought that 11 Hen. 7 c.12 was a dusty unused relic of medieval England just ain’t true. It was a vibrant statute employed by the colonial courts and was well known by the architects of our modern state.
Post revolution, states that we’re not extant in 1776 incorporated the statute into their statutory schemes. Indiana incorporated it in order to establish a “humane system of Justice.” Florida copied the text of the English statute verbatim into its state statutes where it remained until the 1940s. Over time some states used this statute as a means to waive court costs for indigent parties. However, in 1985, a Pennsylvania court used 11 Hen. 7 c.12 as its authority to appoint counsel to represent an indigent party.
Likewise California and Delaware relied on 11 Hen. 7 c.12 as authority to waive fees of litigants appearing in forma pauperis. California also codified the right to counsel provision contained in 11 Hen. 7 c.12.
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By now you must be asking, ”what about Rhode Island?” In 1972, the Rhode Island Supreme Court in the case Jones v. Aciz, 109 R.I. 612 (R.I. 1972) approached the application of 11 Hen. 7 c.12. in relation to court costs. The legal issues raised in Jones (two cases that were eventually joined by the Supreme Court) were related to two seemingly mundane eviction actions. The district courts issued judgments in favor of the landlords.
The tenants sought to appeal but, because of destitution, were unable to meet the related costs. The district courts claimed that they did not have the authority to waive the required costs to be paid in order to perfect the appeals. Ultimately, the parties separately petitioned for certiorari, both of which were granted by the Rhode Island Supreme Court.
While other legal issues were raised by the parties, and while not everything went as well as the tenants thought, it is the issue of the costs that is important here. Citing 11 Hen. 7 c.12, the Court found that the district courts had, under Rhode Island’s statutes, the inherent authority to waive costs for indigent parties. As applied in Jones, the District Court had inherent power, at common law, to waive the costs of appeal by an indigent defendant in an action for possession of tenements. Such power is a necessary adjunct to the exercise of judicial power. It would be unthinkable that under our system the contrary could be true.
The court further wrote,
… [T]he history of the common law in our state supports the existence of such inherent power in the District Court. Statutory waiver of costs for the poor civil litigant was authorized in 11 Hen. VII, chap. 12 at 60-61 (1494). By later statute, "Elizabeth I, * * * expressly authorized 'waiver' of fees [in 1603]." Jeffreys v. Jeffreys,296 N.Y.S.2d 74, 78, 58 Misc.2d 1045, 1046 (1968). See also Annot., 6 A.L.R. 1281 (1920); Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev. 361, 363-72 (1923).
Additionally,
“In Williamson v. General Finance Corp., 99 R.I. 626, 628, 210 A.2d 61, 63 (1965), we pointed out that,
"The only statutes of England * * * which were in force as the common law of the colony were those specifically enumerated in the Act of the general assembly adopted at its February session in 1750."
"The statutes of * * * Elizabeth" were to be in force as the common law of the colony as well as "'[a]ll statutes relating to the poor * * *.'" Flynn, Judicial History of Rhode Island, 1 West's Rhode Island Digest, pp. XVII-XVIII. There is nothing in the judicial history of this state to warrant the conclusion that those statutes have not been "practiced under." Indeed the lack of cases involving this question would indicate strongly that those statutes "have continued to be practiced under as in force in this state." R.I. Gen. Laws § 43-3-1. It would be inconceivable that the courts of this state would have done otherwise.”
We see that the Court noted that the colonial General Assembly adopted the English common law in 1750. As indicated in Jones, it remained a part of the Rhode Island General Statutes in 1972. Fifty years later, R.I. Gen. Laws § 43-3-1 reads,
In all cases in which provision is not made herein, the English statutes, introduced before the Declaration of Independence, which have continued to be practiced under as in force in this state, shall be deemed and taken as a part of the common law of this state and remain in force until otherwise specially provided.
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It is clear that 11 Hen. 7 c. 12 has “continued to be practiced under as in force in [Rhode Island], …” That only one part of this old English statute has been actively applied in Rhode Island does not obviate the validity of the remaining provision related to the appointment of counsel for indigent litigants.
If the waiver of costs is an inherent power under the adopted common law, so, too, is the appointment of counsel under similar circumstances. That the statute was honored in one line of cases cannot mean that it would not be honored in another similar line of cases. That the statutory right to appointed counsel has not been ratified by the Court is in no small measure that a proper case has yet to be brought by in forma pauperis litigants. Courts can only decide issues brought to them, they can’t freelance.
Which raises the question, why not? There is one Legal Services Corporation affiliate that might have the resources to litigate such an action. There is also another, non-LSC sponsored legal services organization that was founded on the stated mission of working for systemic change. And what could be more systemic than ensuring that everyone has access to legal counsel to ensure meaningful access to the courts?
We also have a law school with various clinics, as well as the state bar association’s volunteer lawyers program. Moreover, there are plenty of attorneys in Rhode Island, might not one of them want to perform a public service by pursuing such an action?
While I was still in practice, I twice raised the issue, in a local web based news site, regarding Rhode Island’s lack of an Access to Justice Commission, one of which was included in my book). The ABA granted funds in 2013 to support the organization of such a Commission but nine years later we still have no ATJ Commission. Why not? Such a commission could have been a vital resource through which appointed counsel could be provided.
Once again, I was unaware of this old common law statute that was incorporated into the Rhode Island statutes. It was only after I closed my LSO and began work on my book that I discovered the possibility of providing counsel to a number of qualified litigants greater than all the entities currently providing legal services to Rhode Island’s indigent parties.
In the course of my research for my book, I reviewed sources discussing the creation of a “Civil Gideon” practice in the United States. It was during that research that I came across an article published in University of Michigan Journal of Law Reform. That article left me with questions that have been stalking me to this day.
I have worked out some answers to my questions, yet others persist. But because I resigned from the Rhode Island bar, I cannot pursue any case on any subject in any court. Therefore I am limited to my writing, relating my findings and raising questions.
To this point, I assert my finding that there is a sound legal basis to provide appointed attorneys to in forma pauperis litigants. I can continue to assert that the creation of an Access to Justice Commission would be instrumental to organize and gather the resources necessary for the support of appointed attorneys. And I can continue to ask why no legitimate case premised on 11 Hen. 7 c.12 has yet to be brought to the courts?
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