California Enacts Nation’s First “Civil Gideon” Law

In 1963, the United State Supreme Court decided the case of Gideon v. Wainwright (1963) 372 U.S. 335.  In that case, Clarence Earl Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense.  Despite being semi-literate, Gideon requested court-appointed counsel.  The following colloquy then took place:

‘The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
‘The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.’

Gideon unsuccessfully defended himself, was convicted by a jury, and the court sentenced him to five years in a state prison.

In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney, and that the trial court’s refusal to appoint counsel violated Gideon’s rights under the 6th and 14th Amendments.  In doing so, the Court overruled its 1942 decision in Betts v. Brady.  Ruling that the Sixth Amendment‘s guarantee of counsel was a fundamental right and essential to a fair trial, and that the 14th Amendment made this right obligatory on the states, the Gideon Court establish a fundamental right in the United States to be represented by an attorney in criminal proceedings.

MV5BMjE4Mjk0MzE5MV5BMl5BanBnXkFtZTYwMjA5NjA5._V1._SX220_SY400_The Gideon v. Wainwright case was depicted in the 1980 movie, ‘Gideon’s Trumpet,’ starring Henry Fonda.  Oral argument in the case of Gideon v. Wainwright can be heard by linking to the Oyez Project.

Traditionally, the right to be represented by counsel has not extended to civil matters.  This is true even though the phrase “civil matters” broadly encompass many important types of cases; e.g., domestic violence cases, paternity cases, housing and employment discrimination, and police misconduct cases.  By enacting what has come to be known as “Civil Gideon,” California is the first state in the nation that will provide a right to representation by counsel, at least in certain types of civil cases.  On October 13, 2009, Governor Schwarzenegger signed AB590 proposed by Assemblyman Mike Feuer (D-Los Angeles).

The California measure provides a pilot project for court-appointed counsel in “civil matters involving critical issues affecting basic human needs.”  Because it is a pilot project, these new rights will not necessarily be in place in all California counties.

In those participating counties, priority under California’s Civil Gideon will be:  domestic violence, civil harassment restraining orders, probate conservatorships, guardianships, elder abuse, and child custody.  Child custody cases are to be given particularly high priority, according to the statute, because of the extraordinarily high number of self-represented litigants in such cases.

For those interested, you can link to the November 2009 article in the California Bar Journal here.  I have also put a complete copy of the California statute as enacted in Box.net, so if you are interested check out the widget in the footer to obtain your copy.

Many thanks go out to my colleague, paralegal Lori J. Paul, for suggesting this topic and for assisting me today with some fast, top-notch research on this.

So what do you think?  Should those without funds to pay for an attorney in those civil cases mentioned above be afforded one by the court system?  Is the California law a civil right or civil wrong?  Does your answer depend upon how this newly created right is funded; i.e., it’s a civil right if and only if it is not funded by tax dollars?  Check out our forthcoming poll on this issue.

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