‘Civil Gideon’ Oklahoma Style
By Gary A. Taylor

The American civil justice system is experiencing a quiet, nationwide revolution. At issue is the adequacy of the process to ensure fair judgments in certain civil matters which touch on the basic needs of individuals and families. “Civil Gideon” has come to mean that there exists a civil corollary to that established by the U.S. Supreme Court in Gideon v. Wainwright.1  There are certain nominally “civil” matters that involve interests so basic in our society that litigants in adversarial proceedings, especially low-income parties, should be assured the assistance of counsel. In 2006, the ABA passed resolution 112A, exhorting all levels of government to recognize the importance of these needs and take action:

RESOLVED, That the American Bar Association urges federal, state and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.

The primary — or at least most obvious — distinction between “civil” and “criminal” Gideon boils down to the possibility of loss of personal physical liberty in the latter context. With one notable exception — “civil” contempt2 — the circumstances of concern to the “Civil Gideon” movement do not typically carry the risk of incarceration.3 Oklahoma has recognized that certain proceedings and parties thereto require appointed counsel because the rights involved have been either legislatively or judicially deemed “fundamental”: parents threatened with permanent and involuntary loss of parental rights to their children (as well as the subject children); children involved in custody proceedings where credible evidence of abuse and neglect exists; children faced with permanent placement away from their parents; adults or children in mental health commitment cases; and more recently parents (minor parents presenting a special case) who wish to relinquish their rights to adoptive parents; and a number of others more arcane.4

A recent (2006) survey of Oklahoma law conducted under the auspices of Oklahoma’s Access to Justice Commission revealed at least 29 separate “civil” circumstances where appointed counsel is required under Oklahoma statutes.5  Just as compelling, however, is the myriad of cases which, in the words of then-ABA President Michael Greco:

“The time has come to ask why this right to counsel has not been extended to lower-income people facing equally serious civil legal problems—problems that can imprison one just as surely in poverty and despair as behind bars of steel.”6

By and large, Oklahoma’s “civil” appointment requirements involve proceedings affecting fundamental relationships (adoptions; deprived child proceedings); risk of harm to vulnerable Oklahomans (any “custody” proceeding where there is evidence of harm to children resulting from abuse or neglect; protective services for adults) or loss of physical liberty through mental health commitment proceedings. “Civil Gideon” proponents have a broader view of the nature of proceedings that require legal counsel. New York, for example, is considering expanding the right to low-income senior citizens facing eviction or foreclosures.7 The Pennsylvania Bar has adopted a resolution urging the expansion of right to counsel, echoing the ABA resolution. Louisiana has expanded the right to counsel for low-income parents facing loss of parental rights through adoption in purely “private” cases8 (finally catching up with Oklahoma).

“Civil Gideon” supporters have taken their advocacy state to state, relying largely on interpretations of state constitutional due process and equal protection requirements, or convincing legislatures that expansion is proper as a matter of sound public policy. The U.S. Supreme Court precedent for non-criminal right to counsel under the U.S. Constitution is narrowly circumscribed.9 The present constituency of the U.S. Supreme Court likely discourages seeking extension of these “rights” as a matter of federal constitutional law.       

OKLAHOMA ON THE FOREFRONT

Oklahoma, in many ways, has been on the forefront of recognizing a civil right to counsel where constraints on physical liberty and interference with certain important relationships were implicated. This is, perhaps, appropriate by virtue of the “open courts” clause contained in Oklahoma’s Bill of Rights that, while common in state constitutions, has no federal analog. I recall attending national child welfare conferences in the ‘80s when Oklahoma’s statutory scheme for granting appointed counsel for low-income parents in abuse and neglect (now deprived child) cases was the envy of many so-called “progressive” states, as was our right to jury trial in certain cases. Oklahoma’s legislature has been responsive to the demonstrated need to expand the right to appointed counsel. Several years ago I served on the Adoption Law Reform Task Force, when that group recommended, and the legislature established, inter alia, the right to counsel for parents whose children were sought to be adopted without their consent, as well as assuring counsel for the subject children.

Unfortunately, Oklahoma’s reach may exceed its grasp when it comes to realization of this promise. As underfunded as our state’s defender system may be when it comes to criminal proceedings, the civil side of the right to appointed counsel suffers even more so from the lack of funding, human and other resources, and a comprehensive approach. Furthermore, the problem extends beyond the poorest and the neediest among us. It extends to that ever-dwindling middle class as well. Unrepresented parties at all income levels appear daily in family court, housing disputes and consumer credit claims. Jobs, lives and the futures of entire families — their living arrangements, their security, their homes and their possessions — often depend on the outcome of these cases. The result is an increase in homelessness, bankruptcy and domestic strife not just among the so-called poorest of the poor, but also those households without the disposable means to hire private counsel but still having too much income to qualify for LSC programs and associated pro bono services. Only through the recognition of a right to counsel in “safety net” cases, coupled with a comprehensive plan to make that right effective, can we resolve the disparity between what exists, on the one hand, in our law books and, on the other hand, the reality within the courtrooms.

Those counties with a public defender system typically use that resource to fulfill this obligation. However, those counties without must depend on their own, usually limited, resources. When these “civil” appointment cases were removed from the purview of the Oklahoma Indigent Defense System a number of years ago, the burden was cast on local courts to either budget for these appointments or to create their own volunteer attorney panels. Either option carries the risk of dilution of the right to effective counsel based on economic or resource limitations at the local level. One often hears the term “unfunded mandate” invoked to describe the burden placed on local courts. Certainly, there is work to be done on the state level to improve that situation.

OPPORTUNITY FOR VOLUNTEERS

Here again is an opportunity for volunteer-minded Oklahoma attorneys to make the civil justice system work more effectively. It is an opportunity to be embraced rather than feared. Many Oklahoma lawyers volunteer on one of the local Legal Aid offices’ pro bono panels and thereby increase the capacity of Legal Aid to make, as its mission statement aspires, “equal justice for all a reality.” The kinds of cases assigned to these volunteer lawyers include those not yet recognized as obligatory for appointment, but nonetheless have extremely important consequences for low-income families throughout Oklahoma.

Local courts also need the help of lawyers to assure not only that appointment mandates can be followed, but that the parties receive effective assistance. While some courts provide for a fee, these typically cannot cover the cost of truly effective representation. Find out if the court in your county has created a volunteer panel to provide representation in those civil cases where the mandate exists. Then, when called upon, step up and help improve the capacity of these panels to serve the public, whether adequately compensated or not. Our highest calling is to ensure that justice is actually done within our justice system, whether criminal or civil. Those who have done so attest to the immense satisfaction of using their skills for the common good.

Mr. Taylor is the executive director of Legal Aid Services of Oklahoma and an OBA Access to Justice Committee member.

1. 372 U.S. 335 (1963).
2. Oklahoma requires appointment of counsel in any civil contempt proceeding where incarceration is a possible remedy and the respondent is unable to afford counsel. Rule 29, Rules for the District Courts of Oklahoma, Title 12, Ch. 2, App. See also Walker v. McLain, 758 F.2d 1181 (10th Cir. 1985).
3. Cf. “civil commitment” proceedings, where, loss of physical liberty is certainly implicated, albeit not “incarceration” per se.
4. For example, a court must provide a pregnant, unemancipated minor with “counsel” upon her request, when approval for an abortion is sought. 63 O.S. ‘ 1-740.3(B).
5. This listing included as separate requirements appointments for different parties within the same type proceeding, such as low-income parents and the children involved in “deprived child” cases.
6. Quoted in Shriver Center press release at www.povertylaw.org/about‑us/newsroom/news‑releases/
CRJlAgReleaseProductionJuly312006.pdf (July 31, 2006).
7. New York Law Journal online, www.nylj.com, March 11, 2008.
8. Louisiana Children’s Code, Art. 1245.1.
9. See, e.g., Lassiter v. Dept. of Soc. Serv., 452 U.S. 18 (1981). There, even where permanent severance of parental rights was at issue, the court refused to adopt a per se rule.
10. Okla. Const., Art. 2, Sec. 6