New Law Creates Right to Counsel
Tuesday, October 13, 2009
- Organization: Daily Journal
SACRAMENTO – Gov. Arnold Schwarzenegger has signed legislation making California the first state in the nation to establish a right to counsel for low-income people in critical needs civil cases where shelter, sustenance, safety, health or child custody are at stake.
AB 590, one of more than 700 bills that were piled on his desk awaiting action as he tried to find an end to the state’s water woes, was signed Sunday.
“It’s a step in the right direction that people in the legal community have been pursuing and exploring for a long time,” said Gary Blasi, a UCLA law professor who teaches public interest law and writes about advocacy on behalf of the homeless, low-income tenants and low-wage workers. “It’s a small step,” he added, “but an important step that will bring some reality to the motto, ‘Equal Justice Under Law,’ to some poor people in civil settings where they have really critical needs at stake.”
The National Center for State Courts has found more than 4.3 million Californians represent themselves in civil court proceedings, largely because they cannot afford a lawyer.
“This law helps ensure essential legal rights are not sacrificed simply because someone cannot afford to hire a private lawyer,” Assemblyman Mike Feuer, D-Los Angeles, the bill’s author, said in statement. “The current economic crisis and state budget cuts make this measure more critical than ever. ”
California Chief Justice Ronald M. George, who has for many years championed the issue, said in a statement that the legislation “provides an important step in improving access to justice for those most in need.”
Under the law, the Judicial Council is required to establish one or more pilot programs in selected courts across the state for three-year periods.
The pilot program will run from July 1, 2011 until July 1, 2017 and will be funded by a $10 increase in certain court fees, including issuing a writ for enforcement of an order or judgment, issuing an order of sale and filing and entering an award under Workers’ Compensation Law.
To pass the bill, Feuer altered its mechanics, agreeing to divert the revenue it creates to fund court operations during this tight fiscal year. In two years, the revenue from the increase will begin funding the pilot program.
The Assembly passed the legislation by a vote of 52-26, while the Senate passed it 23 to 13.
Julia Wilson, executive director of the Legal Aid Association of California, said she was “gratified to be a part of a bill that recognized this problem.”
“The system is based on the rule of law and the when you have people without representation, the courts become clogged and with the cuts in Legal Aid this solution was really needed,” she said.
Clare Pastore, USC law professor and co-chair of the Right to Counsel Subcommittee in California Access to Justice, said the system starts a process of eliminating the advantage financial resources can provide in legal disputes.
“We’d be appalled on the idea on the criminal side that someone could be brought to trial and stand trial, without ever having a lawyer,” Pastore said. “But that was the state of the law 40 years ago.
One day, the idea that someone could lose their job, children, health insurance – all without entitlement to lawyer – we’ll say that was equally barbaric.
“The system isn’t supposed to be a contest based on resources,” she added.
If the pilot program is successful in California, Pastore she wouldn’t be surprised to see other states implement it as well.
A similar bill was taken up two legislative sessions ago and the governor earmarked $5 million for it, but the measure didn’t pass the Legislature.
Jesse Choper, a professor of public law at UC Berkeley School of Law, said he was surprised the bill got the go-ahead this session, given the state’s budget crisis.
“I think it’s quite extraordinary, in light of the budget constraints we have now,” Choper said. “I’m somewhat surprised it passed and even more surprised it got the governor’s signature. The buck stops on his desk. The problem is, there aren’t bucks that are coming, there’s checks.”
Choper said the question of right to counsel has been dissected for almost than 50 years, since Gideon v. Wainwright required those accused of a crime the right to a court-appointed lawyer.
“This is something that has been long, long advocated,” he said. “I think this will be greeted by people who are interested in the rights of economically deprived folks as an extraordinarily important step.”