Page 128 - Impact: Collected Essays on Expanding Access to Justice

126
assure that the record is fully developed .28 Although an unrepresented party faced imprisonment in his child support civil contempt proceeding, the Supreme Court held that he did not have a categorical constitutional right to counsel because, in part, the proceeding could include “a set of ‘substitute procedural safeguards,’ which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty .”29
Thus, in Turner, the court’s refusal to find a right to counsel did not end the access to justice inquiry . Rather, the court required that, for due process purposes, “substitute procedural safeguards” had to be “employed together” in the absence of the appointment of counsel .30 Those safeguards include clear notice of the central issue, the use of forms or other means to elicit relevant factual information from the unrepresented party, and giving that party an opportunity to respond at the hearing to the factual issues raised in opposition to his defenses .31 It is also important to note that the Supreme Court reversed the determination due in part to the judge’s failure to ask “followup questions” after the litigant’s rambling short statement to elicit key facts or to “otherwise address” the central factual issueinthecase .32 Rather,allthejudgeaskedwas“anythingyouwanttosay .”33 TheSupremeCourt found that “[t]he record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described . . . . Under these circumstances Turner’s incarceration violated the Due Process Clause .”34
While there are strong constitutional and policy arguments against the Turner court’s rejecting a right to counsel in civil cases such as the one before it, it did emphasize that the absence of counsel does not relieve the court of its duty to provide alternative means by which the unrepresented litigant is given a full and fair opportunity to be heard, i .e ., that s/he is given equal access to justice in spite of her/his inability to afford counsel . Thus, the choice apparently made by Judge Weinstein in Floyd is not the only choice and may in fact not be a constitutionally appropriate choice at all . As noted above, that choice ignores the implications of the litigant’s unrepresented status on her/his access to justice if s/he is deprived of both a right to counsel and appropriate interventions by the court .
Access to justice is a multi-layered program that includes everything from right to counsel to plain language forms . Under some circumstances, one or more of the options within that scheme may be the more appropriate intervention . However, the focus must always remain on what is necessary under the circumstances to achieve the unrepresented person’s right to equal access to justice, not just procedurally, but also substantively and in terms of outcomes . Thus, those of us involved in this struggle must guard against analytical approaches in favor of one option that might undercut the value and availability of other options . We must also challenge courts that deflect their own due process and equal protection obligations to assist unrepresented litigants by bemoaning the failure of others to provide a right to counsel and claiming that it is inappropriate for them to “fill the void .”35 •
28 Turner v. Rogers, 564 u.S. 431 (2011).
29 Id. at 447 (quoting Mathews v. Eldridge, 424 u.S. 319, 335 (1976)) (also holding that counsel was not required since
the opposing party was also unrepresented and the issue was not complex).
30 Id.
31 Id. at 447-48.
32 Id. at 437–38.
33 Id. at 437.
34 Id. at 449.
35 Floyd, 78 F.Supp.3d at 562.
Impact: Collected Essays on Expanding Access to Justice