TORREY WOOD PAYNE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SOUTH BAY SENTRY DOGS, INC., Real Party in Interest.
L.A. No. 30455
Supreme Court of California
Sept. 3, 1976.
17 Cal.3d 908
Torrey Wood Payne, in pro. per., and William Sheffield, under appointment by the Supreme Court, for Petitioner.
Michael B. Weisz and Stan Gunterman as Amici Curiae on behalf of Petitioner.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Russell Iungerich, Shunji Asari and Carol Wendelin Pollack, Deputy Attorneys General, as Amici Curiae on behalf of Respondent.
No appearance for Real Party in Interest.
OPINION
MOSK, J.—Few liberties in America have been more zealously guarded than the right to protect one‘s property in a court of law. This nation has long realized that none of our freedoms would be secure if any person could be deprived of his possessions without an opportunity to defend them “at a meaningful time and in a meaningful manner.” (Fuentes v. Shevin (1972) 407 U.S. 67, 80 [32 L.Ed.2d 556, 569-570, 92 S.Ct. 1983].) In a variety of contexts, the right of access to the courts has been reaffirmed and strengthened throughout our 200-year history.
For one limited category of Californians, however, the right is more illusory than real. An indigent prisoner may be sued civilly by anyone in this state, but is unable to defend against that suit. Although a monetary judgment may pursue him for the rest of his life (
Payne (petitioner) was charged in a criminal complaint with stealing guard dogs from a business competitor, South Bay Sentry Dogs, Inc. A jury convicted him of receiving stolen property, while finding him not guilty of grand theft charges, and he was placed on three years’ probation.
Shortly thereafter, South Bay filed a civil complaint against petitioner seeking damages arising from the theft of the guard dogs. The attorney
Several months later, petitioner‘s probation in the criminal case was revoked and he was sentenced to prison. Petitioner‘s attorney asked to be relieved as counsel and requested petitioner to sign a release form, as there was little likelihood that the attorney would be paid for services rendered in either the civil or the criminal case.
The civil case soon began its inexorable progress toward trial. Petitioner‘s request of the Department of Corrections to allow him to attend the civil trial was denied. In another letter, petitioner asked respondent court to dismiss the action against him because he had not received copies of the complaint, pointing out that he was incarcerated.
In petitioner‘s forced absence, a default judgment was entered against him for $24,722. One month later, petitioner sought a writ of error coram nobis in respondent court on the grounds that he had been denied permission to attend the trial and had been denied his right to counsel. Treating the petition as a motion to vacate a default judgment (
In the Court of Appeal petitioner filed another document which was treated as a petition for writ of mandate; it too was denied. He then petitioned this court; we granted a hearing, appointed counsel for these proceedings, requested a supplemental petition for writ of mandate, and issued an alternative writ.
We must decide not only whether petitioner was unconstitutionally deprived of his right of access to the courts, but if so, what the appropriate remedy should be, and whether proceeding by writ of mandate is proper under these circumstances. As the resolution of the latter two issues depends in part on the validity of petitioner‘s constitutional claim, we begin with that question.
Contrary to the state‘s assertions,1 the force of petitioner‘s contentions is in no way affected by
The issue before us has not been squarely faced in California, although both petitioner and the state may take some comfort in the language of certain Court of Appeal decisions dealing with prisoners as civil defendants. In People v. Lawrence (1956) 140 Cal.App.2d 133 [295 P.2d 4], the court struck down a statute allowing an insurance company to recover property allegedly stolen by a prisoner, on the ground that the statute did not provide for notice and an opportunity to be heard. Similarly, the court in In re McNally (1956) 144 Cal.App.2d 531 [301 P.2d 385], ruled that a prisoner was entitled to engage paid counsel, reasoning that a prisoner‘s liability to be sued necessarily carries with it a right to defend.
The right to defend, however, has been tempered by judicial determination that a prisoner has no right to appear personally in court to protect his property. (Wood v. Superior Court (1974) 36 Cal.App.3d 811 [112 Cal.Rptr. 157]; In re McNally (1956) supra, 144 Cal.App.2d 531, 532; In re Bagwell (1938) 26 Cal.App.2d 418, 420-421 [79 P.2d 395] (dealing with a prisoner who was plaintiff in a civil suit).) Yet in none of these cases did the courts confront the dual deprivation facing an indigent prisoner.2 What is at stake is neither the abstract right of a prisoner to appointed counsel nor his right to appear personally in court. Instead, the issue is the propriety of depriving indigent prisoners of both those rights and thereby virtually denying their access to the courts.
The
For the most part this access right has been related to review of criminal convictions, particularly by writs of habeas corpus. (See, e.g., Price v. Johnston (1948) supra, 334 U.S. 266 (prisoners granted right, on case-by-case basis, to orally argue their appeals; Johnson v. Avery (1969) supra, 393 U.S. 483 (rule prohibiting inmate assistance on habeas corpus petitions struck down).) But as one federal court has noted, the due process right is much broader: “it includes access to all courts, both state and federal, without regard to the type of petition or relief sought.” (Hooks v. Wainwright (M.D.Fla. 1972) 352 F.Supp. 163, 167.) Thus, a number of courts have granted prisoners protective and assertive rights in civil actions. As early as 1914, the Virginia Supreme Court of Appeals recognized the injustice of a situation similar to that faced by the prisoner involved here: “Process at the institution of a suit is issued in
In Bagley v. Bagley (1968) 57 Misc.2d 388 [292 N.Y.S.2d 796], a prisoner who was sued for divorce sought to appear personally in court. The court concluded that “The basic issue is whether or not the defendant, in the particular circumstances of the case, will be able to establish his defense without being personally present upon the trial. If he cannot, the denial of personal presence would be a denial of due process.” (Id., at pp. 798-799.)
In the landmark case of Boddie v. Connecticut (1971) supra, 401 U.S. 371, the Supreme Court ruled that indigents could not be forced to pay a filing fee in order to dissolve their marriage. Significantly, in establishing the importance of the access right involved in the case, the court used the problems often faced by indigent civil defendants as a benchmark: “The legitimacy of the State‘s monopoly over techniques of final dispute settlement, even where some are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment of differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious problems for defendants’ rights. For at that point, the judicial proceeding becomes the only effective means of resolving the dispute at hand and denial of a defendant‘s full access to that process raises grave problems for its legitimacy.” (Id., at pp. 375-376 [28 L.Ed.2d at pp. 117-118].)
Two subsequent Supreme Court decisions limited somewhat the scope of Boddie, but did not alter the impact of the decision on the rights of civil defendants. In United States v. Kras (1973) 409 U.S. 434 [34 L.Ed.2d 626, 93 S.Ct. 631], the court found no constitutional infirmity in the requirement that an indigent debtor pay a $50 filing fee in order to obtain a discharge in bankruptcy. This decision was followed by Ortwein v. Schwab (1973) 410 U.S. 656 [35 L.Ed.2d 572, 93 S.Ct. 1172], in which the court upheld the validity of a $25 filing fee required for appellate
Each of the latter opinions carefully distinguished Boddie in two major respects. First, in both decisions the court reasoned that the underlying interest the indigent litigant was seeking to protect in court was not as constitutionally significant as the dissolution of marriage. In Kras, the court declared that bankruptcy was merely a statutory remedy, whereas decisions affecting marriage are constitutionally protected: “Gaining or not gaining a discharge [in bankruptcy] will effect no change with respect to basic necessities. We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.” (409 U.S. at p. 445 [34 L.Ed.2d at pp. 635-636].) Comparable reasoning was employed in Ortwein (410 U.S. at p. 659 [35 L.Ed.2d at pp. 575-576]).
In contrast, a defendant in a civil case seeks not merely the benefit of a statutory expectancy, but the protection of property he already owns or may own in the future.4 The distinction can be seen by hypothesizing legislative attempts to eliminate the rights involved in Kras, Ortwein, and the present case. Congress could permissibly repeal all bankruptcy laws; similarly, a state legislature is under no constitutional mandate to provide welfare payments. But absent a constitutional amendment, it is beyond question that neither Congress nor any state legislature could provide for extensive confiscation of private property without compensation. Thus the underlying right petitioner seeks to protect equals in constitutional significance the right to dissolve a marriage that was protected in Boddie.
The second major articulated distinction among the cases is that the indigents in Kras and Ortwein, unlike the couple in Boddie, were not compelled to rely solely on the courts to pursue their interests. In Boddie, of course, the indigent couple could legally dissolve its marriage only through the court system. In Kras, on the other hand, the court declared that “In contrast with divorce, bankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors. . . . However unrealistic the remedy may be in a particular situation, a debtor, in theory, and often in actuality, may adjust his debts
It is evident, of course, that the petitioner in the present case has no alternative to the court system to protect his interests. Formally thrust into the judicial process, he may not, like the indigent debtor in Kras, informally settle his dispute. And unlike the plaintiff in Ortwein, he has no alternative opportunity to obtain an administrative hearing. In this respect, his position is identical to that of the indigents in Boddie, a circumstance recognized not only by the court in Boddie, but also by the Kras court. (409 U.S. at pp. 441, 444 [34 L.Ed.2d at pp. 633-635].)
However, it is argued that unlike the inability to pay the filing fees in Boddie, petitioner‘s disabilities do not absolutely foreclose him from access to the courts. If a person cannot pay a filing fee, he manifestly cannot pursue his case in court; but the state maintains that indigent prisoners have alternative means of insuring that they will be heard. In order to ascertain the extent to which petitioner‘s access right has been infringed, it is necessary to examine the proposed alternatives.
First, it is suggested that prisoners, like other indigent civil litigants, may solicit free legal counsel. This possibility has been judicially recognized as an alternative to appointed counsel for ordinary civil litigants. In Hunt v. Hackett (1973) 36 Cal.App.3d 134 [111 Cal.Rptr. 456], the court, holding that indigent civil litigants do not have a right to appointed counsel, surmised that the result was not necessarily harsh. The court pointed to existing alternatives to appointed counsel, including services provided by legal aid societies, public defenders in some instances (
But the indigent prisoner often lacks even the limited resources of his nonprisoner impoverished counterpart. “The prisoner, a person committed to the custody of a designated state agency, is effectively severed from society. He has and receives what the custodian grants, and nothing more.” (Hooks v. Wainwright (M.D.Fla. 1972) supra, 352 F.Supp. 163, 167.) Shut off from most contacts with the world outside his prison, he is
The result, as the Supreme Court has recognized, is that “For private matters of a civil nature, legal counsel for the indigent in prison is almost non-existent.” (Johnson v. Avery (1969) supra, 393 U.S. 483, 493 [21 L.Ed.2d 718, 725-726] (Douglas, J., concurring).) The court in Johnson therefore rejected a warden‘s argument that allowing a prisoner to consult a city telephone directory for lawyers adequately preserved his right of access. In California, a State Bar committee has found that “legal services to prison inmates... are completely unavailable on a systematic basis.” (State Bar of California Model Inmate Assistance Program, Final Report: Planning/Study Phase, May 1, 1975, p. 1.) Petitioner‘s theoretical right to find his own voluntary counsel, accordingly, provides little realistic access to the courts.
The state also urges that the statutes permitting a party to depose a prisoner-witness under certain circumstances (
Similarly it benefits petitioner only minimally that he may obtain assistance from more experienced inmates, sometimes known as “jail-
In short, petitioner, as an indigent prisoner seeking to defend a civil suit, has a due process right of access to the courts which has been abridged. The state has the burden of demonstrating a compelling state interest to justify the infringement.
The denial of access also constitutes a prima facie equal protection violation.5 Indigent prisoners are denied access to the courts to defend a civil suit, while free persons and prisoners possessing the means to hire counsel retain an access right. As has been established, to be heard in court to defend one‘s property is a right of fundamental constitutional dimension; in order to justify granting the right to one group while denying it to another, the state must show a compelling state interest. (Shapiro v. Thompson (1969) supra, 394 U.S. 618, 634 [22 L.Ed.2d 600, 614-615].)
Seeking to justify petitioner‘s deprivation, the state relies extensively on Wood v. Superior Court (1974) supra, 36 Cal.App.3d 811. The Wood court listed a number of state interests to rationalize the denial of the right of personal appearance. Some of them, if legitimate and applicable, arguably support the deprivation in the present case. The court reasoned, “First, the state cannot properly bear the cost of transporting the prisoner from the prison to the county where the trial is to occur, since the trip would be for the prisoner‘s private benefit, not the state‘s [citations]. Second, prison officials and others assigned to guard the prisoner during his transportation and at the trial would be exposed to danger and unnecessary risk [citation]. Third, a rule allowing prisoners to personally attend trials might lead to spurious and time-consuming lawsuits contrived to allow them to avoid confinement in their designated institutions. Finally, extended absences from the prison, hospital or treatment center might interfere with whatever program of rehabilitation, training or treatment the prisoner is taking.” (Id., at pp. 813-814.) These purported interests must be explored.
Initially, we fail to see how providing counsel for prisoners or allowing them to appear personally could constitute the type of gift of public
A related argument by the state is that appointing counsel or allowing a prisoner to appear personally in his defense will impose a heavy burden on the public fisc. We question how substantially state costs would be increased if either remedy were adopted. By statute, a prisoner is already granted personal appearance rights in certain family disputes, probably the most common area of civil litigation for prisoners: when a proceeding is brought to terminate the parental rights of a prisoner, he has the right to appear; and a trial court may order his presence in any action in which his parental or marital rights are to be adjudicated. (
Nor do we find any merit whatever in the state‘s contention that appointment of counsel for prisoners will discourage settlement of cases. To the contrary: at present plaintiffs have no incentive to settle, as they may easily obtain default judgments; equalizing the litigation resources of the parties would likely motivate both litigants, acting through responsible counsel, to compromise the suit and to keep any damage recovery within realistic limits. It is cynical to suggest that the only incentive for a civil litigant to compromise is the expense of legal fees. If this were accurate, legal aid societies, other lawyers representing the poor, or even lawyers representing the state, would never settle a case—a demonstrably inaccurate supposition.6 In any event, the Supreme Court has held that financial savings cannot justify an otherwise unconstitution-
The second state interest advanced in Wood—protecting prison officials and the civil courts from the danger presented by prisoners—cannot justify denying the right of personal appearance and appointment of counsel. At most it supports the denial of a prisoner‘s right to appear. But even that proposition is debatable, for prisoners are now being regularly transported to criminal trials, as both defendants and witnesses, with a minimum of incidents. If the state asserts that civil courts are less able than criminal courts to protect against prisoner violence, it must explain why prisoners with marital or parental difficulties are allowed to appear in civil courts under
Third, the Wood court feared that prisoners would contrive suits against themselves in order to obtain a respite from confinement. But prisoners are far more likely to file frivolous suits as plaintiffs than they are to contrive opposition suits. The latter activity requires at the very least a confederate with enough knowledge of the law, and generally the availability of private counsel, to file proper pleadings. If this were a serious possibility, surely the state would have presented us with data that spouses of prisoners are flooding the courts with frivolous divorce or child custody claims in order to secure personal appearances under
A similar state argument was made in Boddie v. Connecticut (1971) supra, 401 U.S. 371, in support of filing fees. But the high court answered, “Not only is there no necessary connection between a litigant‘s assets and the seriousness of his motives in bringing suit, but it is here beyond dispute that appellants bring these actions in good faith. Moreover, other alternatives exist to fees and cost requirements as a
Finally, the Wood court‘s declaration that allowing a prisoner personal appearance rights might hinder rehabilitation efforts will not support the dual deprivation in question here. Although it might justify denying a prisoner an unlimited right of personal appearance in court, it does not justify a denial of the right to counsel.
Rehabilitation is undoubtedly a prime goal of imprisonment, but it is difficult to comprehend how depriving a person of the means to protect his property can aid his adjustment to society. The contrary result seems probable. As one commentator has pointed out, “Efforts to rehabilitate inmates can easily be frustrated by external events which are unsettling to the inmate and cause him to become embittered.” (Note, Resolving Civil Problems of Correctional Inmates, 1969 Wis.L.Rev. 574, 577.) One of those “external events” is a substantial default judgment that may be enforced against a prisoner years after he is released.
Another factor inhibiting the rehabilitation of a prisoner denied access to the courts is the cynicism about the legal system that such denial is likely to engender. As one prisoner put it, “It is impossible to calculate the social harm generated by prisoners’ lack of respect for the law stemming from being denied the assistance of counsel while litigating their cases in prison.” (Larsen, A Prisoner Looks at Writ-Writing (1968) 56 Cal.L.Rev. 343, 352.) While the prisoner was speaking of the denial of counsel to assist inmates in filing writs of habeas corpus, his observation is equally applicable to the instant circumstances. A prisoner is confined behind bars because of his failure to conform his behavior to the law. A successful rehabilitation program should inculcate in him a healthy respect for the rule of law. But it is highly unlikely that a prisoner could learn to respect a regime that threatens to deprive him of present and future possessions and allows him to defend his possessory rights only if he is affluent enough to afford a lawyer. The conclusion is inescapable that the state‘s interest in rehabilitation will not justify denying a prisoner his right of access to the courts.
As no state interests can thus be advanced in support of the denial of access to the courts, we conclude that such unqualified
The establishment of petitioner‘s right, however, does not necessarily mandate a particular remedy. Petitioner has demonstrated that the dual deprivation of appointed counsel and the right to personal presence in court is unconstitutional, but not that the denial of each of those rights individually is invalid. Indeed, to grant petitioner an absolute right to both appointed counsel and personal appearance would achieve the anomalous result of according him greater privileges than those possessed by an ordinary indigent civil litigant.
One possible solution to this dilemma is to accord prisoners the right of personal appearance to defend any action, but to deny indigent prisoners appointed counsel. This approach has the advantage of superficial symmetry. It appears to place the indigent prisoner in the same position as the indigent free person: each would have the right to appear, and to employ counsel if able to do so. However, as has been shown, prisoners do not have the same access to free legal services as other indigents. Equally significant, a prisoner, unlike a free person, is not able to seek out witnesses in his behalf or undertake the investigative functions often needed to defend a civil suit. When these factors are combined with the limited education and intelligence level of substantial numbers of prisoners, it becomes clear that allowing a right of personal appearance is not an appropriate remedy for prisoners seeking to defend a civil action.
Another alternative is to require trial courts to defer trial of actions against prisoners until their release. When this course of action is not prohibited by law (see, e.g.,
However, in many situations, particularly when a defendant is serving a long term of confinement, a postponement will substantially impair the interests of the plaintiff. In those cases the only feasible method of granting access rights to indigent prisoners is appointment of counsel. Whether counsel will be drawn from the ranks of legal aid attorneys, other public or privately funded lawyers serving the disadvantaged,
We do not rule that appointment of counsel is an absolute right. However, it is in many instances the only remedy enabling a prisoner to obtain access to the courts. The access right, in turn, comes into existence only when a prisoner is confronted with a bona fide legal action threatening his interests. If a prisoner is merely a nominal defendant with nothing of consequence at stake, no need emerges for an appointed attorney. Thus, before appointing counsel for a defendant prisoner in a civil suit the trial court should determine first whether the prisoner is indigent. If he is indigent and the court decides that a continuance is not feasible, it should then ascertain whether the prisoner‘s interests are actually at stake in the suit and whether an attorney would be helpful to him under the circumstances of the case. The latter determination should be comparatively simple: if the prisoner is not contesting the suit against him, or any aspect of it, there is no need for counsel; but if he plans to defend the action and an adverse judgment would affect his present or future property rights, an attorney should be appointed. (See Bagley v. Bagley (1968) supra, 292 N.Y.S.2d 796 (personal appearance of prisoner in divorce action held unnecessary where prisoner did not contest divorce); Gagnon v. Scarpelli (1973) 411 U.S. 778, 788-789 [36 L.Ed.2d 656, 665-666, 93 S.Ct. 1756] (case-by-case approach adopted to determine necessity of counsel in probation revocation hearings); Tobriner & Cohen, How Much Process is “Due“? Parolees and Prisoners (1974) 25 Hastings L.J. 801, 808.)
While this remedy will probably suffice in most cases, in other instances it may also be desirable for the prisoner to testify on his own behalf. Accordingly, when the trial court determines on motion that the in-court testimony of a prisoner defendant—whether indigent or not—is needed to protect the due process rights of the parties, it may attempt, through the Department of Corrections, to arrange the presence of the prisoner. Except in a few specified circumstances, a court has no statutory authority to command the Department of Corrections to transport a prisoner to a civil courtroom. But judges do have a constitutional duty to uphold the due process clause. Accordingly, if a
Not only should the foregoing remedies protect prisoners’ constitutional rights, they should have little effect upon the concerns of the state. Most of the state‘s arguments against granting prisoners their access rights raise the spectre of large-scale, costly, time-consuming and frivolous litigation, and personal appearances by potentially dangerous inmates in the civil courts. With the personal presence of prisoners in civil courtrooms limited to occasions when in the opinion of the trial court their testimony is necessary and in the opinion of the prison administration the transportation can be safely arranged, there will be little incentive for prisoners to manufacture suits against themselves or to prolong existing litigation. And trial courts have at all times ample means to thwart any attempts to misuse the judicial process.
There remains only the question of the propriety of a writ of mandate in the present case. Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right to performance. (
The unavailability of another adequate remedy was determined when we granted the alternative writ. (City of Torrance v. Superior Court (1976) 16 Cal.3d 195, 202 [127 Cal.Rptr. 609, 545 P.2d 1313]; Musicians Union, Local No. 6 v. Superior Court (1968) 69 Cal.2d 695, 700, fn. 2 [73 Cal.Rptr. 201, 447 P.2d 313].) And petitioner clearly has both a right to and a beneficial interest in obtaining access to the courts. Mandate is appropriate, then, if respondent court failed to perform a duty.
A court is not under a duty to exercise its discretion in a particular manner (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 79, p. 3856), but may be compelled to exercise its discretion in the first instance. (Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517-518 [90 Cal.Rptr. 729, 476 P.2d 97] (court ordered to hear retaliatory eviction defense in unlawful detainer action); Nadler v. Superior Court (1967) 255 Cal.App.2d 523, 525 [63 Cal.Rptr. 352] (court ordered to consider all evidence bearing on fitness as a mother of woman denied
In the present case petitioner‘s stake in the proceedings was undisputed, and if the court ascertained that petitioner was indigent it had no other course but to vacate the judgment and appoint counsel.9 Failure to do so is grounds for writ of mandate.
Finally, we emphasize the limits of our holding. We have not ruled that all indigents have a right to counsel in civil cases. Nor have we established that indigent prisoners who are plaintiffs in civil actions may
Let a peremptory writ of mandate issue, directing respondent court to vacate its judgment in civil action No. C 33884, and, if it finds that petitioner is incarcerated and indigent, to conduct further proceedings in a manner consistent with this opinion.
Wright, C. J., Tobriner, J., and Sullivan, J., concurred.
RICHARDSON, J.—I respectfully dissent.
While I have no quarrel with many of the generalities urged by the majority, I am unable to agree with their principal conclusion or the reasoning that leads to it. One can easily resonate to the abstract proposition that indigent prisoners should be afforded both counsel and full opportunity for a personal appearance at trial in the defense of civil suits filed against them. Yet the Legislature has not as yet seen fit to establish such procedures and in the absence of some constitutional compulsion applicable to civil actions the judicial function does not extend to this type of prison reform.
The practical difficulties presented by this case are far better resolved by action of the Legislature following that body‘s traditional study and debate. For example, as the majority apparently concede, courts simply cannot mandate the Department of Corrections to release a prisoner for purposes of attendance at civil trials. Further, there is no basis upon which courts can compel the Legislature to appropriate and expend public monies for the defense of purely private litigation. Similarly, it is doubtful that courts can indefinitely abate civil actions pending the release of a prisoner-party. The foregoing illustrate but a few of the numerous problems which must be resolved before the achievement of
The majority, relying upon the doubtful premise of a constitutional inadequacy, nonetheless, are emboldened to fashion a remedy which requires courts in civil actions either (1) to appoint counsel to serve “gratuitously” for an indigent prisoner or (2) to continue the cause for a reasonable period pending the prisoner‘s release, thus assuring his presence at trial. Preliminarily, it may be noted that under the majority‘s scheme the trial court even then does not fulfill its “constitutional” obligations solely by arranging with the Department of Corrections for the prisoner‘s personal appearance since to meet the majority‘s requirements even “. . . allowing a right of personal appearance is not an appropriate remedy for prisoners seeking to defend a civil action.” (Ante, p. 923.)
The majority‘s main premise, however, that indigent prisoners possess a general “right of access” in the sense that they are entitled to free legal representation or their personal presence in civil courts, either or both, is incorrect under existing decisions of this state. Prisoners in California enjoy only a limited statutory degree of “access” to the courts. This conclusion is consistent with
The majority note the anomaly created by their requirement that indigent prisoners defending civil cases receive appointed counsel and/or a personal appearance while the indigent nonprisoner is assured of no such benefit. Thus, the prisoner is elevated above the law-abiding citizen. The Legislature has never seen fit to effect this startling result, and for good reason. In its reluctance, thus far, to assure prisoners a
The majority‘s use of the term “right of access” to the courts, accordingly, must be understood in its proper perspective. Prisoners do have access to the courts. On the criminal side it is extensive. On the civil side it is much more limited.
The Legislature, however, has not entirely disregarded the rights of indigent prisoners in civil litigation. In 1975, enlarging upon the provisions of former section 2600 of the Penal Code, it established eight broad classes of civil rights of which the fourth is the right “to initiate civil actions.” (
The majority, however, insist that “... the United States Supreme Court has long recognized a constitutional right to access to the courts for all persons, including prisoners. [Citations.]” (Ante, p. 914.) The assertion is made with more confidence than is warranted. None of the cases relied upon by the majority to support the foregoing generalization establish any right of prisoners to resort to the courts, either in person or through
The commendable goals of affording all of our citizens, whether entirely indigent or not, prisoners and nonprisoners alike, access to adequate counsel in civil cases are gaining the attention of legislative bodies, federal and state; thus the creation of Legal Services Corporation, federally funded to make more available and accessible competent legal assistance in the civil areas. But the much needed impetus toward affording more adequate and more widely distributed legal representation in civil litigation, comes from a growing awareness of a demonstrable social need and legislative and professional policy decisions implementing it, not from any Fourteenth Amendment compulsion.
The majority rely upon Boddie v. Connecticut (1971) 401 U.S. 371 [28 L.Ed.2d 113, 91 S.Ct. 780], as establishing a general right of free access to the civil courts in favor of all indigent persons including prisoners. Boddie, however, does not constitute authority for such a proposition. The Boddie court, on the contrary, implicitly limited the scope of its holding to actions brought to dissolve a marriage. (See, e.g., pp. 376-377, 380-381, fn. 8 [28 L.Ed.2d pp. 117-121].) The Supreme Court in the more
The majority next insist that “... a number of courts have granted prisoners protective and assertive rights in civil actions.” (Ante, p. 914.) The “number” consists, however, of two cited cases and neither is in point. In Merchant‘s Adm‘r. v. Shry, 116 Va. 437 [82 S.E. 106, 108], a 1914 Virginia case, the court enforced a special state statute which provided for the creation of a committee to represent prisoners sued in state courts. Contrary to the majority‘s conclusion, this committee was a legislative device and not simply an “equitable solution” judicially created to assure due process. The other case, Bagley v. Bagley (1968) 57 Misc.2d 388 [292 N.Y.S.2d 796], involved a divorce action brought against a prisoner. The Supreme Court in Boddie has stressed that divorce proceedings represent a special situation, as previously noted, in which indigent persons are guaranteed access to civil courts. As we have observed the California Legislature has heretofore recognized this unique situation by its adoption of
No other authorities are cited in support of the majority‘s proposal. The absence of any controlling or persuasive precedent, coupled with valid policy reasons, convinces me that we should leave in legislative hands the creation of new rights which are not of constitutional origin.
At present the average indigent must face civil litigation bereft of counsel. His recourse, in propria persona, is to seek help where he can find it. This is often difficult. Two principal sources are available to him. One is the membership of the organized bar which, pro bono publico, may respond free of charge or expense to the historic and compelling
Thus imprisonment does not totally deprive the indigent prisoner of all opportunity to reach the civil courts. Access is limited and does not achieve perfect equality with nonprisoners, which inequality is an incident of the prisoner‘s lawful confinement.
Other interesting questions remain unresolved by the majority‘s formulation, among them: What of the indigent plaintiff who, in propria persona, sues the indigent prisoner? Is he also entitled, because of due process and equal protection arguments, to court-appointed counsel to represent him free of charge in his civil action against the indigent prisoner who, under the majority‘s proposal, now has counsel? Who is to bear the cost of this additional increment of legal expense? Suppose the legal representation for either indigent nonprisoner plaintiff, or prisoner defendant is wholly inadequate or ineffective without an expert witness or extensive discovery? Is this to be afforded pro bono publico?
I note briefly certain incidents of the majority holding which requires appointment of counsel for indigent prisoner defendants in civil cases where a trial court concludes that “the prisoner‘s interests are actually at stake,” and where “an attorney would be helpful.” (Ante, p. 924.) As to the prisoner‘s physical presence, the trial court is to determine whether
The foregoing procedural rules, judicially pronounced, although perhaps very loose in definition, impose upon trial courts a mandatory duty either to grant a continuance or to appoint counsel to represent, on a gratuitous basis, indigent prisoners who are defendants in civil suits. If the trial court concludes the prisoner‘s presence is “necessary” it should be “arranged” or the trial held in prison. It will be seen that two important professional and official responsibilities are invoked by the majority formulation: as to counsel—the organized bar and the practicing attorney; as to the prisoner‘s personal presence—the law enforcement and security agencies of the Department of Corrections and the local courts including judges, sheriffs, police, and marshals.
I do not know, and neither apparently do the majority, whether the number of criminal indigent civil defendants who would be affected by the majority‘s holding is large or small. The majority “doubt” that it would be large, noting the absence of any empirical evidence. They may be right or wrong, but this uncertainty alone, in my view, suggests the need for legislative inquiry first to trace the dimensions of the problem on the basis of facts not speculation, and then carefully to weigh the various alternatives. This is the procedure which has been successfully followed in analogous situations. Thus, in meeting the need for representation of criminal indigents, the Legislature adopted
In the final analysis the majority will mandate the rendition of free legal service by the bar to convicted criminals in civil cases, which professional service we have not as yet required be extended to law-abiding citizens. The majority concede that we cannot compel appropriation of monies, legislative or otherwise, for these services. This
I make two final observations on the constitutional argument as to the requirement of counsel for indigent prisoners in civil actions. For many years the California public, the bench and the bar have lived with a very important procedural institution, the small claims court (
The majority of this court in In re Tucker (1971) 5 Cal.3d 171 [95 Cal.Rptr. 761, 486 P.2d 657], rejected a parolee‘s due process contention that he was entitled to counsel at parole revocation proceedings. (Tucker preceded Gagnon v. Scarpelli (1973) 411 U.S. 778 [36 L.Ed.2d 656, 93 S.Ct. 1756], which provided a limited right to counsel in these proceedings.) Addressing a vigorous and extended dissent which argued that the presence of counsel was necessary to meet due process and equal protection requirements, the concurring opinion of this court gently chiding the dissent for “tripping over reality” (p. 180) soundly emphasized the logistical problems thereby imposed. It further identified a far larger goal circumscribed by very practical considerations in recognizing that “as an ideal a skilled member of the bar should either be available
I fully share in these practical expressions of caution and restraint and note that those wise observations, expressed in concurrence in the context of a criminal case, have even greater force when, as here, the criminal indigent faces not the heavy onus of criminal sanctions but the lesser burden of a civil judgment. In a similar vein they continue to remind us, notwithstanding the passage of five years, that while searching for commendable policy goals we will do well to pay frequent attention to the uneven ground over which we must pass in reaching them, relying always on the Legislature to play its appropriate part in the process.
I do not agree that the Fourteenth Amendment rights of a criminal indigent have been violated by denying him free counsel in, or attendance at, the defense of a civil action. I do agree, however, with the following principles, applicable to prisons and prisoners generally, recently enunciated by the United States Supreme Court in Procunier v. Martinez, supra, 416 U.S. 396: “Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no
I would deny the writ.
McComb, J., and Clark, J., concurred.