*1 Dist., Aug. B011540. Second Div. Seven. [No. 1985.] Petitioner, QUAIL, DAVID ANGELES JUDICIAL
THE MUNICIPAL COURT FOR THE LOS COUNTY, DISTRICT OF LOS ANGELES Respondent; INTERCHANGE, INC., UNION Real in Interest. Party *2 Counsel
David Quail, in pro. per., Mark D. Rosenbaum, Hoffman, Paul L. Joan W. Howarth and James J. Preis for Petitioner. DeWitt Clinton, W. Counsel, County Nicklin, and H. Anthony Senior Deputy County Counsel, for Respondent.
Paul M. Guyer and Evan L. Murri for Real in Interest. Party Opinion
THE COURT.* from a issued re- Petitioner’s appealjudgment by the court in spondent favor of real in its unlawful party detainer action against Lillie, J., J., Johnson, * Before P. Thompson, J. Court of Los
him is in the of the pending Appellate Department contends the instant Angeles County. proceeding petitioner principally did not out the settlement respondent carry engrossment properly of the settled statement on settled statement engrossed appeal, *3 certified the not forth the in by does set respondent accurately proceedings Court, (Cal. the trial court. Rules of rules 12, 1985,
On June on the By this court all stayed proceedings appeal. 26, 1985, de- order issued June we referenced the matter to the appellate conducted, and writ- with directions that an partment evidentiary hearing court, ten thereafter be submitted to this on issues:1 findings following certified court by municipal Does the settled statement engrossed of February case No. A65074 set forth the oral accurately proceedings 16, 1984, insofar as are material to the determination on points they petitioner’s appeal?
(2) Was the settlement and of said settled statement properly engrossment carried out to the of rule 127 of the California Rules pursuant provisions Court?
An on department July was conducted evidentiary hearing by appellate 8, 1985, were present which all of the during parties proceeding 22, 1985, Thereafter, by appellate depart- counsel. on represented July ment the follow- by submitting with this court’s order of reference complied written ing findings: in A65074 taken notice of the court file
“Having judicial municipal A16411, to the court this court finds with superior respect file second as follows: question Rules
“(1) the California Rules Petitioner complied fully 127(a), 121 and serving his notice respectively, appeal filing his on filing statement proposed appeal. “(2) file, Real did not nor file party attempt proposed interest amendments to petitioner’s proposed statement on appeal.
“(3) The court set June to settle as the date of hearing statement on appeal. depart permit appellate stay of modified to proceedings previously 1 The issued was ' hearing.
ment to conduct such were present in interest for real party and counsel “(4) Both petitioner The court on the statement appeal. to settle on June at the hearing 31, 1984. July said hearing continued improperly filed a document in interest
“(5) On June 1984 real party not timely was which document Statement on Appeal’, entitled ‘Proposed not it was because amendments to statement proposed filed as proposed as required statement of the proposed filed within ten after service days of Court. 127(a) of the California Rules Rule settle the state- 31, 1984, hearing to which
“(6) On the date July *4 however, no continued, ap- petitioner appeared; ment on had been appeal to settle The hearing in interest. was made on behalf of real party pearance 2, 1984. the statement on was continued August appeal 1, he on August court that “(7) Petitioner to this orally represented of the a continuance the clerk of court and requested telephoned respondent that clerk informed petitioner to settle the statement on The hearing appeal. continued; would be hearing she him of the date to which the would advise file does not court however, The municipal was not so advised. petitioner the reflect call. telephone to settle hearing held the
“(8) On court August respondent was made An on was not present. appearance statement Petitioner appeal. in interest real party The court ordered on behalf real interest. party for the court’s approval. the settled statement on engross appeal the trial on bears “(9) statement appeal settled purported engrossed judge’s signature. finds, to question with respect this court
“Based upon foregoing, on appeal settled statement that the settlement and of the engrossment of Rule to the provisions herein was not carried out properly pursuant following respects; at least in the of the California Rules settle 127(c) that the shall judge “(1) to the of Rule Contrary requirement settled’, it as engross shall appellant and fix the time ‘in which the statement on appeal. the statement ordered respondent engross the trial judge statement settled served with a “(2) copy Petitioner was never had no op- and therefore order in accordance with the judge’s engrossed error to compound fact served make thereto. This objections portunity in the foregoing paragraph. reflected
“(3) trial Although signature engrossed set- bearing judge, tled statement does not contain the trial certification the state- judge’s ment accurately reflects the truly proceedings February oral 1984. Nor so that the statement does reflect said parties stipulated (See Potter Solk proceedings. 871- Cal.App.2d Supp. “This court has not determined whether settled statement engrossed sets forth accurately the oral 1984. That de- proceedings February termination not made time because that remand to re- appears spondent court will be on order to settle the statement required appeal with the (Italics of Rule 127.” conformity requirements original.) We adopt foregoing findings appellate department conclude therefrom that is entitled relief. petitioner
We further which conclude this is an matter in to issue appropriate (Code Proc., writ of mandate in the instance. Civ. peremptory first 1088; Fasteners, also see Palma v. U.S. Industrial Inc. Cal.3d § *5 681 P.2d It Ordered
Accordingly, Is as follows: engrossed settled statement certified case August No. 13, 1984, A65074 filed in and the in case appellate department September (Code Proc., No. A16411 is hereby stricken. Civ. § issue, Let a of writ mandate peremptory requiring respondent (a) court grant to to from the date of days issuance petitioner twenty of the remittitur in this and file to serve a condensed statement proceeding,2 127(a) oral to of the California proceedings rule Rules of pursuant Court, (b) and thereafter to to the statement proceed settle conformity with the of provisions said rule 127.
In all other respects the is denied. petition order, insofar with this and Except necessary opinion comply 26, 1985, order issued stay herein June and modified June shall continue in force of an en- filing appellate pending department settled court grossed statement certified pursuant properly respondent hereto. 25(a),
2 Seerule Rules Court. from the days final as this court ten This shall be deemed opinion (Cal. 24(c).) rule date hereof. Rules in the J., I concur issuance
JOHNSON, Concurring Dissenting. However, I from the cursory far as it dissent writ as peremptory goes. counsel on appeal denial of further appointment petitioner’s requests trial. indigent by granting This court has is already recognized petitioner Thus, the him in forma only leave this proceed appeal pauperis. ad- this deprive issue whether California courts can used lawfully without af- of a civil defendant valuable mittedly indigent property rights him the defend him and his effectively legal needed to fording lawyer I under both forums. should be appointed these am opinion due law constructions of California common and California which are to the run of defendants. equal protection applicable general addition, however, grant other considerations support constitutional average free counsel even the impoverished particular petitioner is to naked in California’s civil court- litigant remain assistance legal rooms. Indigent Incompetents
I. Who Are Defendants Civil Mental Appointment Cases Are Counsel Under Due Process Entitled Clause of Federal and California Constitutions he Quail
Petitioner not because lawyer just asks of a because This mental money infirmity but he has mental problems problems. *6 is confirmed handwritten by rambling, confusing the lengthy, disjointed, Quail series It further supported by of filed with this court. is petitions Quail’s disability claim income is a mental pension. his main source of Thus, him, courts lawfully the issue is narrow—can California very lawyer him a an of without deprive rights giving valuable property where himself in those forums. he is of mentally incapable defending before
To
many years
ask this
would
to answer it. For
question
seem
Sixth Amendment guarantee
States
United
incorporated
Wainwright
v.
(Gideon
of free counsel into the Fourteenth Amendment
792]) it relied on
due
Significantly,
line rules
from this
bright
emerge
pre-
Gideon era is that due
does not tolerate
to a mental
process
denial
counsel
As the court
in a
incompetent.
Massey
observed
unanimous
opinion
135, 138,
Moore
348 U.S.
108-109
L.Ed.
75 S.Ct.
145]:
insane,
“No trial can be fair that leaves the defense to a man who is
unaided
counsel, by
who
reason
his
by
of mental condition stands
helpless
alone before the
Even
court.
the sane
discov-
layman may
difficulty
in a
case the defense which
Gibbs
ering
particular
the law allows. See
Burke,
This same unanimous court in made it Massey v. Moore clear litigant need not be trial in to be stand order deficient incompetent mentally for due “One enough process mandate of free counsel. might appointment not be insane in the sense of yet trial and lack being incapable standing (348 stand trial benefit of capacity without counsel.” U.S. p. L.Ed. at need com- we not find Similarly, petitioner requires mitment a mental institution or of a conservator in order to find he lacks the mental to defend capacity himself California courts.
It is true Massey v. Moore and like cases arose in context of criminal Nonetheless, proceedings. articulated minimum demanded they standards process—a due clause which to civil well as criminal as cases— applies not the Sixth Amendment which If to the latter. it is not applies only merely difficult but for a mental to defend himself without impossible incompetent in a criminal to do prosecution, it him so just impossible And, a civil case. even due can be twisted to some- process eventually how tolerate on normal task of defending imposing poor people difficult their in the courts without can never so property rights lawyers,, as to foist task on whom it be an stripped meaning those for would *7 impossibility—mentally That is tantamount to incompetent poor people. sanctioning legalized the coercive of the state to force robbery—using power defenseless to surrender people meaningful their without property hearing. free counsel for extend the
Appointing only right would to petitioner to counsel civil it would small very category litigants. Accordingly, courts, not have significant ramifications for the legal profession, did, 585-591, (But rest of the infra.) if it see at legal system. discussion pp.
579 at so be accomplished toward step equal justice Seldom can such major little cost. Indigent Right All Civ- California for A to Counsel Exists in
II. and Law the United States the Common il Defendants Under California Constitutions inchoate Quail an com-
The denial of to also overlooks counsel petitioner since 1850 and law which existed in California mon counsel Court in Fur- the California 1919. recognized by Supreme was implicitly thermore, of con- the existence fails to majority’s ruling acknowledge cases. of his to counsel in civil Independent stitutional right appropriate condition, Quail I mental would hold petitioner qualifies under law and the due equal free counsel both the common clauses of national and state Constitutions. our protection An Civil Exists Right Litigants A. Inchoate to Free Counsel Indigent Under Common Law California inchoate California an
Indigent litigants possessed 1850, after this state’s shortly civil cases under the common law since 913, (In re 954 Cal.App.3d Constitution was Javier A. adopted. the “common law of (dictum).) fn. Since that date 386] with our consti- far as it to nor inconsistent England, so is not repugnant this state.” tution and is the courts of laws” “the rule decision all 4468, (Pol. Code, Code, in Martin v. Superior now Civ. 22.2 quoted § § Political Code 135].)1 Court P. At the time Cal. 292 [168 law indigent section 4468 was common English provided adopted, Moreover, with a litigants forma proceed pauperis. to the assistance in forma entitled English litigants pauperis indigent counsel without appointed charge. Cali- indigent In 1919 ruled that the California Supreme expressly conferred fornia were pauperis right entitled the same forma Court, on The before the indigent 1850. case Englishmen prior of wheth- Martin v. involved the issue 176 Cal. acknowledged er an of court fees. court entitled waiver as “the whole applicable English by 1 The law California courts common has been defined statute, stood, when at time the code body jurisprudence influenced as it that, great . handmaiden adopted. was And also . . section more than that it embraced law, (176 definition has been coadjutor equity.” Cal. This common cases, Coupe Chevrolet e.g., People followed later v. One 1941 832]; Cal.2d Net Cal.2d 286-291 v. Purse Seine P.2d Moore *8 433], 1]; P.2d People Cal.App. P.2d Richardson that no California Thus, statute for waiver of court provided costs. the court looked to the English common law it in as existed 1850. The court rested its decision on definitions of the common law in forma English pauperis found in the commentators, writings Black- leading English Commentary stone and Blackstone, Marshall. The court first from quoted (1780): are, “‘And (Stats. VII, . . . statute paupers Hen. c. on Law 12), to have original writs and subpoenas gratis, and counsel and attorney assigned them costs, without fee; (176 are excused from . . .’” paying 294.) (Second Cal. at p. added.) italics Blackstone’s definition Supporting of the English common law in forma the court right, “Mar- pauperis quoted shall in his ‘Law of Costs all Suits and in Courts of Common Proceedings 347),” Law’ (p. as follows: “‘With a view to enable such as poor persons have not ability to pay incidental to the expenses of an action prosecution to enforce shown, their rights, they may, such be ad- upon inability being mitted to sue in pauperis. When so admitted the plaintiff exempt forma fees, counsel, from the of court payment and he is entitled to the service of an attorney, who (176 render their without services reward. . . .’” Cal. at 294-295.) (Second pp. added.) italics
In Martin v. Superior was petitioner already represented by counsel on a fee basis. Hence the court contingent had no reason to apply the right-to-counsel component common law in forma English pau- But it did peris right. render choate another part Blackstone’s and Mar- shall’s definition of an Englishman’s forma pauperis right. California Court held Supreme Californians were entitled to waiver of court fees for the specific reason that were entitled they to the same in forma pauperis right indigent Englishmen. Martin,
In the intervening years since the California Supreme has not ruled whether expressly California civil are litigants entitled to an- other forma part pauperis right indigent have Englishmen enjoyed since fact, the late middle to a ages—the free the court lawyer. all, yet address this issue at probably measure because uncoun- large seled are unlikely recognize they derived procedural rights Furthermore, from the mists of early English history. any lay who persons did on this happen seldom will knowledge possess legal background skill to wend through procedural maze between them and the standing Court. Supreme however,
Significantly,
the California
Court has endorsed the
Martin rationale when skilled
were able to
another
present
ingre-
dient of the
in forma
indigent Englishman’s
pauperis
adoption
California. Thus in Ferguson
581 entitle- California’s in forma reiterated pauperis fees. Once the court again when California it existed ment was defined common law as English by was fees in California a The waiver became state in 1850. of appellate 1850 cases English prior on the that “several justified finding specifically 654.) at (4 p. a Cal.3d . . . had such expressly recognized right.” the Cal resourceful, reaches finally When some lucky indigent lay person issue, of Martin and Ferguson reasoning ifornia Court with this Certainly, in civil also to free counsel cases. right should render choate . . had recognized right.” cases to 1850 . such “English prior expressly in W. J. (See, e.g., Jones, Olfield The Elizabethan Court of v. Cobbett (1845) 41 Eng.Rep. Chancery [1967] cases pp. mentioned 324-28, at Furthermore, existed 501.) England counsel had statutory right thus had least since the of a statute of VII 1495 and Henry enactment in 1850. become common California by law absorbed part English statute reads in “And after the seid writte or writtes This pertinent part: retorned, ... . . same pou psone psones Justices . shall to the assigne noth lerned their Councelles by Councell their discrecions which shall give same, for the like Justices and in wise the same shall ing taking appoynte . shall for the same . . which attorney pou attorneyes psone psones VII, 1495; (Statute doo their duties without rewardes. ...” any Henry VII, 7; 85) Realm (transcribed 11 Hen. ch. in 2 Stat. 2 Statutes Pollock, 49), Aid— 46 & 47 Vict. ch. in S. (repealed Legal reprinted The First Years p.
It is difficult to conclusion in the field of civil litigation escape right California’s are entitled to the same in forma indigents pauperis serfs have since and this includes English medieval times2 enjoyed by the Appeal pauperis 2 Courts of held the is defined also have California in forma English County Cal.App.2d common law. 770 [53 Sutter Cal.Rptr. indigent was when California part another of that rendered choate 424] against exempted were cost bonds in lawsuits requiring deposit from a statute counsel, espe reasoning The to the government. directly applicable court’s free cially light Henry mandating appointment VH Statute of England. adoption the ‘common litigants in court “California’s Sutter held: statutory modi general, including its existent jurisprudence law’ embraced common law security was Henry (1100-1135) requiring reign ... In the I an ordinance fications. ‘ security poor present “that had not sufficient mitigated by provision for the those who power.”’ . The their . . pledge their make satisfaction to the utmost of should faith to security justify embraced waiver of power that the common-law authorities conclusion 774) (244 suspension Cal.App.2d for costs as well as of fees.” right to of bonds find a waiver analysis Another Court of the same sort of Appeal used pauperis part of the informa appeal pre-1850 England. As a result this became a on too (Roberts Cal.App.2d Superior Court right enjoyed poor people. 235 [70 *10 of free counsel. After Martin Ferguson we now await only the of the dropping next shoe.3
B. The Constitutional Rights to Free Counsel in Civil Cases Since the common law, law to counsel is so clear under California right I shall only summarize briefly the constitutional doctrines. At the threshold it should be the highlighted California Court has never in- ruled Supreme can digents be fact, denied an in constitutionally a civil action. In attorney the court reserved expressly this in the Payne question case leading Superior (1976) 908, 17 Cal.3d 926-927 553 Cal.Rptr. [132 565], P.2d The Court’s Supreme excursions into this area have only been to extend the to counsel in (Payne right civil cases not to deny v. it. Court, In re 908; H. (1978) 17 Cal.3d Jacqueline 21 Cal.3d 577 P.2d Cal.Rptr. [145 construed to allow appoint- 683] [statute ment of counsel infirmities”]; and, order “to avoid constitutional Salas Cal.3d 22 Cortez 593 P.2d Cal.Rptr. [extending 226] to counsel to civil right actions].) paternity
1. Constitutional Right to Counsel Under Due Process
Prior
rulings
California courts have established constitutional premises
sufficient to
support
right
counsel far
beyond
already acknowledged
Payne
Salas. The California
unlike the federal
Supreme
courts, has construed due
to create a
in civil cases
right
only
3 The
Appeal
Court of
decision to
right
consider the common law
of counsel in civil
cases,
Hunt
456],
v. Hackett
Cal.App.3d
cert. den.
99],
Meanwhile
cases starting
Mendoza
has created
(1958)
668
California
Court
Supreme
49 Cal.2d
P.2d
the
[321
9]
a
indistinguishable
to the assistance of counsel
civil cases which is
right
lost an
Amendment. In
a tenant
from the
Sixth
language
Mendoza
detainer action in
court
he was not entitled
unlawful
small claims
where
where
He then
de novo in
court
lawyer.
a trial
the
pursued
superior
he
he could not
would be entitled to a
Court held
Supreme
lawyer.
the small claims
while his trial
novo was
because
dispossessed
pending
de
did not
him a full
of due
The court
give
process.
explained:
measure
hearing
“
‘There can be little doubt
in both civil and
cases
right
but that
criminal
counsel,
to a
arbitrary
and that the
right
includes
hearing
appear
” (49
due
Cal.2d
refusal of such
of
right constitutes deprivation
process.’
re-
673.) (Italics added.)
held
a rule
Later the court
unconstitutional
a small claims
an
order
from
quiring
posting
undertaking
appeal
“the undertaking
court
It based
on the rationale that
judgment.
ruling
this
due
without a
taking
property,
pro-
constitutes
deposit requirement
counsel,
cess
with
and . . . such
hearing
representation by
requirement
(1973) 8
(Brooks
Court
v. Small Claims
constitutionally impermissible.”
661,
785,
1249].)
Cal.3d
668
504 P.2d
Cal.Rptr.
[105
Amendment, an accused
Just as under the federal Constitution’s Sixth
to have the assist
cannot be
of his
without “the
...
liberty
right
deprived
defense,”
interpreta
ance of counsel for his
under California due process
tions,
a due
civil
cannot
“without
litigant
property
process
be deprived
have construed
counsel.” Since
courts
hearing
representation by
for indigent
Amendment
to create a
free counsel
right
Sixth
language
defendants, the
the essentials
defining
criminal
identical
nearly
language
for much
indigent
defendants
required appointment
4 Federalstatutes
of free counsel
304 U.S.
history.
in Johnson v. Zerbst
our nation’s
Still was not until 1938
1019],
finally
Supreme
construed
58 S.Ct.
that the United States
L.Ed.
indigents in federal
Sixth
to create a
to free counsel for
Amendment
constitutional
requirement to
years
applied
felony prosecutions. It took another 25
before
court
(Gideon
Wainwright
83 S.Ct.
states.
U.S.
L.Ed.2d
due
in favor
indigent
a like construction
justifies
.5
civil litigants
to Counsel Under
Clause
Right
Protection
2.
Equal
error in the
Prior California
likewise suggest
on
rulings
equal protection
Su
denial of a
The California
counsel for
litigants.
Court,
can
has held poverty
unlike the United States
preme
is at stake.
be a
an
interest
classification”
at least when
“suspect
important
(Serrano
v. Priest
18 Cal.3d
765-766
S.Ct.
929],
L.Ed.2d
P.2d
cert. den.
the Nominal Burdens on Courts Right This Might Impose System cannot justify ig-
Fears about the legal system “intolerable burdens” on civil cases. common law or to counsel noring constitutional rights Most centuries other Western democracies have lived for decades even *13 civil cases. Poor with a to free counsel in entitlement comprehensive legal lawyer, seems to us provided cannot be assured a for him. This fair trial unless counsel is truth.”) to be an obvious of counsel indispensability recognized The Court has Supreme United States likewise how to know expected “Laymen fair as well. cannot proceedings in civil cases .. .” carefully adversaries. and counseled protect rights dealing practiced their when 94, 89, 1, S.Ct. (Railroad (1964) 84 Virginia 7 L.Ed.2d Trainmen v. Bar 377 U.S. members].) for its right provide legal plan upholding case of union to assistance 1113] [in demon- by empirical studies is What the court has termed an “obvious truth” buttressed where proceedings types of civil unrepresented litigants rarely prevail in the same strating Schmertz, (See, In The District Indigent Civil e.g., do. The those with often Plaintiff 243, 235, comparative a Commentary (1967) reporting Columbia: Facts And 27 Fed.B.J. Of litigants were so con- study per. pro. per. represented pro. and where the a likely to achieve they proved times less procedural complexities founded settlement, nine a managed to reach trial discovery case compelling never succeeded in no 109, Rubin, a four- merits.) reporting on (See p. on the and Courts also Consumers than those successful city study lawyers six times more which found civil defendants with counsel.) unable to obtain S.Ct. Rodriguez 9 SanAntonio L.Ed.2d 93 School District v. U.S. 1278], assessing . . key discovering right] ‘fundamentar . lies whether “[T]he [a (Id., at right explicitly implicitly guaranteed by whether or the Constitution.” [the is] 767, 768, Priest, cf., 43]; pp. pp. 33-34 18 Cal.3d at L.Ed.2d at Serrano is to holding fn. of an under the California Constitution constitutional status interest determining qualifies weight whether significant be accorded but not conclusive equal purposes protection.) “fundamental interest” for instance, right since 1495. for have held this right people England, 1871, and in most of nation in has existed in since it became a Germany centuries. and sixteenth the constituent since the fifteenth German states Germany Federal (Klauser Republic & Assistance In The Riegert, Legal Of man- has 584-585.) system The French legal Buffalo L.Rev. 1851, Sweden since since to survive with a to counsel aged statutory right & Gordley, (Cappelletti constitutional dates 1923. Italy’s right 347; (1971) 24 Stan.L.Rev. Aid: Modern Variations Legal Themes and Bruzelius, Assistance In Sweden Legal & Ginsburg Professional 997, 1021, Swiss L.Q. fn. Int’l & Comp. constitution clause of that nation’s construed the before the law” “equality where in all civil cases for indigents to mandate of free counsel 8, 1937, of Oct. (Judgment “the trial demands of the law.” knowledge O’Brien, WhyNot translated in Arrets du Tribunal Federal 63 I 209 [ATF] St. (1967) 28 Ohio Approach Counsel In Civil Cases? The Swiss Appointed of its a breakdown 5-7.) legal L.J. None of nations has these experienced necessary found it since to counsel. Nor has system any instituting Indeed to retreat from this commitment to justice poor people. equal trend in has been in the direction expanding these nations consistently counsel, it. contracting (Cappelletti not toward perfecting coun- & Thus there is historical Gordley, supra.) ample precedent or the courts in civil without overburdening sel cases can be implemented the legal profession. substantial course, imposed
Of even if to counsel recognizing the courts not justify burdens on the California that would legal system, nev- convenience free counsel to Californians. Official denying common law rights; er been a of constitutional prerequisite enjoyment of those rights. denial discomfort should not be allowed to excuse judicial Counsel Appointed 1. Theories Exist Legal Supporting Compensation of *14 civil defendants all indigent It is not a sufficient to refer merely response for the many counsel aid. to ready appoint to Unless court stands legal aid or- starved financially legal who away by must turned poor people or constitu- common law this referral no satisfies ganizations,10 way four during past and more budgets percent were some 25 10 Evenbefore their slashed people quarter poor serving even a years, legal organizations aid could not claim to be instance, only meet about legal aid could needing legal Angeles In Los for assistance. II, 3, 1977, 2.) Times, col. Now (L.A. p. at Aug. pt. percent of the estimated need. severely cut or to entirely to new clients many been their doors offices have forced to close percent of represent 99 able to legal organizations back on intake. But even if aid were require trial would rights to counsel indigent litigants, the common law and constitutional legal aid. beyond capacity percent who were appoint courts to counsel for the 1 civil litigants. of counsel to indigent duties to the assistance tional guarantee Given from aid. Quail legal he assistance sought Indeed alleges petitioner time, it at the present the well known services legal organizations plight from this source. assistance not to learn he was denied legal is surprising Thus, bar to fully of counsel from private we must look to effectuate the to counsel civil cases. not ap- the California government
As of of this writing opinion, civil indigent to represent funds to compensate lawyers appointed propriated for However, ap- failure to public compensation defendants. this provide common law and denial of the indigent’s counsel cannot pointed justify supra, (Payne constitutional to free counsel. rights 6.) Cal.3d fn. p. claim to
We are not faced in this case with an lawyer’s public appointed to to an indigent for the services he or she is compensation required supply civil there are tenable grounds But were the claim before this court litigant. in other A few courts for a constitutional finding compensation. to avoid taking held jurisdictions public payment required work without lawyer’s property right just compensation his product 294; 1972) (Bradshaw demanded due Ball 487 S.W.2d (Ky. process. 487, revd. United (D.C.Ore. 1964) Dillon v. United States 230 F.Supp. States L.Ed.2d v. Dillon 346 F.2d cert. den. U.S. 978 [15 rule, however. For contra S.Ct. This is far from the majority see, (1892) 5 P. County v. Klickitat Wash. authority e.g., Presby Dillon, 876]; 1077; (9th 1973) v. Lark United States v. Tyler Cir. 472 F.2d without 633), 346 F.2d have a lawyers duty represent holding in furtherance of their officers of the court.11 compensation duties as Austria, litigants, long ago legal right indigent 11 In which for created supreme compensation lawyers ap recently recognized companion right court pointed Court], provide representation indigents. (Verfassungsgerichtshof [Constitutional 1973]; An Suppl. [Beliege] Decision December Osterrechisches [Feb. waltsblatt, al, Comparative Study of excerpted Cappelletti Equal et Toward Justice: A argument was based on the Legal lawyer’s Aid in Modern Societies [1975] European Convention guarantee “equality Austrian before the law” and the constitution’s the court did not hold Rights’ prohibition against Significantly, on Human “forced labor.” repre lawyers go should without declaration of this meant that necessary public government compelled sentation. Instead it held the was to furnish with the contention that Along way, supreme funds. the Austrian court dealt to the monopoly position over access compensation should serve without because of their courts: *15 sure, lawyer position of the is government pointed professional “To be the out ... the administration professions lawyer organ is ‘an of the different from that of other because the and, such, legal representation and justice’ system gives monopoly of the him a over as true, But, proposition advantages. even if this significant advice which has economic compensation since there are justify obligation attorney the to without does not of serve obligation to serve monopolies the attendant professions enjoy other which similar without Beyond lawyer’s due claims to two process other compensation could grounds justify relief to an awarding counsel. First is the appointed indigent litigant’s constitutional to of the equal protection law. Both and theory establish reality will more provide thorough dedicated if representation are they that work. Hence in- compensated digent litigants represented by would uncompensated appointed attorneys suffer a denial of equal protection to who can afford to compared their pay lawyers. this class of Admittedly, would be much indigent litigants better off with uncompensated counsel than without counsel at any all. Nonetheless, what would they enjoy is far from equal protection laws. Their equal protection rights when especially with due coupled lawyers’ claim to would compensation merit a serious hearing. the courts
Finally,
themselves have both the interest and arguably possess
to
power
insure both
well-motivated,
adversaries are represented by
adequately compensated counsel. This is but a further
expression
inherent
judiciary’s
to
power
insure its
ability
its re
perform
properly
sponsibility
fairly
(Mill
the cases which come before the
deciding
courts.
holen
Riley
69],
Cal. 29
P.
court has inherent
holding
[293
clerk;
power
appoint
fix
of law
State
compensation
Brydonjack v.
Bar
1018];
California courts thus far have shied from invoking meantime, how- for the In the counsel. purpose compensating appointed ever, civil dis- this to resolve system state has chosen to use an adversary this in its has chosen to implement courts. California also putes superior can which adversary only technical system through highly Thus, educated courts can- negotiated lawyers. and skilled both not to civil unless administer effectively fairly justice When one side adversaries are counsel. competent legal represented by effect, lacks such breaks system the entire down. representation, clerks, law are as courts” are the essential to the “proper operation officers, found can they and the like which courts have probation already (See, Riley, supra, bodies Millholen v. compel legislative to fund. e.g., Cal.29; 302]; P. cases collected Nicholl v. Koster 157 Cal.416 [108 in 59 A.L.R.3d supra.) Service, Be
2. The Should Not Required, Burden Uncompensated Civil Indigent Overstated and Cannot to Counsel to Justify Denying Right Defendants mem-
No one concern its can dispute legal profession legitimate above, this not harm. whether bers suffer undue economic As discussed However, it is concern to constitutional dimension is a serious issue. rises back burner” “judicial one which the on the recently Court Supreme put to compensate ap- other the state along possible ordering grounds Cal.3d 197 Court pointed (Yarbrough Thus, must 702 P.2d final of this question resolution However, take off question await future when it does litigation. consider seriously “back burner” I would urge our branch has the to order judicial duty compensation claim func- essential to the proper lawyers appointed provide representation *17 590 run, of the trial courts. In the
tioning less long nothing appears capable our will courts deliver the oft but insuring promised long delayed “equal justice under law.” hand,
On the other even the burden on the ultimately legal placed one, profession in cases akin to this we provide unpaid representation should not overstate this burden. Petitioner is a defendant. To him grant relief would not entail of a to counsel for civil necessarily recognition plaintiffs.
Nor would the in this of free right proposed opinion require appointment counsel to raise frivolous defenses or to defend cases where insubstantial an affluent litigant would not bother to In lawyer. employ administering the common law forma from it absorbed Cali- pauperis right England, fornia has allowed trial courts to whether an has a inquire litigant “substantial enforce or before relief. granting (Majors preserve” 18]; v. Court Superior Alameda Co. 181 Cal. 280 P. Court, 299; Martin v. Superior 176 Cal. at Willis v. supra, Superior p. 994]; Witkin, 130 Pro- P.2d Cal. Cal.App. (2d 1970) Actions, cedure 1075.) ed. This is accord with the p. § practice and other nations which have England12 recognized legally California, moreover, enforceable to counsel for civil litigants.13 has been an inquiry frequently accomplished by requiring attorney review the case and file an affidavit as to its indigent’s “substantiality.” (Martin Court, 299; Willis supra, Superior 176 Cal. at p. 766, 768; Witkin, supra, cit. at Cal.App. op. of this also would not
Implementation legal deprive profession of any cases. If the of a fee compensated contingent suf- prospects appear ficient to attract the services of a the trial court can private lawyer, appro- immediate priately deny of free counsel and instruct the appli- cant to seek counsel on a fee or similar private compensated contingent basis. if the Only returns with evidence that several applicant 12 England legal now uses committees of applications solicitors who review aid. These apply single person adequate employ committees lawyer test—would a but modest means prosecute given prospects or defend this claim interests stake and the of a Oulton, Legal pages successful outcome. Matthews Aid and Advice 127. Germany, judges 13 In provided themselves decide whether free counsel is to be unreasonable, apply i.e., following prosecution or test: defense of the case must not be “[T]he pay the case must be of such a character that a reasonable man who is able to the costs (2d 1971) bringing proceedings.” 2 page would not desist from Manual of German Law ed. composed lawyers, government 189. Sweden uses local committees officials and common lawyers. for free applications citizens to screen These committees likewise ascertain whether justifiable disposition interest in the applicant has “a the matter for which he seeks (Pub. L., (6), 1972).) (May Legal Aid SFS 1972:429 aid.” varying refused to him or her need the court degrees experience represent consideration of reopen free counsel.14 appointing *18 I do not mean to court would welcome on imply any duty imposing to lawyers furnish their services to civil without indigent compen- sation even after I such warranted. Nor do it finding representation suggest would be fair to those But better that than a sizable of lawyers. proportion our be population and other vital interests violation deprived property of their common law and constitutional to counsel. The rights legal profes- sion can look to the legislature for the same relief it already gained cases, criminal modest not for admittedly generous public compensation defensible, services rendered to What is not indigents.15 morally profes- (see sionally ABA Code of 2), Prof. canon is to Responsibility, deny poor effective people access to the courts while for the or the waiting Legislature Court to authorize for members the compensation, legal profes- sion.16 time, 14 Atthe same many indigent litigants, especially cannot be denied that civil de
fendants, yet need counsel contingent are involved in cases for fee or fee which a similar arrangement case, is not a feasible example, appears alternative. Petitioner's for to be one contingent where a question. fee is out of the 15 When rights constitutional are necessary public at stake it is not support that broad exists appropriations for the required implement to rights. support important those But if this were it apparently is there for the adequate funding indigent litigants. public counsel for A opinion survey commissioned the National reports fully per Center for State Courts cent of general public the spending favor good lawyers their tax dollars to “make available anyone them,” to of who needs popular the second most possible item on the list of 13 areas justice system expenditure poll. By way mentioned in the comparison, less than half that number—32 percent—desire only to see their building prisons, taxes devoted to more percent to expanding the judiciary size of the federal percent increasing and 50 police. Courts, number of National Center for State Blueprint State Courts: A for the Future (1978) page 56. 16There is way another out posed by of the dilemma indigent civil defendant’s to free counsel appointed versus the compensation. option counsel’s That is to bar represented plaintiff proceeding from against unrepre his claim in the courts sented defendant. procedural approach This holding government would rest on a cannot compelled pay for the who are hearing indigent essential to a fair time, defendants. At the same constitutionally deprivation courts cannot sanction a property based on a proceeding where the hearing. Consequently, defendant is denied a fair open the courts are not against public affording lawsuits defendants the hearing is not a fair (or plaintiff’s and the case must be dismissed proceed least cannot unless and until the acquires course, defendant employ lawyer). means to necessarily Of this would not have to plaintiff going foreclose the from ahead if willing pay he were into the court—or special i.e., some fund—the allowing cost of hearing, legal defendant a fair fees for an appointed counsel. In no sense do I recommend happy this as a problem. deny solution to the It would represented plaintiff judicial system the use of the dispute to resolve his with another citizen. fundamentally hand, seems (On This unfair to that plaintiff. innocent the other it is hard to see how it is more unfair forcing than an attempt innocent defendant to to defend courts.) himself without counsel in our approach prevent At least would the courts from continuing to serve as aiders and deprivations property abettors in without due
Conclusion above, For the reasons recited I would be inclined to grant outright peti- tioner’s on in an request But abundance appeal. of caution I would refer the matter to the trial court for a factual determi- nation as to mental If the trial court petitioner’s his competence. reported mental condition his substantially ability himself impairs represent these I legal would counsel to him proceedings before the appoint represent further before appellate department—and any this court—for proceedings Moreover, reason, the reasons set forth in I section above. for the same retrial, should the case be I remanded for also would order the trial court *19 counsel to him in appoint those represent proceedings. If the Quail trial court was not reported petitioner mentally incompetent to effectively himself but nonetheless was I would still represent indigent, counsel for him both appoint at the and trial levels for the reasons appellate set forth section II above.
It is now some seven since the extracted the centuries barons England John, Carta from Magna “To no one will we King including pledge: sell, Carta, to no one will we refuse or delay, right justice.” (Magna 40.) It is cap. five nearly Henry centuries since VII King guaranteed poor Englishmen free counsel in civil cases. And it is nearly years since our us, own California Court reminded as was Supreme “[Ijmperfect the ancient common-law harsh it system, as was its methods and many measures, it would strike one with informed to be that the surprise credibly common-law courts . . . shut their doors . . . suitors .... Even upon poor would be greater to the reproach state of system jurisprudence it could be declared that in this twentieth ... it truly century, (Martin had said the same . . . .” thing Cal. at p.
It is far too late the 20th far too late in the of our state century, history for California courts to “shut their doors . . . suitors” effectively upon poor them the assistance of counsel in civil No by denying one seri- litigation. contends Californians have the in our civil ously chance poor slightest courts unless are free of they Yet at given charge. present poor society to commit a crime before cares him person enough guarantee (and equal protection procedural rights). of law without and common law Perhaps more significantly, fully contemplates possibility, if one sits down and explicit makes practice. reality, discrimination which remains concealed in our current otherwise we are effectively choosing represented plaintiff’s right prosecute over the defend- effectively preference certainly compelled by ant’s is not defend. This the consti- easily policy. tution nor is it defended as a matter a fair shake in our Poor can no judicial system. people longer expected to bear and our state should no tolerate the continued denial of coun- longer sel in civil cases nor the this denial injustice guarantees.
Petitioner’s for review Court was denied application Bird, J., Broussard, J., J., October 1985. C. were of the Reynoso, that the opinion should be application granted.