Wisconsin High Court Asks For Study On ‘Civil Gideon’ Options

Saying it recognizes that thousands of its citizens are unable to afford legal services in civil cases, the Wisconsin Supreme Court is asking the state Joint Legislative Council to study how to improve legal access for those who cannot afford a lawyers. The Council’s role is to establish special committees to study major issues and recommend legislation every two years.
The Wisconsin Bar Association website reports that “… the court notes it has considered several other rule changes over the years to increase access to civil legal services, including a so-called Civil Gideon petition, which would require courts to appoint counsel in certain civil cases. The court acknowledged the need for increased legal services but did not approve the Civil Gideon petition for lack of funding. Funding remains an issue for the court system.” The “Civil Gideon” movement, led by programs in San Francisco and New York, is the idea that certain civil cases should include a right to an attorney similar to that provided criminal defendants. It is named after a landmark case that made criminal representation the law of the land.
In its  press release last week. the court noted that one objective of a proposed Wisconsin Joint Legislative Council study committee would be to “brainstorm other possible sources of assistance and help to plan the most effective means of delivering services.” Read more at the WisBar website: State Supreme Court Seeks Legislative Study on Access to Civil Legal Services.

Thousands in St. Louis land in ‘debtor prisons’ for not paying a court fee

The Atlantic magazine has a new report out about “debtor prisons” in the St. Louis area, and it’s nothing short of alarming. The story by Whitney Benne and Blake Strode traces the problem all the way back to the pre-Civil War Dred Scott decision and includes details about how fairly routine municipal tickets – like for “saggy pants” – end up putting people in jail.
The report notes that “… as the recent deluge of reports and litigation confirms, and many have long known, thousands of people throughout the St. Louis metropolitan area are routinely sent to jail because they cannot pay local court fines and fees. These people are poor, and they tend to be black. While there are many terms to describe this—including, importantly, unconstitutional, —there is one with historical resonance reserved for such a practice: debtors’ prison.
The offer background: “… today, the ‘debts’ that lead to incarceration take the form of monetary penalties established and enforced by municipal courts. For many people throughout the St. Louis region, the nightmare of debtors’ prison is a recurring one: Each time a payment or court date is missed, the court issues another warrant, and the individual is subject to arrest, jail, and additional fines and court fees.
It is a case study in how the “gray area” of government activity, in this case charges that are serious enough to land you in jail but not “criminal” in the sense you have a right to an attorney, end up with significant jail time. Prepare your outrage meter and read the entire report: Debtors’ Prison in 21st-Century America.

Dallas Newspaper Reports From ‘Chaos’ Of Backlogged Immigration Court

NM_01Patnaik1The Dallas Morning News has an important new report on the U.S. Immigration Court backlog, highlighting the case of a Korean man who “… has been in America long enough to raise two sons and run a family-owned doughnut shop in Irving. After years of worrying, he thinks he’s about to find out his fate. Things look promising. But [the judge] sets a merit hearing for Dec. 6, 2017.”

Reporter Dianne Solis makes the point that the man is “… caught in an immigration court system that is bursting with huge caseloads and stressed by a seemingly endless shortage of judges. The U.S. immigration court backlog is at a record 474,000 cases — nearly triple the number from a decade ago. The average case now takes two years to wind through the courts. Some can take five.”
One interesting think is that the report notes that the Immigration Court backlog “annoys both the political left and right. U.S. Rep. Jack Ratcliffe, R-Heath, called it a ‘de facto amnesty’ at a recent congressional hearing. Immigrants live in the U.S. for years waiting to find out whether they can, well, live in the U.S.”

But, the report continues, “… Democrats complain that the courts need more money to operate smoothly. The nation’s immigration courts have long functioned like an orphaned child of the immigration system. The courts’ budget equals about 2 percent of total federal funding for immigration law enforcement this fiscal year. Underfunding the courts ‘undermines justice,’ U.S. Rep. Sheila Jackson Lee, D-Houston, said at the same hearing.”

The DMN also backgrounds that Immigration Court is civil, so there’s no guarantee of an attorney as their would be in criminal court. That’s important because, Solis notes, “… an unrepresented immigrant has a greater chance of losing, of being ordered removed from the U.S. That came into harsh light recently with the surge of Central American mothers with children. In a study by the Transactional Records Access Clearinghouse, a Syracuse University nonprofit, of such cases, about a quarter of those who were represented by attorneys were allowed to stay in the U.S. Only 1.5 percent of those who didn’t have attorneys were allowed to stay.”
The story is basically an indictment of the whole Immigration Court process with the only good point being a promise of more judges soon if certain things work out.

Read it here: Chaos, backlogs straining immigration courts

Houston Press Outlines How  Broken Immigration Courts Really Are

Illustration by Brian Stauffer used in a report by The Houston Press, "Immigration Backlog Bounces Thousands of Cases to Late 2019," 2/10/16

Illustration by Brian Stauffer used in a report by The Houston Press, “Immigration Backlog Bounces Thousands of Cases to Late 2019,” 2/10/16

The Houston Press newspaper starts with immigration attorney John Nechman explaining how busy he used to be before “all of his removal cases scheduled to be heard in Houston’s downtown immigration court were reset to the same ten-day span in November, 2019.” And he says “it’s like that for every immigration attorney in town.” Obviously, the report points out, there’s no way all the cases actually scheduled for November, 2019 can be heard – it seems like a good holding date that’s still in this decade.
There are thousands of cases in Houston and also San Antonio and speculation is that they will actually get bumped back into the next decade. Nechman explains the irony: “good” cases, likely to be allowed to remain in the U.S. get the shaft because they remain in legal limbo for years and years; meanwhile, “bad” cases likely to get sent out of the country get years and years to become part of the culture and remain in the U.S.  Houston has the most pending cases in Texas, and is nationally third behind Los Angeles and New York City.
If you’re among those who feel like the immigration court, which is actually an administrative function of the Justice Department and not a federal court at all, has become dysfunctional with its 450,000-case backlog, then this story confirms your worst fears.

Justice Scalia Was Leader In Civil Justice Decisions

Photo Credit: The U.S. Supreme Court is seen on Saturday in Washington, DC, following the announcement of the death of Supreme Court Justice Antonin Scalia. NPR report, 2/15/16

Photo Credit: The U.S. Supreme Court is seen on Saturday in Washington, DC, following the announcement of the death of Supreme Court Justice Antonin Scalia.
NPR report, 2/15/16

The political and criminal-law fallout from the sudden death of U.S. Supreme Court Justice Antonin Scalia is, of course, being widely discussed as President Obama prepares to nominate a successor. But NPR has done a good job at detailing a half-dozen cases that really illustrate how much Justice Scalia sculpted the modern civil litigation landscape.

For example, remember the huge Wal-Mart lawsuit over treatment of female workers? NPR backgrounded the case: “The issue before the Supreme Court was whether female employees as a group could be certified as a single class, suing Wal-Mart at a single trial. Lawyers for the women introduced evidence showing that female employees held two-thirds of the lowest-level hourly jobs at Wal-Mart, but only one-third of the management jobs, and that women overall were paid on average $1.16 per hour less than men in the same jobs, though the women had more seniority and higher performance ratings.”

Scalia was widely noted as a reason Wal-Mart prevailed in its appeal to the high court. Other cases of illustration, like Hobby Lobby and Citizen’s United, can be found here: 6 Major Supreme Court Cases That Would Have Been Different Without Scalia

Justice Dept. Suing Ferguson Over Failure To Make Changes

Photo of Michael Brown Sr., right, at a City Council meeting in Ferguson, Mo., from a New York Times report, 2/10/16, "Department of Justice Sues Ferguson, Which Reversed Course on Agreement"

Photo of Michael Brown Sr., right, at a City Council meeting in Ferguson, Mo., from a New York Times report, 2/10/16, “Department of Justice Sues Ferguson, Which Reversed Course on Agreement”

The U.S. Justice Department is suing the town of Ferguson over its refusal to make changes in how its police and justice system operates. Ferguson, of course, is the St. Louis suburb that been the focus of a national protest over police behavior since 18-year-old Michael Brown was killed in a police shooting there is 2014. Among other problems, the city’s court system was an example of how “civil” infractions like traffic tickets could become criminal charges if court dates, fines or other procedural milestones were missed. A federal report found that the police were acting more or less as a profit-generating system for the town’s budget.


Read about the lawsuit in a very solid New York Times story.


Courts Monitor Publisher Sara Warner has written about a dangerous type of natural gas pipe that’s found in millions of American homes. It’s the focus of proposed changes in Lubbock, Texas where the mother of a man killed in a fire blamed on the pipe addressed the city council. It’s at The Huffington Post here: Victim’s Mom Questions Delay on Lubbock CSST Gas Line Reform.

Colorado Water Court Eyes ‘Right’ To Grow Marijuana

A water court case in Colorado’s high country could create new policy that impacts the fast-growing marijuana industry in the Mile High state, the Aspen Daily News is reporting in conjunction with the Aspen Journalism non-profit journalism site. The report explains that a local marijuana cultivator, which works with a local dispensary, applied in 2014 for water rights for between 2,000 to 3,000 pot plants in a 25,000 square foot facility.

Reporter Brent Gardner-Smith continued that “… in response to the High Valley Farms application, a water court referee, who initially reviews applications, asked High Valley to answer the question of whether a water right to grow marijuana in Colorado can be “lawfully” granted when the plant is illegal under federal law. Other marijuana-growing operations in Colorado have gotten their water by using existing water rights, not by applying for new rights specifically to grow pot, as High Valley Farms has done. For example, a grower might have bought land that came with water rights, or may have leased water from a district or city with existing water rights.”

The report added that, “… whether the High Valley Farms case implodes the pot industry or not, the case is on track to set legal precedent.” Pro-marijuana advocates worry that the water court could consider growing to be “unlawful” under federal law, raising doubts about the recent state constitutional amendment legalizing pot not just for medical use but recreationally as well. One of the issues is whether cultivating pot is “beneficial” use under state law.

See the report via the Aspen Daily News here: http://www.aspendailynews.com/section/home/169976

9th Circuit Revives Challenge To Odd California Liquor Law

The federal Ninth Circuit Court has revived a challenge to California’s law against compensating alcohol retailers for advertising products, saying that recent U.S. Supreme Court decisions conflict with that regulation. The lawsuit at issue involves Retail Digital Network challenging the law under First Amendment arguments. The company installs liquid-crystal displays in retail stores and then enters into contracts with people wanting to advertise on those displays. That activity is outlawed by the California law, one of the nation’s strongest.
Read more from the Courthouse News Service here.

Balt. Lawyer Group: Freddie Gray Illustrates Civil Justice Issues

Photo from The Baltimore Sun report, "Lawyers launch fresh push to get poor represented in Maryland civil courts," 2/2/16

Photo from The Baltimore Sun report, “Lawyers launch fresh push to get poor represented in Maryland civil courts,” 2/2/16

A new Baltimore-based attorney’s group is referencing Freddie Gray in its push for free access to civil attorneys in some cases like child custody decisions and home evictions, the Baltimore Sun reports. Leadership of the Access to Justice Commission says that “… Gray, the 25-year-old West Baltimore man who suffered a fatal injury in police custody last April, grew up in housing with lead paint. He agreed to convert a major lead paint settlement that would pay out over many years into a lump sum that ultimately was worth far less.”
Reporter Ian Duncan writes that the group, “some of Maryland’s top lawyers,” has “launched a fresh drive Monday to have poor people represented by attorneys in civil cases in an effort to spare the vulnerable from what they see as predatory legal practices, such as buying out lead paint settlements for cents on the dollar.”
The story quotes sate Rep. Elijah E. Cummings using language usually reserved for addressing shortcomings in the criminal justice system (as opposed to civil cases): “If you do not have justice, then you’ll have the absence of peace…. I’m seeing it more and more, and … at some point, people explode. So we have a duty.”
The idea of requiring some civil cases to have a “right to attorney” similar to criminal cases is often called “civil Gideon,” after the landmark Supreme Court case that cemented the right to an attorney so often referenced in TV programs. Some cities, most notably San Francisco and New York, have moved toward civil Gideon, often citing potential cost savings if fewer people lose their homes.
Read more about the Baltimore group here.