Writer Makes Great Case For ‘Civil Gideon’ Rights

AP/John Minchillo A protestor holds his fist in the air during a demonstration outside Hamilton County Courthouse in Cincinnati, November 11, 2016.

AP/John Minchillo
A protestor holds his fist in the air during a demonstration outside Hamilton County Courthouse in Cincinnati, November 11, 2016.

If you’re looking for a great argument in favor of a “civil Gideon” right to counsel in some non-criminal cases, you can’t do much better than an article by Rebecca Backwater-Poza posted at the Center for American Progress. Civil Gideon refers to the criminal-law right to an attorney even if you can’t afford one. The “civil” idea is that some life-altering cases, especially involving housing evictions and family law, should include representation for the poor.
She notes that: “While 90 to 95 percent of landlords are represented by lawyers before the Landlord and Tenant Branch of the D.C. Superior Court, only 5 to 10 percent of tenants have legal assistance.2 Unlike criminal defendants, parties in civil cases do not have a generalized right to counsel. While all states provide a right to counsel for at least a few types of civil cases, most parties in civil cases that involve high stakes and basic human needs, such as housing, do not have a right to representation.3
In more than three-fourths of all civil trial cases in the United States, at least one litigant does not have a lawyer.4 Figures are even starker when it comes to family law, domestic violence, housing, and small-claims matters—those involving disputes over amounts up to $25,000, depending on the state. At least one party lacks representation in 70 to 98 percent of these cases.” 
She also notes that those are only the cases that make to to court; many do not, often because people do not know their rights. It’s compelling reporting.

Native Americans Seeking Family Law Representation

We’ve noted before that one of the logical places to provide civil attorneys is family law, especially decisions involving child custody. It turns out that Native American tribes feel the same way and the Eureka Times Standard newspaper is reporting that “… a coalition of Native American tribes from across California are calling on the state’s top law enforcement office to begin investigating what it says are be systematic shortfalls and violations of tribal civil rights relating to the Indian Child Welfare Act.”

“Many of the tribes don’t have the ability to send their lawyers hundreds or thousands of miles to represent them in these courts, so you get really disjointed, disconnected kinds of representation,” said Yurok Tribal Court Chief Judge Abby Abinanti, one of seven co-chairs on the task force. “… We need some answers. The law is not being followed.”

The story backgrounds:”… passed by Congress in 1978, the Indian Child Welfare Act was created in an effort to keep tribal children with tribal families and communities. The act was passed in response to the large number of tribal children — 25 to 35 percent — being removed from their homes and being placed in foster homes, adoptive homes, or other institutions like board schools, according to the report. At the time the law passed, Native American children were eight times more likely to be placed in foster care than non-Native children, with over 90 percent of the Native American foster youth being placed in non-tribal homes, according to the report. While some progress has been made, Andreas and Abinanti said these statistics have not changed significantly since 1978.”

The regulations apply to state child custody proceedings and set regulations on how these state agencies work with federally recognized tribes in cases.

Read the story here: Report states tribal child custody laws neglected on statewide level

Medical Cannabis Parents Getting Caught Up with Child Endangerment Charges

As cannabis laws shift at a rapid clip across the country, medical cannabis patients seem to be unexpectedly caught in a web of child protective services. Such was the case for Shawnee Anderson according to Al Jazeera America. An argument over a dirty diaper turned into a loud couple’s squabble, prompting a neighbor to call the police. The fight proved to be the least of their worries as police found remnants of their medical cannabis. The couple spent five days in jail and have been fighting while their son was placed in foster care for nearly two weeks.

This story is not unusual for parents in the 23 states where medical cannabis is legal. While it is legal for medical purposes, civil issues like family law are proving tricky. The article notes that “Meanwhile, low-income families of color are more likely to face neglect charges involving pot, as they tend to live in more heavily policed neighborhoods and give birth in hospitals that may be more likely to conduct drug testing on newborns.”

As we have reported before, the lack of Civil Gideon means there is no requirement that the government provide legal services for people who cannot afford them. This puts low-income families at a significant disadvantage when going up against state child advocates well-versed in the court system. Without legal counsel, parents may lose custody of their children simply for legally consuming a drug.

See more on the story here, “Parents face child abuse investigations over pot use.

We also recommend following the national story on Shona Banda who is fighting for custody of her son, and against felony charges that could put her in jail for 3 decades. See “This Mom Faces Prison For Medical Marijuana.

More Bay Area Court Facilities Close

More court facilities are closing and more employees are losing their jobs in the Bay Area. The ongoing budget crisis is hitting Solano County Superior Court, where officials have announced cuts that include closing clerks offices, staff layoffs and shuttering the Family Law Clerk’s Office at the Solano Justice Building in Vallejo. The family law office closing means custody matters and other issues will be heard some 20 miles away in Fairfield, according to published reports.
The Reporter newspaper notes that, “… in announcing the cuts, local officials quoted California Supreme Court Chief Justice Tani G. Cantil-Sakauye in her comments on the state budget’s impact on courts. ‘This is the second year of partial reinvestment in the judicial branch after five years of severe budget cuts resulting in a reduction to access to justice. And while I appreciate the work of the Governor and the Legislature in increasing branch funding, especially given the context of this budget, the state revenues, the demands and the needs – unfortunately it is not enough to provide timely, meaningful justice to the public,’ she said. 
The Reporter also quoted local officials explaining that the current-year funding shortfall leaves the Solano courts with an $830,000 deficit going into the fiscal year. Read the story here: Solano County Courts announce closures, furloughs, layoffs for coming fiscal year

‘One-Day’ Divorce Is National Trend

Of course it’s not really “one day,” but faster, do-it-yourself, lawyer-free divorces are becoming a national trend, according to the New York Times. A driving issue is cost, reports the NYT,  which reports that “… costs vary by location, but Randall M. Kessler, a family law specialist in Atlanta, said a typical divorce with no major disagreements over assets and custody issues might cost a few thousand dollars, while cases with significant disputes can easily cost $25,000 or more

 In California, says the report, roughly three-fourths of family law litigants lack lawyers, according to  Maureen F. Hallahan, supervising judge in the family law division at San Diego Superior Court. Typically, people file initial divorce paperwork on their own, but they don’t know what to do next, so their file languishes for months. Budget cuts in the state courts reduced available personnel and made the problem worse.

 Like most “one-day” programs, the term doesn’t mean a divorce is truly started and completed in a single day — residency and notification requirements have to be met first. You must, for example, already have filed a divorce petition and served your spouse with divorce papers to participate. But the program does allow you to wrap things up in a single day, or even a matter of hours, once you meet the initial criteria. “This is designed to help people get through the system,” said Judge Hallahan.

Read the story here: California Pioneers the Court-Aided One-Day Divorce

Divorce Delay? Not If You Can Pay For Private!

Years of judicial branch budget cuts have delayed civil trials, and divorce cases have been hard-hit as family law judges focus on domestic violence orders and other priorities. While state lawmakers have been slow to react, it seems the free market is making a move: a growing trend is to have “private trials,” and it’s apparently catching on across the country.
The Tulsa World newspaper is reporting that “California-based trial consulting firm Decision Analysis has been suggesting clients use a private trial for a long time, but the procedure is just starting to gain popularity, firm president Richard Gabriel said.” He said that “I think people are starting to consider it more and more because state court budgets across the country have been severely slashed,” adding that the cuts mean fewer court staff, increasing the length of time and money it takes for cases to be completed in the public courts system.
Other advantages if you can afford to pay for judges, and sometimes juries and other costs: Private trials also provide the privacy that mediation and arbitration do. Petition for divorce and decree of divorce is public record, but unless somebody appeals to the actual court system, the conclusions of law then those specifics are confidential.

Despite all that, some studies suggest that you might actually save money because “… complicated civil cases often come out ahead financially because private trials are much quicker.” Read the story here.