05/01/75 In the Matter of Rhonda Smiley et al., Appellants

[Editor's note: footnotes (if any) trail the opinion]

[1] COURT OF APPEALS OF NEW YORK

[2] In the Matter of Rhonda Smiley et al., Appellants

[3] 330 N.E.2d 53, 36 N.Y.2d 433

BLUE BOOK CITATION FORM: 1975.NY.1034 (http://www.versuslaw.com)

[4] Date Decided: May 1, 1975

[5] Matter of Smiley, 45 A.D.2d 785, affirmed.

[6] POINT OF COUNSEL

I. Due process mandates assignment of counsel for indigent parties to a [7] matrimonial action. (Boddie v Connecticut, 401 U.S. 371; Loving v Virginia, 388 U.S. 1; Deason v Deason, 32 N.Y.2d 93; Mullane v Central Hanover Trust Co., 339 U.S. 306; Matter of Ella B. [Kurtis -- Jeri B.], 30 N.Y.2d 352; United States v Kras, 409 U.S. 434; Matter of Bartlett v Kitchin, 76 Misc. 2d 1087; Vanderpool v Vanderpool, 74 Misc. 2d 122; Emerson v Emerson, 33 A.D.2d 1022; Brounsky v Brounsky, 33 A.D.2d 1028; Jacox v Jacox, 43 A.D.2d 716.) II. Appellants' due process right to counsel cannot be implemented without assignment of compensated counsel. (Vanderpool v Vanderpool, 40 A.D.2d 1030.) III. Where due process mandates assignment of compensated counsel, the court has inherent power to order such compensation. (People ex rel. Whedon v Board of Supervisors, Washington County, 192 App Div 705; Gideon v Wainwright, 372 U.S. 335; Griffin v Illinois, 351 U.S. 12; People v Pride, 3 N.Y.2d 545.)

[7] POINT OF COUNSEL

I. Although an indigent party may have a constitutional right to the [9] assignment of an attorney in a matrimonial action, there is no corresponding constitutional right that the assigned counsel be paid or compensated. (Boddie v Connecticut, 401 U.S. 371; Deason v Deason, 32 N.Y.2d 93; Vanderpool v Vanderpool, 40 A.D.2d 1030; Matter of Bartlett v Kitchin, 76 Misc. 2d 1087.) II. A lawyer's professional responsibility dictates that he donate his services to indigent matrimonial clients without charge. (People ex rel. Acritelli v Grout, 87 App Div 193.)

[8] POINT OF COUNSEL

I. Indigent divorce litigants have a constitutional right to counsel.

[9] (Griswold v Connecticut, 381 U.S. 479; Loving v Virginia, 388 U.S. 1; United States v Kras, 409 U.S. 434; Boddie v Connecticut, 401 U.S. 371; Jeffreys v Jeffreys, 58 Misc. 2d 1045, 38 A.D.2d 431; Skinner v Oklahoma, 316 U.S. 535; Deason v Deason, 32 N.Y.2d 93; Vanderpool v Vanderpool, 74 Misc. 2d 122; Jacox v Jacox, 43 A.D.2d 716.) II. Appellants' due process right to counsel can be effectuated only by assignment of compensated counsel. (Vanderpool v Vanderpool, 40 A.D.2d 1030; Cerami v Cerami, 44 A.D.2d 890.) III. This court has the power to order payment of auxiliary costs when such expenditure is constitutionally mandated. (Boddie v Connecticut, 401 U.S. 371; Deason v Deason, 39 A.D.2d 331, 32 N.Y.2d 93; Albino v City of New York, 39 A.D.2d 853; Jeffreys v Jeffreys, 58 Misc. 2d 1045, 38 A.D.2d 431; McCandless v McCandless, 38 A.D.2d 171.)

[10] POINT OF COUNSEL

[11] An indigent's constitutional right to assigned counsel does not create an obligation on government (State or local) to provide pecuniary compensation to the assigned attorney.

[12] Unless the Legislature specifically provides for payment, attorneys assigned by the court to represent indigent parties serve, as traditionally they have, without pecuniary compensation. (Jeffreys v Jeffreys, 58 Misc. 2d 1045; Matter of Sullivan [Alesi], 297 NY 190; People ex rel. Ransom v Board of Supervisors of Niagara County, 78 NY 622; Matter of Smedley v Taylor, 269 NY 585; People v Perry, 27 A.D.2d 154; People ex rel. Van Doren v Prendergast, 214 NY 16; People v Burns, 28 A.D.2d 1039; Stetler v McFarlane, 230 NY 400; Matter of Guarino v Anderson, 259 NY 93; Jacox v Jacox, 43 A.D.2d 716.)

[13] POINT OF COUNSEL

[14] Indigent matrimonial litigants have a constitutional right under the due process and equal protection clauses of the Federal and State Constitutions to the assignment of counsel without cost, and the courts have the power and obligation to implement that constitutional right by ordering the local governing units to compensate assigned counsel.

[15] (Argersinger v Hamlin, 407 U.S. 25; Gideon v Wainwright, 372 U.S. 335; In re Gault, 387 U.S. 1; Gagnon v Scarpelli, 411 U.S. 778; People v Witenski, 15 N.Y.2d 392; People ex rel. Rogers v Stanley, 17 N.Y.2d 256; Matter of Ella B. [Kurtis -- Jeri B.], 30 N.Y.2d 352; People ex rel. Calloway v Skinner, 33 N.Y.2d 23; People ex rel. Menechino v Warden, Green Haven State Prison, 27 N.Y.2d 376.)

[16] POINT OF COUNSEL

I. It is a basic fact that government makes and implements laws [19] regulating and proscribing the conduct or relationships of members of the family unit to each other. II. The preservation of a dead marriage is socially undesirable.

[17] (Gleason v Gleason, 26 N.Y.2d 28.) III. The organized Bar is not equipped to represent indigent litigants without compensation.

[18] POINT OF COUNSEL

[19] The right to counsel in matrimonial actions will not be effectively implemented unless its constitutional basis is recognized and counsel assigned to represent indigents are compensated.

[20] (Douglas v California, 372 U.S. 353; Vanderpool v Vanderpool, 40 A.D.2d 1030; Cerami v Cerami, 44 A.D.2d 890; People v Price, 262 NY 410; People ex rel. Whedon v Board of Supervisors, Washington County, 192 App Div 705; People ex rel. Acritelli v Grout, 87 App Div 193, 177 NY 587; Deason v Deason, 32 N.Y.2d 93; Matter of McCoy v Mayor of City of N. Y., 73 Misc. 2d 508, 41 A.D.2d 929; Langan v First Trust & Deposit Co., 270 App Div 700, 296 NY 1014.)

[21] POINT OF COUNSEL

I. There is a constitutional basis for assigning counsel.

[22] (Cerami v Cerami, 44 A.D.2d 890; Jacox v Jacox, 43 A.D.2d 716; Brounsky v Brounsky, 33 A.D.2d 1028; Emerson v Emerson, 33 A.D.2d 1022; Matter of Bartlett v Kitchin, 76 Misc. 2d 1087; Boddie v Connecticut, 401 U.S. 371; Deason v Deason, 32 N.Y.2d 93; Matter of Ella B. [Kurtis - Jeri B.], 30 N.Y.2d 352; Cruz v Hauck, 475 F2d 475.) II. Assigned counsel should be compensated. (People v Price, 262 NY 410; People v Thompson, 205 App Div 581; Rudd v Rudd, 45 A.D.2d 22; Matter of Amicucci v Moore, 42 A.D.2d 701; Matter of Jennings v Jennings, 42 A.D.2d 568; Cerami v Cerami, 44 A.D.2d 890; Vanderpool v Vanderpool, 40 A.D.2d 1030.) III. CPLR 1102 is itself authority for compensation of assigned counsel. (Courtesy Sandwich Shop v Port of N. Y. Auth., 12 N.Y.2d 379, 375 U.S. 78; Matter of Coates, 9 N.Y.2d 242; Kauffman & Sons Saddlery Co. v Miller, 298 NY 38; Schieffelin v Goldsmith, 253 NY 243.)

[23] APPELLATE PANEL:

[24] Judges Jasen, Gabrielli and Cooke concur with Chief Judge Breitel; Judge Jones dissents and votes to modify in a separate opinion in which Judge Wachtler concurs; Judge Fuchsberg dissents and votes to modify in another opinion.

[25] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BREITEL

[26] The issue on this appeal is whether an indigent plaintiff wife in a divorce action and an indigent defendant wife in a similar action are entitled, as a matter of constitutional right, to have the County of Tompkins provide them with counsel or compensate counsel retained by them.

[27] The Supreme Court granted the relief substantially requested by the wives and the Appellate Division reversed. In reversing, the Appellate Division correctly held that, absent a statute therefor, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel for the indigent wives out of public funds.*

[28] The mandatory direction to provide counsel to defendants in criminal cases derives from the Federal and State cases applying Federal and State constitutional provisions. These cases recognize that the right to counsel in criminal cases means more than the right to appear by counsel, but that in the event of inability by a defendant to provide his own counsel, particularly because of indigency, the State must provide counsel (Gideon v Wainwright, 372 U.S. 335, 344; People v Witenski, 15 N.Y.2d 392, 397). The underlying principle is that when the State or Government proceeds against the individual with risk of loss of liberty or grievous forfeiture, the right to counsel and due process of law carries with it the provision of counsel if the individual charged is unable to provide it for himself (see, e.g., Argersinger v Hamlin, 407 U.S. 25, 32, 37; Mempa v Rhay, 389 U.S. 128, 134, 136-137; In re Gault, 387 U.S. 1, 34-36; Gideon v Wainwright, 372 U.S. 335, 344, supra; People ex rel. Silbert v Cohen, 29 N.Y.2d 12, 14; People ex rel. Menechino v Warden, 27 N.Y.2d 376; 383; see, also, Matter of Ella B., 30 N.Y.2d 352, 356-357, involving custody of children).

[29] No similar constitutional or statutory provision applies to private litigation.

[30] Inherent in the courts and historically associated with the duty of the Bar to provide uncompensated services for the indigent has been the discretionary power of the courts to assign counsel in a proper case to represent private indigent litigants. Such counsel serve without compensation. Statutes codify the inherent power of the courts (CPLR 1102, subd [a]; People ex rel. Acritelli v Grout, 87 App Div 193, 195-196, affd on prevailing opn below 177 NY 587). Contrary to the statement of the Appellate Division, however, there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court. The obligation of the Bar to respond is expressed in the Code of Professional Responsibility (Canon 2, EC 2-25).

[31] With respect to criminal actions and related matters arising in a criminal context, early in the articulation of the constitutional right to assigned counsel for indigent defendants it was anticipated that the private Bar could not carry the burden of uncompensated representation for the large numbers of defendants involved. Consequently, legislation was enacted to provide systematic representation of defendants by assigned counsel and for their compensation (see County Law, art 18-B; see, also, Judiciary Law, 35). Long before that, of course, there had been statutory provision for assigned compensated counsel in this State, but evidently only in capital cases and certain prosecutions involving imposition of a life sentence (former Code Crim. Pro., 308).

[32] In the several situations which arise in Family Court there are provisions for publicly-compensated counsel. These involve a mix of State and private action in proceedings affecting the liberty of persons and child custody (Family Ct. Act, 245, 248, 831, 1043).

[33] There are no similar statutory provisions to cover public provision or compensation of counsel in private litigation. Nor under the State Constitution may the courts of this State arrogate the power to appropriate and provide funds (see, e.g., Matter of Sullivan [Alesi], 297 NY 190, 195-196; Jacox v Jacox, 43 A.D.2d 716, 717). In this connection it may be observed that the State courts, in enforcement of the Federal Constitution, bypass limitations in the State Constitution, but that is not the situation in this case.

[34] As a practical matter, representation of private litigants, too poor to retain their own lawyers, has been accomplished through the discretionary assignment of uncompensated counsel by the courts, and in more populated areas by voluntary legal aid and charitable organizations (see, e.g., Matter of Bartlett v Kitchin, 76 Misc. 2d 1087, 1091). Then, too, there are the more recent Federally-funded legal services programs for the poor (see, generally, Samore, Legal Services For the Poor, 32 Albany L Rev 508, 509-512).

[35] Petitioners, on the basis of Boddie v Connecticut (401 U.S. 371), seek to extrapolate a constitutional principle mandating the provision and compensation of counsel in matrimonial matters. Assuming momentarily that the Boddie case could be so used to mandate the provision or compensation of counsel, it and the cases establishing the right to assigned counsel in criminal matters could not be used to mandate compensation by public funding. Even in expanding the criminal right to assigned counsel the courts, Federal and State, never presumed to direct the appropriation and expenditure of public funds.

[36] The appropriation and provision of authority for the expenditure of public funds is a legislative and not a judicial function, both in the Nation and in the State. It is correlated, of course, with the taxing power (see NY Const., art XVI, 1; US Const., art I, 8, cl 1).

[37] But in any event the Boddie case (supra) does not support, or by rationale imply, an obligation of the State to assign, let alone compensate, counsel as a matter of constitutional right. The Boddie case held narrowly that because the State's regulation of marriage and divorce, in the generic sense, is an assumption of governmental power, the State could not deny access to its courts in matrimonial actions by exacting a court fee from indigent matrimonial suitors. In Deason v Deason (32 N.Y.2d 93) this court extended the Boddie rationale to apply to the State's requirement that in certain circumstances costly service by publication of process could not be imposed as a precondition to an indigent bringing a matrimonial action. It was thus held that, under the constitutional principles articulated in the Boddie case, the State or its subdivisions would be required to pay the cost of such access to the courts, if such costly service of process were the only alternative.

[38] On no view of the matter is counsel required in a matrimonial action as a condition to access to the court. Of course, counsel is always desirable, and in complicated matrimonial litigation would be essential. But however desirable or necessary, representation by counsel is not a legal condition to access to the courts (see, generally, Note, A First Amendment Right of Access to the Courts for Indigents, 82 Yale LJ 1055, 1066-1067). Access to the courts was the only problem to which the Boddie and Deason cases were addressed.

[39] Of course, the indigent matrimonial litigant is not without practical recourse. The need of counsel for the indigent has been and is still being handled in large measure in populated communities by legal aid, Federally-funded legal services programs, and voluntary organizations. Thus in the City of New York the Legal Aid Society, and other legal services agencies, handle annually a large number of matrimonial cases. The slack and conflict-of-interest problems are taken up by the discretionary assignment of uncompensated counsel under CPLR 1102 (subd [a]). Moreover, because of the court's power in matrimonial cases to allow counsel fees in favor of the wife against the husband, and the availability of conditional fee arrangements, matrimonial litigation to be "unprofitable" to fee-charging lawyers must generally involve both spouses being indigent.

[40] There is still another aspect to the matter. As in so many things it is the existence of assets or income which creates complications, and so it does in matrimonial litigation. Hence, in the absence of disputes over money or the custody of children, matrimonial litigation is likely to be quite simple, and if a lawyer is required, his task quite simple.

[41] None of this is to say that the need and burden of representing indigent matrimonial suitors will not currently overtax voluntary private resources and the voluntary services available from the Bar on a noncompensated basis. The need and burden may become even greater in the future, especially with liberalized divorce laws. All of this, however, is a problem to be addressed to the Legislature which has the power to appropriate the funds required for publicly-compensated counsel.

[42] It merits added comment that among the many kinds of private litigation which may drastically affect indigent litigants, matrimonial litigation is but one. Eviction from homes, revocation of licenses affecting one's livelihood, mortgage foreclosures, repossession of important assets purchased on credit, and any litigation which may result in the garnishment of income may be significant and ruinous for an otherwise indigent litigant. In short, the problem is not peculiar to matrimonial litigation. The horizon does not stop at matrimonial or any other species of private litigation.

[43] As exemplified in some areas in the State, the undue burden which may be placed on the private Bar by assignments under CPLR 1102, may also become intolerable and some might say rank as a violation of the constitutional rights of lawyers (compare Menin v Menin, 79 Misc. 2d 285; Bedford v Salt Lake County, 22 Utah 2d 12, 14-15 with People ex rel. Whedon v Board of Supervisors, 192 App Div 705, 706; People ex rel. Hadley v Supervisors of Albany County, 28 How Prac 22, 26-27, cited with approval in People ex rel. Ranson v Board of Supervisors of Niagara County, 78 NY 622; State v Rush, 46 NJ 399, 407-409).

[44] Lastly, it would be injudicious, as some have suggested, to mandate in all matrimonial cases involving indigents the assignment of counsel without the possibility of provision for compensation. It might then be unfair to the Bar to impose such a burden on them. Inevitably too, the availability of mandated assigned counsel might very well increase the litigation in any one area, as it has indeed in the criminal area not only as to trials but as to appeals as well. All of this suggests questions of policy and fiscal impact which the courts should not venture to decide, even if they had the power, which they do not.

[45] In the meantime, courts and litigants must make do with what exists and with what lies within the powers and capacity of the courts and the Bar. The courts have a broad discretionary power to assign counsel without compensation in a proper case (CPLR 1102, subd [a]; see, also, People ex rel. Acritelli v Grout, 87 App Div 193, 195-196, affd on prevailing opn below 177 NY 587, supra). Voluntary organizations and Federally-funded programs play their role. As for the Bar they follow, as they are obliged to do, the canons of their profession in performing obligations to the indigent and duties imposed by assignment of the courts. If more is required, the relief must be provided by the Legislature. The fundamental is that the courts constitute but one branch of government. The absence of appropriated funds and legislation to raise taxes under our State constitutional system, as in the rest of the Union, is not a judicially-fillable gap.

[46] Accordingly, the order of the Appellate Division should be affirmed, without costs.

[47] CASE RESOLUTION

[48] Order affirmed.

[49] MINORITY OPINION

[50] Jones, J. (dissenting). In my view the decision of the majority falls short of the requirements of this case. I would recognize the right of indigent individuals to the assistance of counsel in litigation seeking the dissolution of a marriage. I would conclude further, however, that we are not required on the record now before us to determine how such assistance shall be assured and that it would be inappropriate for us to do so at this time.

[51] The Supreme Court of the United States, in Boddie v Connecticut (401 U.S. 371, 374) held: "that, given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." In Deason v Deason (32 N.Y.2d 93) we joined in recognition of this fundamental principle. I can only interpret the position taken by the majority today as a significant and in my opinion an impermissible retreat from that position.

[52] In Boddie, the particular barrier to access to the judicial process was the requirement of the payment of "fees and costs", including a filing fee and a fee for service of process by the Sheriff; in Deason it was payment of the cost of publication of process to acquire jurisdiction. I find nothing in either case to warrant any conclusion that it is only certain barriers that are to be eliminated or that hindrance to the availability of the judicial process is to be eliminated only if to do so will entail an economic burden of modest dimension -- i.e., that the results in these two cases are to be explained by the character of the particular obstacles there encountered or by the circumstance that the State may itself waive collection of the fees and costs in the one case and that inexpensive alternative means of service of process can be made available in the other. I read these decisions rather as confirming the right of individuals to the availability of judicial procedures for the dissolution of a marriage and as determining that such availability shall not be denied because of the circumstance of indigency. To that extent the decisions are unqualified in their enunciation of fundamental principle.

[53] In my analysis two important subsidiary issues then remain for resolution in each case in which it is sought to apply the principle. The first is to determine whether there is a barrier to the availability of the judicial process, and the second is to decide how such barrier, if any, shall be overcome for the particular litigant or prospective litigant. Boddie held that payment of fees and costs was such a barrier, but the Supreme Court in that case was not called on to determine how the obstacle was to be removed, only that it had to be removed. In Deason we held that cost of publication of process was such a barrier and went on to hold that that particular barrier should be scaled for the indigent by the payment of such cost by the county.

[54] We are called on in the present cases, then, in my view, to determine whether access to our courts is effectively denied unless representation by counsel is assured, and, if so, how that representation shall be assured.

[55] Due process requires at a minimum that "persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard". (Boddie v Connecticut, supra, p 377.) I can find no justification for departing, in the context of the present matrimonial litigation, from the position to which we have elsewhere consistently and wisely adhered -- that a "meaningful opportunity to be heard" can be realized only with the assistance of counsel. (Matter of Ella B., 30 N.Y.2d 352; People ex rel. Rogers v Stanley, 17 N.Y.2d 256; and see for decisions in criminal matters the authorities cited in the majority opinion.) Respondent does not challenge this view and it was clearly recognized at the Appellate Division in the present cases (45 A.D.2d 785). Our lower courts have recognized its validity (Matter of Bartlett v Kitchin, 76 Misc. 2d 1087; Vanderpool v Vanderpool, 74 Misc. 2d 122). To my mind it is both artificial and constitutionally impermissible to say that the State may not deny "access" (taking the narrow denotation of the word as "liberty to approach"), but, entrance having been permitted, the State may then deny effective presence and participation. At the very heart of our recognition of the right to counsel elsewhere has been our articulated conviction that "the right to be heard would be 'of little avail if it did not comprehend the right to be heard by counsel'" (People ex rel. Menechino v Warden, 27 N.Y.2d 376, 382).

[56] The much more difficult question is how counsel shall be made available in matrimonial litigation to indigents in general and to the indigent parties in these cases in particular (cf. Bartlett v Kitchin, supra, and Vanderpool v Vanderpool, supra). On this branch of the present appeal I conclude that the order of the Appellate Division should be modified in one detail and, as so modified, be affirmed.

[57] As stated, in my view indigents are entitled to be represented by counsel in litigation seeking the dissolution of a marriage.*fn1 Counsel may be provided in a variety of ways. The services of Legal Aid counsel or of counsel under other private or governmentally financed auspices may be available. The court may assign counsel.*fn2 The local Bar Association in the discharge of its traditional professional responsibility may be able to make arrangements for such representation. Legislative authorization could be given the county to assure the availability of legal services under various options (cf. County Law, art 18-B). Specific authorization could be given for the expenditure of county moneys. Provision could even be made for appropriate supplementation of welfare grants to cover necessary expenditures for the required legal services, as is now the case for necessary medical services.

[58] While in my view, it is the responsibility of the judiciary to declare the right to counsel, and perhaps in an ultimate, final sense to lend judicially available sanction to the enforcement of such right, the determination of how the required legal services shall be made available (and here I agree with the majority) is one much more appropriately to be addressed and to be resolved by the Legislature. Not only is the Legislature better fitted and more competent to determine the means which shall be mandated, and perhaps the order of recourse to several alternatives; it is also the proper source of authorization for expenditure of funds if that be necessary and for determination as to the division of financial responsibility between local and State fiscal resources.

[59] There is another important aspect which makes legislative consideration desirable. As stated, the fact that the economic impact of the provision of legal services may be significantly greater than in the instance of fees and costs and expenses of publication does not dilute the right to representation by counsel. That fact may nonetheless call for more careful consideration and definition of the level of indigency to be recognized and of the standards of proof required to establish entitlement. As in Boddie and Deason, so here, the cases reached the appellate courts with the fact of prerequisite indigency conceded or otherwise established on te record. As to this aspect of the matter, too, the Legislature has greater capacity both to make substantive determinations and to prescribe implementing procedures.

[60] Careful legislative deliberation, including the benefit of focused factual investigation and of public hearings, may unveil other relevant factors. At least a sounder predicate can be developed for the concededly difficult determinations to be made.

[61] Thus, as to implementation in general of the declared right to counsel, in my view our court should now exercise responsible judicial restraint, inviting the most careful and prompt consideration of the subject by our Legislature.

[62] As to the proper disposition of the cases now before us, I would modify the order at the Appellate Division to the extent that the reversal of the order of Special Term should be without prejudice to a further application to that court for provision of counsel, by assignment or otherwise. I note that while various assertions are made in the briefs and on oral argument, there has been no finding by Special Term that legal representation cannot be arranged for these applicants by some means other than by provision by or at the expense of Tompkins County. It seems apparent that any such ultimate conclusion could only be predicated on detailed consideration and recital of the attempts made otherwise to provide counsel and of the reasons which compelled the conclusion that provision of legal services by the county would be the only alternative. I do not find that the present record contains the necessary predicate for the direction made by Special Term in these cases or for appellate affirmance thereof.

[63] Fuchsberg, J. (dissenting). Though I agree generally with the result urged by my fellow dissenting Judges, I would offer certain specific suggestions that I think the courts should take into account in assigning counsel in these cases.

[64] One of the appellants is an indigent plaintiff wife in a divorce case, the other an indigent defendant wife in a similar action. They were originally represented by Cornell Legal Aid, but in each action a motion was made before Special Term of the Supreme Court to permit Legal Aid to withdraw as counsel, because of a conflict of interest, to allow appellants to proceed as poor persons under CPLR 1102, and to assign counsel to them at the expense of Tompkins County. The record does not specify the nature of the conflict of interest on which the motion was based, but at oral argument it was developed that Cornell Legal Aid also represented parties who were either correspondents or major witnesses in the actions.

[65] The court granted the motions, and ordered the county to provide legal representation within 30 days, specifying that, if it did not do so, appellants could themselves choose counsel, whose fees would be fixed by the court and paid by the county. The court did not make any findings either as to whether counsel was necessary to provide appellants with meaningful access to the court, or as to whether counsel could be provided in any other way.

[66] The county then appealed the order insofar as it directed payment of counsel. The Appellate Division reversed, holding that the lower court lacked the power to direct public payment for the services of counsel in a civil case, except where there is a constitutional right to counsel. It ruled there was no such constitutional right in matrimonial actions.

[67] I agree with the Appellate Division that Special Term's order must be reversed, but, since I share my fellow dissenters' view that appellants may indeed have a constitutional right to counsel, the appropriate disposition is to remand the action to the Supreme Court for further findings as to the need for counsel in this action, and, if counsel is necessary, for further consideration about the method for providing it.

I

[68] It appears to me that the problems raised by this case can best be analyzed by distinguishing between the separate questions of whether indigent parties to a divorce action have a right to be furnished with counsel, and how, if such a right exists, it is to be implemented. As part of the analysis of the second question, it is appropriate to consider whether the right can ever be implemented by directing a county to pay for counsel, and whether such a direction was proper in this case.

II

[69] Since the decision in Gideon v Wainwright (372 U.S. 335), holding that a person has a constitutional right to be supplied with counsel when his or her liberty is threatened in a felony proceeding, the law has been confronted with Gideon's implications for proceedings denominated as "civil" in which fundamental interests no less important than freedom from incarceration are threatened. These varieties of civil litigation include several areas in which personal liberty is very much at stake: habeas corpus actions, child custody cases, parole revocation proceedings, juvenile hearings, civil commitment suits, and other matters in which "certain nominally civil causes can result in a severe deprivation of liberty". (Note, The Right to Counsel in Civil Litigation, 66 Col L Rev 1322, 1332.)

[70] Boddie v Connecticut (401 U.S. 371) confirmed the importance of the personal interests at stake in divorce proceedings and held that the opportunity to be heard in such cases is an essential safeguard to the personal liberty of the parties. The State, through its courts, lawfully monopolizes the right to dissolve marriages; without such dissolution of the marriage contract, citizens are locked into untenable marriages permanently, and "more fundamentally [are confronted with] the prohibition against remarriage" (p 376). New York recognizes that where marriage relationships are threatened by serious incompatibility (Domestic Relations Law, 170, subd [6]),3 or, even more seriously, by such factors as adultery or cruel and inhuman treatment (Domestic Relations Law, 170, subds [1], [4]), the courts should be available to release the parties from matrimony and to resolve ancillary disputes involving property, support, and custody.

[71] In Boddie, only the question of filing fees was at issue. The court held that, because indigents have a constitutional right to access to the courts for divorce litigation, States must allow them to file such cases without payment of the fees. But the principle of Boddie goes far beyond filing fees; the case stands for the proposition that people may not be denied the right to obtain a divorce solely on the ground of indigency.

[72] That all real economic barriers to court access in divorce cases must fall is made clear by our decision in Deason v Deason (32 N.Y.2d 93), holding that the printing cost of service by publication could not stand as an obstacle to an indigent seeking a divorce. Though Deason involved payment of expenses to a third party rather than to the court system itself, "The effect of indigency is . . . the same . . . denial of access to the courts" (p 95).

[73] Is denial of the right to counsel a real barrier to access to court for litigants, either in civil cases generally or in divorce actions in particular? Unfortunately, in our complex society, it is. As Mr. Justice Sutherland said in Powell v Alabama, "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law."4 (287 U.S. 45, 68-69.) Generally speaking, "the inability of the unskilled litigant to prepare his pleadings, conduct adequate investigation, familiarize himself with the rules of evidence, research decisional law, or persuasively argue his case in court seems no less debilitating in most civil litigation [than in criminal cases]". (Note, The Right to Counsel in Civil Litigation, 66 Col L Rev 1322, 1331.) "Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries". (Railroad Trainmen v Virginia Bar, 377 U.S. 1, 7.)

[74] With this in mind, courts have recently been applying the reasoning of Gideon v Wainwright (372 U.S. 335, supra), to some "civil" matters where important issues of liberty or property were at stake. For instance, in Matter of Ella B. (30 N.Y.2d 352), our court ruled that an indigent parent, threatened in a neglect proceeding with termination of the right to custody of a minor child, had the right to be provided with counsel. Similarly, it was held in People ex rel. Rogers v Stanley (17 N.Y.2d 256), that indigent mental patients have a constitutional right to be given counsel to challenge by habeas corpus their commitment to an institution. And in People ex rel. Menechino v Warden (27 N.Y.2d 376), we determined that the due process clause of the State Constitution requires that counsel be given to an indigent parolee at the final hearing on revocation of his parole, a principle recently affirmed in People ex rel. Calloway v Skinner (33 N.Y.2d 23).

[75] Our New York lower courts too have been sympathetic to the need for counsel to implement the right to be heard effectively. They have held that indigents have a right to assigned counsel in matrimonial litigation. (See, e.g., Jacox v Jacox, 43 A.D.2d 716; Matter of Bartlett v Kitchin, 76 Misc. 2d 1087; and in other actions, Hotel Martha Washington Mgt. Co. v Swinick, 66 Misc. 2d 833 [due process right to appointed counsel for indigent who shows merit in summary eviction]; Matter of Linda G. v Theodore G., 74 Misc. 2d 516 [support proceeding]; Matter of White v Green, 70 Misc. 2d 28 [neglect]; Amendola v Jackson, 2 CCH Pov L Rep, par 17,476 [contempt proceeding for violation of support order].)5

[76] Nor does the need or should the right of all citizens to counsel stop here. As Learned Hand put it, "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice."6 So I most respectfully take issue with my fellow dissenters when they suggest a clear distinction between the right of indigents to be represented by counsel in litigation seeking the dissolution of a marriage as opposed to other types of civil litigation. Rather on that matter I stand with the majority when it says "the problem is not peculiar to matrimonial litigation. The horizon does not stop at matrimonial or any other species of private litigation".

[77] However, it is one thing to state that the denial of counsel is an obstruction to access to courts in the civil litigation of matters of consequence to people generally, and another to apply that principle to divorce actions in particular. Therefore, a closer examination of divorce litigation is necessary to determine whether lack of counsel is a genuine obstacle in such cases.

[78] In the State of New York, many divorce cases are extremely simple. In a very large percentage of divorces involving indigents, there exists no legal dispute whatsoever; the court performs an essentially ministerial function either because the parties have executed and complied with a one-year separation agreement under subdivision (6) of section 170 of the Domestic Relations Law, or because the parties have agreed to a dissolution on grounds of cruelty, and one party appears in court to give summary unchallenged testimony of abuse. In such divorces, it is probable that many uncounseled litigants would be able to process the litigation by themselves, perhaps with the assistance of Bar-approved manuals for the layman or of trained paraprofessionals, or with the aid of court clerks who, aware of the shortage of legal services for the poor, are usually extremely helpful in explaining procedures to unrepresented parties, and should be encouraged to assist them.7

[79] In addition, a substantial number of contested divorces involve no disagreement about the decision to end the marriage, but only difficulty in resolving issues of custody or support. Even where custody and support are initially contested, the Supreme Court may refer those ancillary services to the Family Court, whose mediation services may resolve the dispute without requiring counsel. (Family Ct. Act 464, 652, 424-425.)

[80] But indigents are also parties to divorces where the dissolution of the marriage itself is contested, or where issues of custody and support are not capable of informal mediation. In such cases, if the spouses ultimately disagree about any of these three issues -- ending the marriage, support of a spouse, or custody and child support -- in my view, the assistance of counsel is essential, because lay persons are generally incapable of effectively meeting their legal burdens where such issues are disputed. For example, a party seeking, against a spouse's will, to terminate a marriage, must first decide whether it is preferable to obtain a divorce or an annulment. If the former, the party must select the best ground for obtaining the divorce (e.g., abandonment, mental cruelty, adultery, or other grounds; see Domestic Relations Law, 170). It is also necessary to marshal evidence, and abide by technical requirements of proof. (See, e.g., Domestic Relations Law, 211.) Also, as in any civil case, a command of the rules of procedure and skill in presenting facts are essential. (See Domestic Relations Law, 232.) The party opposing divorce must have a similar command of the legal intricacies. For example, where adultery is charged, the defendant may need technical assistance to identify and offer the relevant defenses of insanity, condonation, recrimination, procurement, collusion or Statute of Limitations. (Domestic Relations Law, 171.)

[81] Also, if there is a dispute over support, pretrial investigative tools may be essential for discovering resources. Refusing counsel to an indigent party can, therefore, jeopardize that party's right to obtain support from a solvent spouse. And, if custody is disputed, the need for counsel is most apparent; children's futures will depend upon the outcome of the case, necessitating factual inquiries beyond the competence of the lay person. Frequently, expert witnesses must be examined. The Judge must often depend on counsel for the effective investigation, organization and presentation of the facts since the law's only guide is the vaguely worded standard of the "best interests of the child".

[82] As this court said in Matter of Ella B. (30 N.Y.2d 352, 356), "[a] parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right . . . to be relinquished . . . without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer." Although in Matter of Ella B. the constitutional right to appointed counsel was established only in a child neglect proceeding, the parent faces the loss of a child's society in a divorce proceeding and therefore, I think, has the same right to present her or his case effectively.

[83] Accordingly, I would hold that because of the importance of the rights involved, indigent matrimonial litigants are entitled, under the due process clauses of the Fourteenth Amendment to the Federal Constitution and section 6 of article I of the New York State Constitution, to be supplied with counsel whenever counsel is essential to the effective exercise of their right of access to the court.8 This right should attach whenever the court finds that indigent parties are incapable of preparing and presenting matrimonial actions pro se, including all divorce actions in which the dissolution is contested or in which property, support and custody issues cannot readily be resolved through mediation. While my view has obvious implications for other types of civil judicial proceedings, it would not need to be determined at the present time what other interests, if any, are sufficiently fundamental to require that counsel be provided when they are threatened. I would note only that the Supreme Court, which has been faced with this question in a filing fee case under the Federal Constitution, is in the process of distinguishing between those types of actions that involve "basic necessities" or "fundamental interests" and those that do not. (See United States v Kras, 409 U.S. 434, 445.)

III

[84] It does not necessarily follow from the existence of the right to be provided with counsel that proper implementation of that right requires directing a county to pay for counsel. All levels of government in New York are extremely pressed for funds and, while I believe they can constitutionally be required by courts to make expenditures that will effectuate the right of access to the courts, as in Deason (supra) I think it important that the judiciary exercise restraint where possible. Charging any level of government, where funds have not been appropriated by the Legislature, should be regarded as a relatively drastic step, to be taken only after exhausting other routes. Therefore, long before mandatory action, I would suggest some of these possible routes available to the courts:

[85] To begin with, this case involves relatively unusual circumstances, in which a Legal Aid Society had to withdraw from the case because of a conflict of interest. In the normal course of events, the Legal Aid Society would have provided representation for the appellants, as it does for many other divorce litigants each year. Indeed, the great majority of divorces for indigents are processed by the many legal aid and legal services institutions throughout the State, which are funded through a combination of Federal appropriations, State and local appropriations, and private charitable contributions. It is only in exceptional cases, involving a conflict between two clients, between a client and a witness, or, as in Tobak v Mojika (NYLJ, May 16, 1973, p 20, col 3), between a client and an overburdened organization's numerous other clients, that the usual legal assistance mechanisms are insufficient and other methods for providing representation must in my view be found.

[86] In such instances, the courts are not without numerous options. Some communities have two or more legal services organizations which have divided jurisdiction geographically for the representation of clients generally, but which would be willing to accept a client from outside of their usual territory at the request of a court. Courts in counties close to a law school may be able to call upon the services of a clinical teaching program, in which supervised students may represent clients pursuant to sections 478 and 484 of the Judiciary Law. Many law firms encourage their partners and associates to volunteer for pro bono cases; occasionally this practice is institutionalized, with resources pooled in an organization such as Community Law Offices in East Harlem, New York City. Lawyers are generally mindful of their very clear responsibilities under Ethical Consideration 2-25 of the Code of Professional Responsibility: " Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need." (Emphasis added.) Some Bar Associations maintain lists of lawyers willing to volunteer to assist indigents, and, where lists have been established, the courts can request that Bar Associations provide names of volunteers to the court.9

[87] Indeed, in our age, where the quality of life enjoyed by the individual is so greatly affected by increasing bigness -- of government, of business and of other powerful institutions -- there has been growing recognition by the forward-looking lawyer of the need to exert his professional skills to make legal processes more responsive to the needs and problems of all people, rich and poor alike.10 Nor does such positive reaction to public need invade lawyers' incomes. For we talk here of individuals who, because they fall within an appropriately fixed indigency level at which they cannot afford legal counsel from the private sector, are otherwise compelled to do without it while their rights oft die a-borning.

[88] On the other hand, where an insufficient number of volunteers step forward, the courts may nevertheless assign counsel, and, in view of the obligation of all lawyers under EC 2-25 to represent the poor, such assignment does not constitutionally require compensation. (United States v Dillon, 346 F2d 633, cert den 382 U.S. 978; People v Price, 262 NY 410; see Hurtado v United States, 410 U.S. 578.) However, the fact that a court can compel an attorney to provide services without compensation does not mean that it is ordinarily wise to do so. Except, as pointed out by amicus Bronx County Bar Association, for many of the not inconsiderable number of lawyers who are only marginally able to maintain their practices, the private Bar can be expected to meet its service obligations to a substantially greater extent than it is doing at the present time.

[89] Where, however, assignment must be made under CPLR 1102 to meet a constitutional right to counsel, the decision as to whether or not to order public payment should, I think, be on a case-by-case basis, taking into account the degree to which the Bar is currently overburdened,11 and such factors as the time that the action is likely to require and the likelihood that compensation of counsel may be obtained without invocation of the court's power to draw on the public treasury. For example, if an indigent wife is in litigation with a solvent husband, the court may be able to require the husband to pay counsel fees under section 237 of the Domestic Relations Law.12 And when the Supreme Court refers an issue of support to the Family Court for resolution, the Family Court has the statutory power to appoint the county attorney or corporation counsel as attorney for an indigent wife. (Family Ct. Act, 254.)

[90] Nevertheless, there may be cases where provision of counsel is constitutionally required, but legal aid societies cannot serve, no other type of service organization exists, individual volunteers have not stepped forward, Bar Associations have not offered their aid, assigning lawyers in the community without compensation would be unfairly burdensome, the husband is unlikely to pay for the indigent wife's counsel, and the case is not appropriate for the involvement of public counsel under the Family Court Act. It is my view that, in such instances, the court may have no choice but to charge the public purse, though, even then, it must give careful consideration to the question of whether the more appropriate body to bear the costs is the county or the State. Though I agree that it would be preferable that legislative provision be made in advance for such cases, and I have every confidence that the Legislature will do so as when it enacted article 18-B of the County Law, in response to public need for counsel in felony cases, I believe that the failure to make such appropriation cannot ultimately limit the obligation of the independent judicial branch of our government to provide meaningful access to our courts.13

[91] Now, in the two cases before us, since the lower court failed to determine whether they meet all of the conditions set forth above, I would decline to decide the hypothetical question as between county and State prematurely, but merely note that to select the path of the trial court in this case might inevitably lead to much greater charges being imposed on the counties having the greatest number of indigents, precisely the counties least able to bear the financial burdens. Under these circumstances, imposing the expense on the counties rather than on the State itself raises constitutional questions. (See Serrano v Priest, 5 Cal 3d 584.)

[92] It bears mention that, legislatively, there are a broad variety of options for creatively attacking the problem. For example, legal services programs might be expanded, funds to train paraprofessionals to aid assigned counsel provided, or counsel fees for matrimonial actions included in properly-supervised welfare budgets. The Legislature also has the power to reduce unnecessary expenditure in the divorce process. For example, it might authorize the creation of a division of the Supreme Court, analogous to the Small Claims Parts of our court system, in which simple, uncontested divorces involving no custody problems and only small amounts of money could be adjudicated with relaxed requirements of evidence and procedure. Or it might provide for such uncomplicated divorces to be resolved by an administrative agency rather than the courts. I express no views whatever on the desirability of any of these devices, nothing only that every expansion of the right to counsel, commencing, as already mentioned, with the right to assigned counsel in felony cases, has been followed by the co-operative efforts of the courts, the Bar and the Legislature to provide a combination of institutional mechanisms for making those rights a reality for the large numbers of citizens who must use the courts irrespective of ability to pay.

IV

[93] The Supreme Court did not make findings on the necessity of counsel here, nor did it make findings on the unavailability of methods for providing counsel that are less drastic than charging the county for an attorney's services. Therefore, while I agree with my fellow dissenters that the case should be remanded, I would add that the Supreme Court's reconsideration should be made in the light of the standards suggested in this opinion.

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[94] * The procedural status of the appeal is obscure. Originally, two separate motions were made in separate matrimonial actions. Thereafter, by some alchemy, orders and the appeal in the Appellate Division became consolidated and entitled as if in a special proceeding outside the actions. However faulty the procedures, the captions, or the practices adopted, the last order or judgment would be appealable either as a final order in a special proceeding or as an order affecting a third party, namely, the County of Tompkins, under the so-called third party principle (Cohen and Karger, Powers of the New York Court of Appeals, pp 181-182, 186-189).

[95] MINORITY OPINION FOOTNOTES

[96] *fn1 I would distinguish between the right of indigents to be represented by counsel in litigation seeking the dissolution of a marriage and other types of litigation. In the former, in the language of Boddie, there is a "state monopolization of the means for dissolving [the marriage] relationship" (401 U.S., at p 374). In other instances recourse to judicial machinery for dispute settlement, while perhaps useful and desirable, is not mandated by the State.

[97] *fn2 I agree on this point with the view of the majority, and thus disagree with the position expressed in the opinion at the Appellate Division "that an indigent party to a matrimonial action is entitled to assigned counsel." (45 A.D.2d 785.) Under CPLR 1102 the court may assign counsel. Such authority historically and by express provision rests in the discretion of the court, however; the exercise of such discretion in favor of the appointment of assigned counsel is not mandatory.

[98] *fn3 Though New York has not adopted the "no-fault" concept for the dissolution of marriage, the extent to which the proof sufficient for the granting of divorce has been eased becomes manifest from a study of the records in such very recent cases as Hessen v Hessen (33 N.Y.2d 406), Johnson v Johnson (36 N.Y.2d 667) and Becker v Becker (36 N.Y.2d 787).

[99] *fn4 While there is, of course, no precise correlation between a person's level of affluence and his level of education, on a statistical basis low income persons are likely to be those least prepared by their own educational background to litigate actions pro se.

[100] *fn5 Other jurisdictions have also determined that indigents have a right to be provided with counsel in certain civil cases. (See, e.g., United States v Sun Kung Kang, 468 F2d 1368 [civil contempt proceeding brought to compel witness to answer Grand Jury questions]; Cleaver v Wilcox, 2 CCH Pov L Rep, par 15,381 [parents right to counsel in dependency hearing]; State ex rel. Lemaster v Oakley, 2 CCH Pov L Rep, par 18,727 [State custody hearing]; Nebraska v Caha, 190 Neb 347 [neglect; counsel to be provided at public expense]; People v Brown 49 Mich App 358 [neglect]; Matter of R.I., 455 Pa 29; Oregon v Collman, 9 Ore App 476 [commitment proceedings].)

[101] *fn6 Hand, Learned, "Thou Shalt Not Ration Justice", address before the Legal Aid Society of New York (9 Brief Case, No. 4, pp 3, 5 [1951]).

[102] *fn7 Of course, some individuals will not be able to manage even the least complex type of matrimonial case without professional assistance. For them, in my view, denial of counsel will prevent effective access to the court, and will, therefore, infringe their right to due process. Therefore, a court asked to supply counsel even in an uncontested, relatively simple divorce action should take into account whether the party requesting help "appears to be capable of speaking effectively for himself". (See Gagnon v Scarpelli, 411 U.S. 778, 791.) If a party needs help, I think some form of effective assistance must be provided.

[103] *fn8 In his now classic Note, The Indigent's Right to Counsel in Civil Cases (76 Yale LJ 545, 555), Stanford University Law Professor Thomas Grey convincingly demonstrates that the right cannot depend on whether the indigent is plaintiff or defendant; if it did, "It will be in the interest of each to try and goad the other into first filing divorce papers; the winner in this war of nerves will emerge with a lawyer, while the loser gets none".

[104] *fn9 The record indicates that a local Bar Association in this case resolved not to honor the court's request that it provide a list of attorneys for appointment in divorce actions, but I would think that the association would reconsider in light of the ethical obligations expressed in the Code of Professional Responsibility.

[105] *fn10 Christensen (Lawyers for People of Moderate Means, Some Problems of Availability of Legal Services), American Bar Foundation, 295 (1970).

[106] *fn11 The suggestion is not, of course, that a court must make a determination with respect to this particular factor on a case-by-case basis. It would suffice for courts to make a formal or informal annual or biannual survey of the willingness and ability of the local Bar to assist indigents; in some areas, this survey may best be performed by an administrative Judge for the Judges of his court.

[107] *fn12 The exclusion of fee-generating matters, such as most tort litigation and other essentially contingent-fee cases, from the application of poverty law programs, like those Federally funded under the National Legal Services Corporation (predecessor of the OEO National Legal Services Program), have proved to be successful and satisfactory in lightening potential financial burdens.

[108] *fn13 (Cf. Leahey v Farrell, 362 Pa 52, 55; Carlson v State ex rel. Stodola, 247 Ind 631; Wayne Circuit Judges v Wayne County, 15 Mich App 713, affd in part and revd in part 383 Mich 10, set aside on rehearing and Ct of App judgment affd 386 Mich 1, cert den 405 U.S. 923; Commonwealth ex rel. Carroll v Tate, 442 Pa 45, cert den 402 U.S. 974; 20 Am Jur 2d, Courts, 79, n 9.) In Noble County Council v State ex

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[Editor's note: Illustrations from the original opinion, if any, are available in the print version]

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