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.
***** BEGIN FOOTNOTE HERE *****
[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
***** END FOOTNOTEHERE *****
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