Court of Appeals to hear claim of right to counsel in child custody matter

In what could be a groundbreaking decision with national repercussions, the state's high court may rule this year whether Maryland residents have a constitutional right to counsel in civil cases.

A Caroline County mother of four, who had to represent herself in a custody fight, now has a dream team of lawyers, including (clockwise from lower left): Stephen H. Sachs; Catherine Woolley and John Nethercut of the Public Justice Center; Deborah Thompson Eisenberg of Brown Goldstein & Levy; and Debra Gardner and Wendy N. Hess of the PJC.

A grand alliance of legal services providers and other advocacy groups, spearheaded by former Attorney General Stephen H. Sachs, have pooled resources and will argue a test case before the Court of Appeals in the fall - the first of its kind in the state's history and one of few efforts nationwide.

The campaign also has the full support of the Maryland State Bar Association, which this week filed an amicus brief with the court, and the University of Baltimore's Family Law Clinic.

Sachs and his colleagues have advocated the concept of a "civil Gideon" - named after the landmark 1963 Gideon v. Wainwright Supreme Court ruling which established the right to representation in criminal cases - for several years, but the stakes got higher in April when the top court agreed to hear Deborah Frase et al v. Cynthia Barnhart et al.

At issue is a principle that dates back to the Magna Carta, namely equal access to the law. According to experts, including Justice Earl Johnson Jr. of the California Court of Appeal, the United States is the only major nation in the West that doesn't provide a right to counsel in civil cases.

There's no sign that that will change on a national basis, either. The Supreme Court's 1981 decision in Lassiter v. Dept. of Social Services made it clear that, as far as the federal Constitution is concerned, there is no automatic right to counsel in civil cases.

But Maryland's constitution is a different matter, say Sachs and company.

"It's a cutting-edge case of national significance," he said earlier this week. "There is no other decision we are aware of which held, as a matter of constitutional law, that there's a right to counsel."

On the surface, Frase v. Barnhart is just a child custody case, albeit an interesting one. But Sachs and his key partners - Deborah Thompson Eisenberg of Brown, Goldstein & Levy, and Debra Gardner from the Public Justice Center - saw it as the ideal platform to argue their position.

Deborah Frase, a Caroline County mother of four, sought help but was forced to represent herself when she appeared in court to argue that she should retain custody of one of her children, 3-year-old Brett Michael.

"She really crystallized the problem, which is that legal services in this state are woefully under-funded," said Eisenberg.

Frase didn't actually lose custody of Brett Michael to Curtis and Cynthia Barnhart, who had looked after him while she was serving a brief prison sentence for drug possession, but the master - who, Frase later learned, had represented her mother in an uncontested custody proceeding over Frase's oldest son - imposed conditions she is appealing.

According to Frase's lawyers and their amici, the case highlights why someone like her needs counsel.

The huge interest in the case has left one man, Timothy A. Bradford, somewhat bemused.

He is the Barnharts' lawyer, and his six-page brief is in stark contrast to the paperwork compiled by his opposition.

"I wasn't expecting it to be a big case," Bradford said. "I'm basically a country attorney here in Caroline County."

On the right-to-counsel issue, his brief points to the Supreme Court's decision in Lassiter and posits that Frase is living proof people can represent themselves effectively.

"The [Barnharts] asked the court for full custody of Ms. Frase's son but Ms. Frase, representing herself, was able to defend the complaint and able to keep custody of her son," he wrote in his brief.

In something of a twist, Bradford revealed that the Barnharts couldn't actually afford to pay a lawyer to appeal the case.

He is representing them pro bono.

Back to the future

Sachs' key argument rests on an obscure 15th century English law which called for litigants to be assigned counsel if they could prove they could not afford to pay for it themselves.

He believes the law applies in Maryland thanks to one of the ironies of the American Revolution: No sooner had the colonial upstarts thrown of the imperial yolk than they set about asserting their rights as "Englishmen."

Thus the Maryland Declaration of Rights asserts that all English laws which existed up to July 4, 1776, apply to state residents.

Furthermore, the brief states that the law was one of those that William Kilty, the Chancellor of Maryland in the early 19th century, ruled was applicable to Maryland when he completed a study for the General Assembly.

The 1494 statute (11 Hen. 7, c-12 for those with an extensive library) was enacted during the reign of King Henry VII, the first Tudor monarch, who is best known for deposing his tyrannical, hunchbacked predecessor Richard III.

The intention was to reform the English legal system which, at that time, largely revolved around litigants appealing to courts using complicated writs which were antiquated even by 15th century standards.

Although courts were open to all, as prescribed by the Magna Carta, the reality was that only those who had the assistance of counsel could evade the obstacles put before them.

The statute called for litigants to be assigned counsel if they could prove they were could not afford to pay for it themselves.

In practice, the person involved would have to swear that he was worth less than five pounds.

As Frase's brief notes, the statute was in effect for almost four centuries in England before being updated by modern legal aid legislation.

What is also potentially of great importance is the fact that Sachs and his team say in their brief that they have found several instances from early Maryland history where the statute was applied this side of the Atlantic.

"It's essential to show it was used," Sachs observed.

The crystal ball

Although the oral argument is still months away, imaginations are running wild as to what the court will decide (if it even reaches the issue), and how, in practical terms, a right to counsel in civil cases could be introduced statewide.

Robert J. Rhudy, executive director of the Maryland Legal Services Corp., which administers funding to legal services organizations, believes a workable system could cost as little as $12 million to $15 million a year, what he believes is a modest sum compared with the $65 million that funds the Office of the Public Defender.

He has obviously thought about this a great deal, and seems confidant that a combination of increased funding for the Legal Aid Bureau, combined with a revival of a "judicare" program, in which private practice lawyers take on cases and are paid by the state, is the ideal way forward.

Maryland's old judicare program ran throughout the 1980s, according to Rhudy, but was axed during the budget crunch in the early 1990s.

But, despite their enthusiasm, Rhudy and others all pointed out that it's up to the court to rule how broadly the right would apply, if at all.

It's possible that the court will simply say there is a right to counsel in contested child custody cases like Frase's, which would be welcomed by Sachs, but would not be the end of the campaign.

Such a decision would result in other cases aimed at broadening the law being filed in the future.

Whatever happens, Rhudy claimed that interested parties in several other states, including Florida, Texas and Washington state, will be watching closely and could well follow suit if Sachs triumphs.

If the court does rule in favor of Frase, there's also the issue of how the state would pay for a right to counsel, which would be another challenge altogether, particularly in the current economic climate in Annapolis.

(A spokesman from Gov. Robert L. Ehrlich Jr.'s office had not returned a call seeking comment by press time.)

For Wilhelm H. Joseph, Jr., executive director of the Legal Aid Bureau, the next few months will be tense as the case could lead to a dramatic expansion in the services his organization offers.

It could also be the end to what he believes is centuries of injustice.

"The failure to invest in civil justice is directly related to the increase in criminal disorder," he said. "The more people feel there is injustice the more it becomes part of their psyche."