Right to counsel for defendants in military

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Litigation, Housing - General

In 444 W. 54th Street Tenants Association v. Costello, 523 N.Y.S.2d 374 (Civ. Ct. 1987), the court considered whether it should appoint counsel pursuant to the discretionary appointment provision of N.Y. Mil. Law § 303 in an eviction case, and in making this determination launched into a constitutional analysis, discussing the court's inherent powers, the New York high court's due process decisions in various cases, the cutbacks to legal services that made the court reluctant to burden such agencies with new appointments (as part of a discussion of whether it could order payment for any attorney it appointed), and the Lassiter v. Department of Social Services, 452 U.S. 18 (1981) balancing test. The court suggested that while the New York Court of Appeals in In re Smiley, 330 N.E.2d 53 (N.Y. 1975) had said that "counsel is Constitutionally required only when the state is proceeding against a litigant who has at risk liberty or other 'grievous forfeiture'", such a stance had been "made uncertain by the 1981 United States Supreme Court determination in Lassiter … Under the Lassiter test, … even if liberty is not at stake, there is only a rebuttable presumption that counsel is not mandatory."  The Costello court's reliance on Lassiter suggests that it was relying on an interpretation of the Fourteenth Amendment. The Costello court also pointed out:


Certainly, even in the Smiley decision, then Chief Judge Breitel recognized that one's right to a home involves a vital private interest. Perhaps in keen foresight of the many homeless indigents who dwell on the streets of our nation, he said that there are various "kinds of private litigation which may drastically affect indigent litigants.... 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." 


The Costello court concluded by finding appointment both an appropriate exercise of discretion as well as a constitutional right in the instant case (and possibly all cases involving evictions of military personnel):


[I]t is clear that this Court chooses to exercise whatever discretion it has in directing appointment of an attorney for the litigant in military service. Indeed, it is held that such appointment is mandated by public policy considerations and is also Constitutionally required due to the potential grievous forfeiture of a vital private interest of one in the military service of our country—the rebuttable L***iter presumption . . . has been rebutted under the facts of this case . . . thereby mandating appointment of counsel.


It also concluded that "Although the Smiley majority indicated … that courts lacked authority to direct expenditure for ***igned civil counsel from public funds (see also In Re Goresen v. Gallagher, supra ), earlier Court of Appeals decisions held that the power to incur legal expenses necessarily implies the power to direct payment for those expenses, especially in fulfilling a Constitutional mandate."

Appointment of Counsel: categorical Qualified: yes