Menin v. Menin

• Decision Date: 05 September 1974
• Citation: 359 N.Y.S.2d 721,79 Misc.2d 285
• Parties: Rhoda MENIN, Plaintiff, v. William MENIN, Defendant. Application of Susan SCHMIDT For an Order Pursuant to CPLR 1102 Granting Poor Person Relief and Assigning an Attorney. Application of Francine HELTON, For an Order Pursuant to CPLR 1102 Granting Poor Person Relief and Assigning an Attorney.
• Court: New York Supreme Court

Page 721

359 N.Y.S.2d 721

79 Misc.2d 285

Rhoda MENIN, Plaintiff, v. William MENIN, Defendant Application of Susan SCHMIDT For an Order Pursuant to CPLR 1102 Granting Poor Person Relief and Assigning an Attorney Application of Francine HELTON, For an Order Pursuant to CPLR 1102 Granting Poor Person Relief and Assigning an Attorney.

Supreme Court, Westchester County.

Sept. 5, 1974.

Robert Charles Ollman, New Rochelle, for plaintiff Rhoda menin.

William Menin, pro se.

Susan Schmidt, pro se.

Francine Helton, pro se.

Gerald Harris, County Atty., Westchester County, White Plains.

DECISION

JOSEPH F. GAGLIARDI, Justice.

Two potential plaintiffs in proposed divorce actions and a defendant in a divorce action have moved pro se for poor person relief and assignment of counsel to serve without fee (CPLR, Art. 11). For purposes of these motions, the Court shall assume, based upon uncontroverted evidence, that movants are indigents as a matter of law (Adkins v. Dupont Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43). Consequently, leave to proceed as poor persons is granted.

By statute, assignment of counsel is a matter within the discretion of the Court (CPLR 1102(a); Hotel Martha Washington v. Swinick, 66 Misc.2d 833, 322 N.Y.S.2d 139 (App.Term (1st Dept.)). Movants contend that they have a constitutional right to counsel and rely upon Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780 An overwhelming majority of jurisdictions that have considered the issue of right to counsel in civil cases have held that no constitutional right attached thereto (Securities & Exchange Com'n v. Alan F. Hughes, Inc., 481 F.2d 401 (2nd Cir.), cert. den. 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549; Peterson v. Nadler, 452 F.2d 754 (8th Cir.); In re Robinson, 8 Cal.App.3d 783, 87 Cal.Rptr. 678, cert. den. sub nom. Kaufman v. Carter, 402 U.S. 954, 964, 91 S.Ct. 1624, 29 L.Ed.2d 128; Archuleta v. Grand Lodge of Internat'lAss'n of M. & A.W., 262 Cal.App.2d 202, 68 Cal.Rptr. 694; Powell v. State, 19 Ariz.App. 377, 507 P.2d 989; Petition of Waite, 143 Mont. 321, 389 P.2d 407; cf. Dade County v. McCrary, 260 So.2d 543 (Fla.App.); Caron v. Betit, 131 Vt. 53, 300 A.2d 618; Peace v. Peace, 288 N.E.2d 602 (Mass.)).

28 L.Ed.2d 113, which was decided in 1971. The Court in Boddie held that it was a violation of due process to deny access to the courts to poor persons who desired judicial dissolution of their marriage. Thus, the court concluded that certain filing fees and other court costs must be waived to enable indigent litigants to have their day in court. Boddie is an access case but is not the Sine qua non of requiring assistance of counsel in all civil litigation (cf. Gregonis v. P. & R. Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223; Note, 26 Vand.L.Rev. 25 (1973); Note, 82 Yale L.J. 1055 (1973); Goodpaster, 'The Integration of Equal Protection, Due Process Standards, and Indigent's Right of Free Access to Courts,' 56 Iowa L.Rev. 223, 231--32 (1970); Comment, 55 Mich.L.Rev. 413, 420--21 (1957); also see Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572, rehearing den. 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315; United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626). In pre-Boddie cases, the Supreme Court had refused to announce a right to counsel in civil matters (Hackin v. Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347; Sandoval v. Rattikin, 385 U.S 901, 87 S.Ct. 199, 17 L.Ed.2d 132; see Note, 76 Yale L.J. 545 (1967); Comment, 66 Col.L.Rev. 1322 (1966)). In two post-Boddie matters involving denial of assignment of counsel, the Supreme Court denied certiorari (Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 91 S.Ct. 1624, 29 L.Ed.2d 124; Kaufman v. Carter, 402 U.S. 964, 91 S.Ct. 1624, 29 L.Ed.2d 128). In 1973 our Court of Appeals held that an indigent parent in a child neglect proceeding, was constitutionally entitled to counsel since the parent faced possible criminal charges and it was unfair for the State to be an adversary against an unrepresented party (Matter of Ella B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288). These factors are not present at bar and the reasoning in Matter of Ella B. is, therefore, not applicable here.

Boddie, supra, instructs us that matrimonial matters are closely allied with state action concepts under the Due Process Clause. A form of state action exists in divorce proceedings brought in this state Movants present an alternative argument that if they are not constitutionally entitled to counsel, the Courts will assign counsel in matrimonials as a matter of policy. The Legal Aid Society of Westchester County has refused to represent movants on the ground that it is understaffed and overworked. Consequently, our inquiry narrows down to whether the private bar may be assigned (Cerami v. Cerami, 44 A.D.2d 890, 355 N.Y.S.2d 861; Vanderpool v. Vanderpool, 40 A.D.2d 1030, 339 N.Y.S.2d 657).

by virtue of our constitutional provision requiring 'due judicial proceedings' prior to the grant of a divorce. (N.Y.Const. Art. I, § 9, subd. 1; see Domestic Relations Law §§ 144, 211; CPLR 3211(d), 3215(b); General Obligations Law § 5--311). As noted earlier, Boddie is an access case lacking equal protection implications and it is concluded that since all indigent civil litigants are accorded access to the courts in this State, there is no denial of equal protection in refusing to assign court-appointed counsel (cf. Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341). Furthermore, the fact that a judge's order is ultimately required to sever the matrimonial relationship is not such state action as necessitates appointment of counsel under the Due Process Clause (cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627; Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 347 N.Y.S.2d 170, 300 N.E.2d 710; Jeffreys v. Jeffreys, 58 Misc.2d 1045, 296 N.Y.S.2d 74, revd. other grounds, 38 A.D.2d 431, 330 N.Y.S.2d 550; Note, 74 Col.L.Rev. 656, 659--60, 677--80, 685--86 (1974)). Accordingly, the Court holds that the Due Process Clause does not require appointment of counsel in these proposed and actual divorce proceedings (see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513; cf. Matter of Ella B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288).

There is a line of authority which supports movants' view that uncompensated counsel will be assigned to indigent matrimonial litigants in the absence of the availability of a federally funded organization to provide representation (Smiley v. Smiley, 45 A.D.2d 785, 356 N.Y.S.2d 733; Jacox v. Jacox, 43 A.D.2d 716, 350 N.Y.S.2d 435; Matter of Bartlett v. Kitchin, 76 Misc.2d 1087, 352 N.Y.S.2d 110; see Emerson v. Emerson, 33 A.D.2d 1022, 308 N.Y.S.2d 69; Brounsky v. Brounsky, 33 A.D.2d 1028, 308 N.Y.S.2d 72). However, none of the cited cases addressed itself to the Constitutional rights of assigned counsel to be paid for their endeavors.

Compensation for assigned counsel is statutorily provided for in criminal, habeas corpus and civil retention mattes (Judiciary Law § 35; County Law, Art. 18--B), and in specified family court matters (Family Court Act, §§ 245, 248, 621, 831, 1043). In the absence of a Under the Fifth Amendment to the Federal Constitution, the Due Process Clause of the Fourteenth Amendment and Article 1, section 6 of the New York State Constitution, it is provided that 'no person shall be deprived of life, liberty or property without due process of law'. The Thirteenth Amendment to the Federal Constitution prohibits involuntary servitude and while no direct provision in point exists in this State's Constitution (9 N.Y.Jur., Constitutional Law, § 234) Article 1, section 7(a) thereof and the Fifth Amendment to the Federal Constitution forbids the taking of private property for public use without just compensation. The determination in Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508, seemingly precludes further inquiry regarding involuntary servitude and the balance of our discussion will relate to the due process rights of assigned counsel.

statute, the Court lacks power to award attorney's fees to assigned counsel (Jacox v. Jacox, Supra). ¹

Nowhere in the right to counsel cases does the Supreme Court state that counsel must be assigned to serve without compensation (Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Argesinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718; In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158). Indeed, in the very recent decision in Gagnon v. Scarpelli, Supra, wherein the court considered the right to counsel in parole and revocation situations, it was noted that one factor to be emphasized in requiring assistance of Appointed counsel is 'the financial cost to the State' (411 U.S. at 788, 93 S.Ct. at 1762). Implicit in the above statement is the requirement of payment for assigned legal representation and in Matter of Ella B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288, discussed Supra, the Court of Appeals referred to 'court-appointed and compensated counsel' (at p. 357, 334 N.Y.S.2d at 136, 285 N.E.2d at 290 (quoting from Cleaver v. Wilcox, 40 U.S. Law Week 2659)).

The question regarding assigned counsel's right to compensation has been raised in virtually every jurisdiction in this country (Ann. 21 A.L.R.3d 819 'Representing Indigent-Compensation'; 7 Am.Jur.2d. Attorneys at Law, § 207; 7 C.J.S. Attorney and Client § 172; 2 R.C.L., Attorneys at Law, §§ 28, 117; Note, 44 L.R.A. (N.S.) 1195; Note, 36 L.R.A. (N.S.) 379; 2...