Smiley, In re

• Decision Date: 01 May 1975
• Citation: 36 N.Y.2d 433,369 N.Y.S.2d 87,330 N.E.2d 53
• Parties: , 330 N.E.2d 53 In the Matter of Rhonda SMILEY et al., Appellants
• Court: New York Court of Appeals Court of Appeals

Page 87

369 N.Y.S.2d 87

36 N.Y.2d 433, 330 N.E.2d 53

In the Matter of Rhonda SMILEY et al., Appellants.

Court of Appeals of New York

May 1, 1975.

Herbert L. Warren and John J. Capowski, Ithaca, for appellants.

Paul N. Tavelli, Asst. County Atty., for respondent.

Jonn C. Gray, Jr., and Marjory D. Fields, Brooklyn, for the Brooklyn Legal Services Corp. B, amicus curiae.

Adrian P. Burke, Corp. Counsel, New York City (L. Kevin Sheridan and Bernard Burstein, New York City, of counsel), amicus curiae.

Kalman Finkel, John E. Kirklin, and Michael D. Hampden, New York City, for The Legal Aid Society of New York City, amicus curiae.

Martin B. Klein, New York City, for the Bronx County Bar Ass'n, amicus curiae.

Rene H. Reixach, Jr., Rochester, for the Monroe County Legal Assistance Corp., amicus curiae.

Richard D. Rosenbloom, Rochester, for the Monroe County Bar Ass'n, amicus curiae.

BREITEL, Chief Judge.

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.

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. ^*

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, 83 S.Ct. 792, 9 L.Ed.2d 799; People v. Witenski, 15 N.Y.2d 392, 397, 259 N.Y.S.2d 413, 416, 207 N.E.2d 358, 360). 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, 92 S.Ct. 2006, 32 L.Ed.2d 530; Mempa v. Rhay, 389 U.S. 128, 134, 136--137, 88 S.Ct. 254, 19 L.Ed.2d 336; In re Gault, 387 U.S. 1, 34--36, 87 S.Ct. 1428, 18 L.Ed.2d 527; Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, Supr People ex rel. Silbert v. Cohen, 29 N.Y.2d 12, 14, 323 N.Y.S.2d 422, 423, 271 N.E.2d 908, 909; People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 383, 318 N.Y.S.2d 449, 454, 267 N.E.2d 238, 242; see, also, Matter of Ella B., 30 N.Y.2d 352, 356--357, 334 N.Y.S.2d 133, 135--136, 285 N.E.2d 288, 289--290, involving custody of children).

No similar constitutional or statutory provision applies to private litigation.

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, 84 N.Y.S. 97, 98--99, affd. on prevailing opn. below, 177 N.Y. 587, 70 N.E. 1105). 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, Judiciary Law Appendix (Canon 2, EC 2--25).

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, Consol.Laws, c. 11, art. 18--B; see, also, Judiciary Law, Consol. Laws, c. 30, § 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.Proc., § 308).

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).

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 N.Y. 190, 195--196, 78 N.E.2d 467, 469--470; Jacox v. Jacox, 43 A.D.2d 716, 717, 350 N.Y.S.2d 435, 436). 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.

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, 352 N.Y.S.2d 110, 114). 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).

Petitioners, on the basis of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, 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.

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 N.Y.Const., art. XVI, § 1; U.S.Const., art. I, § 8, cl. 1).

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, 343 N.Y.S.2d 321, 296 N.E.2d 229, 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.

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 L.J. 1055, 1066--1067). Access to the courts was the only problem to which the Boddie and Deason cases were addressed.

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.

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.

None of this is to say that the need and burden of representing indigent matrimonial suitors will not...