A keepsake: The Due Process Clause in civil litigation-People v. Gawlak

By Patrick M. Kinnally & Cindy G. Buys

March 2019

In the civil litigation fray, sometimes we get lost in motions, discovery, a new evidence code, briefing schedules and memoranda of law. Fundamental concepts such as the right to counsel under the Due Process Clause right to have a private attorney assist in civil litigation get overlooked in the maze of special interrogatories, requests for admissions, or perhaps a new jury instruction on implicit bias. Let's stop for a cup of coffee. 1

More than eight decades past, nine African American men, 20-years-old or younger were accused of raping two white woman while hoboing on a train in the rural south. They were charged in Alabama and convicted in three trials held within days of arrest. They claimed their lawyers, privately retained were not afforded time to prepare for their criminal prosecution hearing. Indeed, they were not. Our Supreme Court so held
in Powell v. Alabama.2

The issue in Powel/was not the 6th Amendment right to counsel in a non-capital felony case. That guarantee would not be realized until Gideon v. Wainwright, 372 U.S. 335 (1963), thirty years later. In Powell the court noted:

It never has been doubted by this court, or many other, as far as we know, that notice and hearing are preliminary steps to the passing of an enforceable judgment and that they have, together with a legally competent tribunal*** constitute the basic elements of the constitutional requirement of due process of law. 

What, then, does a hearing include? Historically and in practice, in our country, at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right.

The court went on to opine that such a right would be of little value where a lay person did not have counsel to evaluate the propriety of an indictment, the character of the evidence, or the ability to prepare a defense even if he had a perfect one. The aid of counsel applies to both criminal and civil cases as a constitutional guarantee to the due process of law.

The Illinois Code of Criminal Procedure provides that under certain circumstances a person who has been
criminally convicted can seek DNA testing to challenge his conviction. This is a civil proceeding.3

Sylwester Gawlak was accused of felony sex crimes, convicted and sentenced to the penitentiary.
Thereafter, he filed post conviction petitions challenging his convictions.4 Also, he filed a DNA petition.

In the DNA petition, a lawyer accompanied Gawlak to a hearing and asked for leave to file a limited scope appearance under Supreme Court Rule 13 as to the DNA petition, an Illinois Supreme Court Civil rule. The lawyer did not file the appearance. The state objected. The trial court denied the lawyer's request. The trial court stated:

You know, if you want to assist [defendant], like I said, you're welcome to be here eve,y single day. If he has questions about subpoenas, that's up to you if you want to answer them or not. If you want to serve as some advisory-in an advisory capacity without an appearance, you can certainly do that. That's really none of my business. When this case comes up, only one [person] is going to be doing the talking, if it's not you, Mr. Brodsky, on every issue on the post-conviction [petition], then it will be [defendant] with the exception of course to the [section] 2-1401, which I maybe, just maybe mistakenly allowed another attorney to come in on. That's where we're at. (Gawlak sl.op.pg.5)

On appeal, the appellate court reversed citing Powe/1.5 The state appealed.

Justice Karmeier, in a thorough review of Powell, reversed the appellate court and remanded the case to the
trial court.6 He acknowledged Powell's due process right for civil defendants right to retain privately
retained counsel.7 The court found the DNA petition to be civil in nature and that a limited scope appearance. Illinois Supreme Court Rule 13(c)(6) requires a lawyer to comply with that rule as to such representation; namely, filing an appearance as the rule designates. Because the lawyer did not comply with that rule, a Powel/violation was not triggered.

Notwithstanding, the supreme court held the trial court and the state made inaccurate statements when discussing the nature of Gawlak's DNA petition. They conflated it with his post conviction petition, which was error. In the exercise of its supervisory authority the court determined the trial court should consider the DNA petition either prose or with the attorney if he complied with the limited scope appearance rule.

Powel/is a cue to all of us whom practice civil law of the significance of any defendant's right to prepare a defense by retained counsel a civil action. The Powe/fright is constitutional, but not without limitation. It makes clear that defendants in civil cases have the right to due process in their representation. Gawlak recites that precept. Also, Gawlak tells us that Powell is not an absolute. It requires compliance with Illinois Supreme Courrs rules-in this case, appearing in a limited scope-to ensure representation. Our Supreme Court rules are not mere suggestions. They are laws to which we as advocates must adhere. Gawlak is a memento to all litigants of Powell's efficacy and a concomitant right to the due process of law in civil litigation. Let's keep it in mind. 

1, People v. Gawlak, 2019 IL 123182.
2. Powell v. Alabama, 287 U.S. 45 (1932); see also, Norris v. Alabama, 294 U.S. 587(1935); James Goodman, Stories of Scottsboro (1995).
3. 725 ILCS 51116-3.
4. 725 ILCS 5/122-1; 735 ILCS 5/2-1401.
5. 2017 ILApp(3d) 150861.
⯑. Gawlak, supra note 1.
7. See Guajardo-Palma v. Martinson, 622 F. 3d 801 (7th Cir. 2010).