Wednesday, February 1, 2012

amend Illinois Constitution to provide right to counsel for defendants in evictions & foreclosures

The following is a proposal to amend the Illinois Constitution to guarantee defendants in Illinois have a right to counsel in cases of eviction and foreclosure on their primary residences. This would be analogous in most ways to how criminal defendants have a right to a public defender if they lack the resources to hire an attorney.

Why is this necessary?

When people are defendants in evictions and foreclosures, they have few resources. Lenders and their law firms have engaged in fraud.

Losing a place to live is a big deal. It affects one's health and physical safety.

What does the Illinois Constitution already say?

Article 1, Section 2:
No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.
Article 1, Section 6:
The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. 
 (I added the italics.)

How does one determine if a seizure is reasonable? One has courts oversee the process. OK, but...

Courts provide minimal protection to people who lack counsel. Rich people don't rely on the law and the probity of judges to protect their interests. Rich people have lawyers go to court.

It seems absolutely consistent with language that already exists in the Illinois Constitution to require the state (most likely counties) to provide defense attorneys in cases of eviction and foreclosure the way public defenders are provided to defendants in criminal trials now.

However, the Illinois judiciary has not yet decided to interpret the Illinois Constitution in this manner. So, I suggest adding an amendment that makes the right to counsel for defendants in evictions and foreclosures explicit.