There is a scene in the movie Marley & Me where the main character, John, takes his dog, Marley, to a beach. The beach had a strict leash policy, prohibiting owners from letting their dogs run free on the sand and in the ocean. Earlier in the movie, despite Marley’s less-subtle attempt to use puppy eyes to guilt John, John resists taking Marley off the leash, fearing the glares he might get from his fellow beachgoers if Marley misbehaved. However, John, now years older and much wiser (or so the audience is led to believe), lets Marley off his leash. For about a minute, the audience sees shots of Marley running on the beach and splashing in the water, quashing any fears John may have had. But naturally, only seconds later, Marley runs in the shallow water and begins to relieve himself, to the disgust of everyone else on the shore.

Most lakefront property owners in Indiana know a “Marley” of their own. Although many lakefront property owners are happy to allow neighbors to pass along their shoreline and enjoy some of Indiana’s greatest natural resources, when dogs leave “gifts” on their shore or neighbors overstay their welcome, these property owners begin to contemplate what rights they have to exclude access to their shore. While some use scowls and verbal pleas to resolve these matters, others are forced to pursue litigation. That was the case in Gunderson v. State, a case where the parties were awash in a dispute over the public’s right to Lake Michigan’s shoreline.

The United States is a law-bound society that depends on adjudication to address many important questions. We thrust the poorest members of our society into the legal system to decide some of their most basic rights – can they continue to live where they’ve been living, can they keep receiving disability benefits or are they now able to work, how much will be taken from their meager paycheck to support a child or repay the payday loan they had to get to pay rent? Because of their economic status, they cannot pay for lawyers to help them through that process. As stated in the Rules of Professional Conduct, lawyers should volunteer their time to help in these cases, but pro bono alone will not fill the gap . . .

The legislature, understanding that law alone is not always enough, left room for community members to come alongside members who are the target of discrimination and support them in demanding equality in housing. When a housing provider discriminates against a protected class, the community can directly voice its support for the targeted community member, and the community can voice its complaint against the housing provider to the Indiana Civil Rights Commission on the basis that the entire community is injured when diversity is divested. Together, community members can stand against discrimination in housing and turn a legal requirement into to the touchstone of Indiana’s housing culture by using the Indiana Fair Housing Act to demand equality in housing and reaffirm that “[i]njustice anywhere is a threat to justice everywhere.”

In Gideon v. Wainwright, the Supreme Court held that all criminal defendants facing serious criminal charges are entitled to the assistance of counsel, regardless of whether they can afford an attorney. In the years since Gideon, however, the provision of public defense to those who cannot afford counsel has fallen far short of the ideal expressed in Gideon that “every defendant stands equal before the law.” The failure of public defense systems to provide adequate representation to indigent defendants is often caused by severe underfunding and has resulted in the chronic appointment of “incompetent or inexperienced” counsel; delays in the appointment of counsel and discontinuity of attorney representation; a lack of training and oversight for counsel representing indigent defendants; excessive public defender caseloads and understaffing of public defender offices; inadequate or nonexistent expert and investigative resources for defense counsel; and a lack of meaningful attorney-client contact.

One response to these failings—as is often the case when constitutional violations are afoot—has been to challenge them in court. The focus of this short Article is on how the courts can address and have addressed the failings of underfunded and structurally flawed indigent defense systems. More specifically, it explores lawsuits that identify systemic failures—such as underfunding, excessive caseloads, and inadequate training and oversight—and seeks system-wide remedies capable of transforming the provision of defense services.

Roger Owen DeBruler died on February 13, 2017, at the age of eighty-two. He was the longest serving justice on the Indiana Supreme Court during the twentieth century – the third longest serving justice ever – and his influence on Indiana jurisprudence is pervasive. I had the great good fortune to serve on the Court during the final three years of his tenure and am honored that the Indiana Law Review has asked me to prepare a tribute to him for publication.