"Access to Justice":

A noble principle in beggar’s rags

1999 Washington State

Access to Justice Conference

June 25-27, 1999

By the Hon. Richard B. Sanders

Our conference is entitled "Access to Justice"; however, ultimately what this conference is about is finding enough money someplace, somehow, to pay lawyers to represent poor people in civil cases. I submit this is a noble purpose, but it is dressed in beggar’s rags.

Indeed, to our conferees the need for civil representation seems so obvious that it overwhelms discussion of all the whys and wherefores. Like Mount Everest, the need must be satisfied because "it is there." And, so goes the argument, anything which satisfies it is preferable to that which does not.

But I am here to offer a separate concurring opinion: Necessity doesn’t make for legal rights, nor justice, but principles do. Moreover, if we are to financially support a system whereby justice may be accessed, that financial support must be derived in a just way as well.

Many individuals are disinclined to advocate for the right of civil representation at public expense because they see it as just one more welfare program which transfers wealth from the haves to the have-nots. After all, if we are unwilling to accept the responsibility to buy someone else’s groceries, why should we pay for their divorce? I think there may be a good reason why, but not a reason which is adequately articulated.

Judge Johnson suggests in his writings that the right to counsel for civil litigants is deeply rooted in the fundamental nature of our free society. To paraphrase John Locke, such a society secures lives, liberty, and property of individuals in a system wherein disputes are peaceably resolved under the rule of law rather than the law of the jungle. According to the Declaration of Independence, largely inspired by Locke, it was to gain this security we exchanged our consent to be governed in the first place.

Therefore we must ask: If it is a legitimate role of the government to build courthouses and hire judges, is it not only a difference in degree, not kind, to assure litigants adequate representation so they may properly present their case when they go to court? Indeed, is not legal representation a practical necessity that those knowledgeable in the law would have to admit: that the man who represents himself has a fool for a client?

So the first point is this: Access to justice is no more a welfare program than maintaining a court system is a welfare program. Maintenance of a civil court system is so close to the core purpose of government that it justifies governance even when all other justifications fail.

But I suggest the availability of legal representation is not itself the driving principle which serves as its own justification. Rather it is simply an application of a more basic principle we call access to justice. I would define this to mean the legal right of every individual to have his or her grievance determined on the merits by an independent judiciary. But if we are to be principled in the defense of this principle, we must identify, and confront, barriers to access beyond those represented by poverty or indigency. After all, what good is even a retained attorney by your side if the doors to the courthouse are locked against you?

To give a most recent example, on June 10, 1999 the Washington State Supreme Court in a five to four decision denied relief to Ronald Petersen, civilly incarcerated as an alleged sexual predator. This decision diminished access to justice in three ways. First, the majority held Mr. Petersen had no right to appeal an annual determination that his incarceration should continue. It thereby denied access to the justice of appellate courts as a matter of right. Second, a majority of the court held Mr. Petersen was not entitled to be accompanied by an attorney at his annual evaluation because the proceeding was civil, not criminal. Finally, the court credited psychiatric testimony which relied upon Petersen’s willingness to use the civil justice system in his own defense as further evidence he is a sexual predator and further reason he should remain imprisoned. These too, are serious questions which are included within the principle of "access to justice."

As another example, a recent law review article suggests individuals contesting unconstitutional legislation must be first required to exhaust their political remedies by seeking legislative repeal of an unconstitutional statute before an independent judiciary will even hear their case. Although this proposal was made in the name of judicial restraint, I submit it is the victim who is being restrained, not he who would violate the legal rights of another. This too raises an access to justice question worthy of attention as do all judicially and legislatively created preconditions to having one’s case heard by an independent judiciary on the merits.

In re Detention of Petersen notwithstanding, our law has recognized the right to counsel, at public expense if necessary, for those individuals who may lose their liberty—usually in a criminal proceeding—yet the right to counsel in civil proceedings, which are mainly property related, is not recognized. But as Judge Johnson points out, the distinction between liberty and property is not necessarily a distinction based upon the importance of the loss to the individual who loses it. I would contend we cannot denigrate the right to own and use property without also denigrating a system of civil justice which is primarily concerned with the protection of our property. Property is a very broad and general concept. To paraphrase John Locke, a person’s property in his person is foremost among his rights to property. James Madison agreed, when he recognized one has a property interest not only in one’s "land, or merchandise, or money," but also in "the safety and liberty of his person." It is the protection of property which is the reason for the civil justice system we seek to access.

Citing to Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972), Judge Johnson reminds us, as did the Supreme Court, that property has no rights, people have rights:

Id. at 552.

Unfortunately the access to justice principle which has embraced those individuals fighting imprisonment in the criminal courts lags far behind others who are fighting in the civil courts to maintain and protect their home, their bank accounts, and their possessions acquired throughout a lifetime of honest toil. As evidence of this, our supreme court in State v. Catlett, 133 Wn.2d 355, 945 P.2d 700 (1997) upheld a civil forfeiture of property in addition to the imposition of criminal penalties notwithstanding constitutional prohibitions against double jeopardy, thus allowing the civil form of the proceeding to trump judicial recognition of the substantive nature of the deprivation.

I agree with Judge Johnson that it is a contradiction of the access to justice principle to guarantee the right of counsel to indigent criminal defendants on the one hand while refusing to recognize a sometimes equally important, if not paramount, interest to legal representation in civil matters.

Finally there is the matter of how this representation is to be funded. Of course lawyers who give of their time and resources represent the highest spirit of professionalism. I do not believe it is appropriate, however, to require such participation by lawyers, not only because the "quality of mercy is not strain’d" but also because every time we add a new restriction or impediment to the practice of law, we marginally restrict the supply of legal services and thereby drive up their price. Therefore it seems to me the advocate for the access to justice is also the advocate for encouraging the rendition of more legal services by more people, not fewer services by fewer people. The advocate for access to justice is the advocate for openness in the system, and mercy to our kind.

But however much we tinker with the system by expanding the supply of legal services through reducing the barrier of licensure, or encouraging representation of low income persons through contingent fees or fee-shifting statutes such as the Washington State Civil Rights Act of 1999 championed by Jeff Needle, Senators Pam Roach, Mike Heavey, Adam Kline, and others, we must of course realize that the need for assistance in the provision of legal services cannot be eliminated as long as the poor are with us.

And this delivers me to my last point. That is, if we are truly to access justice, we must facilitate that access in a just way. We must recognize that the civil justice system is a core function of government which is not only available to all, but the responsibility of all to maintain. If attorney fees for indigent criminal defendants and judicial salaries are properly borne by the taxpayers as a whole, it is equally appropriate of all of society, not just the unfortunate few who happen to be involved in the judicial system, to make sure the doors of the courthouse remain open in form and substance. Financing such a system through confiscation of the private property of those who happen to be directly or indirectly involved in the judicial system is unjust because it forces the few to shoulder the public burden to benefit the many. For the same reason increasing filing fees to meet this need discourages access to justice, and, once again, unfairly places the burden society as a whole should bear upon the shoulders of the few.

General tax revenues, broadly based and fairly administered, are a just means to obtain a just end. Tradition holds it is the responsibility of the citizen to bear arms in defense of his country and to pay taxes to support those legitimate institutions of government created at his request, by his consent.

In conclusion, let us then defend access to justice in the manner this great principle should become accustomed. Let us promote it fairly and consistently across the board, recognizing that its origin is not the welfare state but rather the state of affairs which exists when the government fulfills its basic purpose: To secure our lives, our liberty, our property, and our private pursuit of happiness in the civil context. As this is a public benefit, it is equally a public responsibility to be shared by us all, not to be shouldered by the few.

It is for these reasons I concur in this noble purpose.