August 1999

The Duty of the Judiciary to Ensure Access to Justice

Few issues in American public debate are as controversial, and sadly misunderstood, as the role and duty of the judiciary. Perhaps this is the consequence of judges’ relative insularity and limited participation in high-profile political controversy. The higher up the judicial chain we go, this Olympian isolation increases. Trial courts are largely involved in dispute resolution, and factual contexts, where everyone feels some license to have an opinion — viz., Court TV and the glut of popular law programs. But neither law nor judiciary, as controversial commercial entertainment, is our subject. We explore the role-duty of the judiciary respecting the fundamental right of "Access to Justice" (ATJ). This topic may be seen by the uninitiated as soporific, even though the judiciary has the most critical role in protecting meaningful equal justice under law for the vast majority of people. However, since the only real issues are "constitutional" — not political, and not media-entertainment — deafness tragically sets in, even for some of the bench and bar.

This article is the fourth in Bar News discussing access to justice.1 We assume that readers of these articles already understand that the following basic jurisprudence principles are well-documented, and not subject to serious attack or controversy:

• ATJ is a fundamental right.
• The purpose of government is to secure rights and administer justice and rule of law.
• The legal profession, and particularly the judiciary, has a duty to preserve and protect constitutional rights.
• The judiciary, in our constitutional structure of separation of powers, has the primary responsibility of ensuring and implementing ATJ.

The Constitutional Basis of Judicial Duty

It would be naïve to believe that implementations of this clear constitutional responsibility would occur without contentiousness, controversy, and risk to judges doing their duty. Sources for opposition, arguments and rationalization are multiple — some based on ignorance and prejudice; others on misplaced populism; and still others on competing values, largely rooted in "policy." There are also constitutional doctrinal disputes, which are the subject of a considerable literature.2 A recent law review article by Justice Philip A. Talmadge, "Understanding the Limits of Power: Judicial Restraint and General Jurisdiction Court Systems,"3 reviews judicial duty in contexts not present here. Justice Talmadge describes the core functions of the courts — dispute resolution, the inherent power to administer court systems, and:

Another core function of the courts is a vindication of individual interests against majoritarian impulses to tyranny. Notwithstanding a policy of judicial restraint, this anti-majoritarian policy remains a vital core judicial function often at odds with the principle of limiting court access. Courts must enforce individual liberties and interests against collective needs. In fact, the power of the common law rests in its individualized decisionmaking and its "policy" or ability to create a "rule" based on individual sets of facts. Emblematic of this core function is the duty of Washington courts to safeguard the individual liberties articulated by Wash-ington’s constitutional framers in our constitution’s Declaration of Rights. [emphasis added]

Clearly, the article reinforces the obvious point that if there is a fundamental constitutional right involved, the judiciary has a duty to safeguard those rights. Thus, the discussion as to the limits of power argued to be involved in the other core functions is beyond the subject matter of this article. Justice Talmadge goes on to state:

Within the constitutional sphere, however, the court should be active and the other branches of governments constrained not to act unconstitutionally. The judiciary cannot "restrain" itself from declaring the enactment of legislative bodies violative of constitutional norms. The court must vigorously protect individuals, particularly minorities, from majoritarian tyranny. But this protective role does not allow the court to "constitutionalize" every controversy. Judicial self-restraint lends support to the legitimacy of judicial independence.

Judge Anne Ellington aptly characterizes this duty: "Judges are the keepers of the constitutional flame."4 Judge Ellington and colleagues on the bench, in law schools, and at the bar have keen awareness of the historic origins of the thousand-year old jurisprudential principles involved here.5 Judicial duty with respect to ATJ has always been implicit, but in the American experience, it was constitutionalized by our most important Supreme Court opinion, Marbury v. Madison, 5 U.S. 137 (1803). Marbury not only explicitly and historically affirmed the fundamental character of the right, but also mandated the judiciary to provide a remedy, since it was self-evident that if there is a right, there must be a remedy, which, if not otherwise secured, must be provided by the judicial power. Marbury’s constitutional priority is best known because it confirmed that the judicial power necessarily includes judicial review, to ensure constitutional conformity in other branches of government. That review is an essential judicial duty. Justice Marshall stated:

That the people have an original right to establish for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.… The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained. The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it, or, that the legislature may alter the constitution by an ordinary act.… It is emphatically the province and duty of the judicial department to say what the law is. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, the court must either decide that case informally to the law, disregarding the constitution; or conformably to the constitution, disregarding the law.… This is of the very essence of judicial duty.

Justice Marshall affirmed that the framers of the constitution empowered the judiciary to be the keepers of constitutional rights. Their oath of office states:

I do solemnly swear that I will administer justice without respect to persons, and to equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.

At least from 1803, the duty of the judiciary to uphold constitutional rights, and to invalidate any acts or ignoring of rights by any branch of government was an absolute oath-taking obligation of a judge. When combined with a fundamental right, there is no constitutional choice for a judge. The description of the right was:

It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded…. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of his laws, whenever he receives an injury. One of the first duties of government is to afford that protec-tion.…The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

For almost 200 years, these basic constitutional principles have been formally affirmed, repeated, written and taught. Yet, rule of law, and protection of the laws for violation of rights, for much of our history has been the exception rather than the rule for "non-persons" such as slaves, Indians, women, children, non-propertied persons, workers, political dissidents, immigrants and countless others, including the vast majority of our people whose poverty is so disabling that they cannot meaningfully receive the protection of the laws of their government. Although the fundamentality of access to justice has been recited hundreds of times in appellate courts of the United States and the states, there are few lawyers who plead it and even fewer judges who identify constitutional violations and conform to their duty and their oath.

Happily, there have been brilliant, articulate and courageous judges — independent judges, without whom there would not be rule of law nor meaningful constitutionalism. A close relationship exists between an independent judiciary and a compassionate one. The term "judicial independence" in customary usage tends to be focused on the freedom of the individual judge from outside influence and control. This becomes enormously complicated when we deal with judicial institutions, not only individual judges. Appellate courts (unlike a trial court) have an institutional character. Their sense of independence is, in part at least, the product of their collective consciousness concerning independence. That culture has its beginnings in the jurisprudence of professionalism, which only in recent years has been given focus by law schools and the organized bar. Judges in the United States do not have a separate track of education and professional experience. They are lawyers before they become members of the judiciary. Most judges believe that they have backbone and courage. Their aspiration is to do the right thing. The question is whether they know what the right thing is. It may be perceived differently for traffic court judges, administrative judges, juvenile judges, or a justice of the Supreme Court. All must have the legal skills, have respect for the rights of the parties, and be absolutely impartial between contestants. But there are differences in doing the right thing, depending upon the setting. And whether the judicial role is conflict resolution or the protection of rights (constitutional issues, particularly where those rights are "fundamental"), the goal is justice. The process of resolving conflicts fairly and impartially is an essential function of justice. All judges must keep the fora open and accessible. Courts implement conflict resolution through the working process, and by knowledgeable even-handedness of law application. But when fundamental rights are involved, and constitutional principles need to be applied, the independent judge must be the implementer and guarantor of the basic values of the society. There is a specific jurisprudence which permits a judge to have judicial independence.6 

However, when we think about rule of law, democracy, freedom, constitutionalism, or access to justice, we are thinking about the social function performed by judges. That function is also a product of our history. The growth and meaning of human rights is a continuum that throughout history has become more and more inclusive. We need to know the sources of these ideas. It would be incredible hubris to believe that the American Scriptures — the Declaration of Independence, the Bill of Rights, the Gettysburg Address — or even the most profound and soaring pronouncements of our great Justices — were born full-grown without antecedents.

In 1776, and thereafter, that jurisprudence was mandatory for our Founding Fathers. It continued to be so as our state constitutions were written, and it was essential as our constitutional jurisprudence developed. Our constitutional courts included great scholars of natural law and common law, and the philosophers of the Enlightenment. Our constitutional structure, and its underlying values, have led our courts to encompass, and incorporate within our law, not only customary international law, but universally recognized human rights and the expanding character of the Laws of Nations.

Certainly those who wrote our Declaration of Independence were not neutral about individual rights, nor did they lack passion in their esteem for liberty and justice. Neither Thomas Jefferson nor John Adams was neutral about anything. Their intellect, their commitment and their passion forged a nation and made them great. Judicial passion may be a necessary ingredient of judicial greatness. It was the intensity, as well as the far-reaching intelligence, of Justices Holmes and Brandeis that led them to be great dissenters. Indeed, the dissenter is often the conscience of the bench — the prophet whose constitutional steadfastness becomes the jurisprudential gold standard for later generations. No judge can be seen as great in the eyes of posterity unless his values, commitments and priorities are anchored in individual rights, curbing abuse of power, and equal justice under law. But these ringing phrases become more complex in the factual disputes which are the setting for the jurisprudence arising from judicial decisions. At times, there are competing values which require weighing particularly in constitutional disputes. However, it is critically important for an effective appellate process to have judges who will see, and give weight to, those issues so fundamental to our constitutional values that they must be prioritized in decision-making. A judge with that juridical sensitivity is an essential factor for a successful appellate court, unsettling as he may be. The recognition that a controversy involves a fundamental ATJ issue almost invariably should produce a constitutionally affirming remedy.

We have been the beneficiaries in the state of Washington of great jurists, whose intellect and passion laid a jurisprudential foundation for the protection of ATJ in this state. Robert Finley, a Supreme Court Justice for 25 years, twice serving as Chief Justice, prematurely died in office in 1976. Charles Horowitz served for only five years, 1975-1980, retired due to illness, and shortly thereafter died. It is a rare emotional and intellectual treat to read their opinions, which, in substantial part, provide the guidepost for our jurisprudence of the fundamental right of ATJ. Justice Finley’s opinions for the Court included In re Luscier, 84 Wn.2d 135 (1974), and Carter v. University of Washington, 85 Wn.2d 391 (1975). Carter is a brilliant jurisprudential masterpiece. After Justice Finley’s death, in what may be the most shameful and ethically insupportable decision, at least in this state, in the access-to-justice field, Carter was reversed in part in Housing Authority of King County v. Saylors, 87 Wn.2d 732 (1976). The Saylors decision is embarrassingly bereft of jurisprudential distinction. Even worse, the Saylors majority condemned Justice Finley’s rich and deep understanding by saying this fundamental right was "contrary to public policy," and that "free access to the judicial process" was not permissible in "the field of economics and social welfare."

Justice Horowitz’s dissenting opinion is a brilliant, reasoned response, elevating the dignity and the ethics of the judiciary and enlightening through keen analysis and historic understanding the fundamental nature of the right to be able to access a justice system. To this date, there has not been any scholarship as insightful and useful as that of Justice Horowitz. Any judge in this state, and anywhere in the United States, would have a better understanding of his judicial duty if he read that opinion. The Saylors dissent was the law then, and remains the law now, despite the Dred Scott-Plessy-Lochner-type retrogressive, and even spiteful reasoning of the razor-thin majority in Saylors.7 

Justice Robert Utter concurred with Justice Horowitz in that decision. In his own right, Justice Utter had developed an insightful constitutional jurisprudence in access to justice, state constitutionalism, rights doctrine, and the judicial process that earned him a national reputation. His law-review articles on subjects closely related to this article are resources of wisdom and compassion. His decision in In re Juvenile Director, 87 Wn.2d 232 (1976), is a scholarly, wise and balanced discussion of separation of powers and principles of judicial independence. That decision explained that "the inherent power of the judiciary to compel funding of its own functions is only one of many forms that power may take." Judicial power permits implementation of rights. Justice Utter described multiple circumstances where the court’s duty to provide remedies for unconstitutional violations of the right to access to justice were present. Courts possess an implied power to compel the expenditure of public funds for their own operation. Yet under the facts of that case, there was no basis for the exercise of the inherent power by the judiciary. Nor was the court disabled from performing a constitutionally mandated function. Under these circumstances, the wise use of judicial power was restraint and consideration for another branch of government.

Justice Utter honored the law and ennobled the judiciary, not only because of his judicial independence, intellect and scholarly attributes, but also because of his deep commitment to compassion and justice. His ethics and moral repugnancy toward government-mandated death for criminal offenders led him to resign from the Court. His personal and constitutional sensitivities are reminiscent of the career and writings of Justice Benjamin Cardoza, who, in the minds of many, is the epitome of judicial and social wisdom. In his brilliant, sensitive, and beautifully written monograph, The Nature of the Judicial Process,8  Cardoza stated poetically and succinctly the wisdom of the ages as to how a judge could be "independent."

In my analysis, the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore, in the main, there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom, when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs, but symmetrical development may be bought at too high a price. Uniformity ceases to be good when it becomes uniformity of oppression. The social interests served by symmetry or certainty must then be balanced against the social interests served by equity or fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.… In the end, the principle that was thought to be most fundamental, to represent the larger and deeper social interests, puts its competitors to flight. I am not greatly concerned about the particular formula through which justice was attained. Finally, when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history, and sacrifice custom in the pursuit of other and larger ends. From history and philosophy and custom we pass, therefore, to the force which in our day and generation is becoming the greatest of them all, the power of social justice…the final cause of law is the welfare of society.

1 See Schroeter, Washington State Bar News articles: "Fundamental Right of Access to Justice: The Historical Antecedents" (May 1999); "The Jurisprudence of Professionalism" (June 1999); and "The Declaration of Independence: The Precursor of Equal Justice Under Law" (July 1999).

2 See Schroeter, "Civil Gideon: If Not, Why Not?," presented at the Washington State Access to Justice Board Jurisprudence Committee Workshop, Wenatchee, July 1999. It discusses ATJ jurisprudence; disputes concerning the constitutional requirement for right to counsel; reviews United States and Washington State Supreme Court jurisprudence; and discusses the role and rationalization of those who reject the right of indigent parties to have counsel and the protection of the law.

3 22 Seattle Univ. L. Rev. 695 (1999).

4 Remarks by Judge Ellington at the Second Annual ATJ Conference in Yakima in 1997, the ATJ Jurisprudence Committee workshop program on "Professionalism: The Role of the Bar in Ensuring Equal Access to Justice."

5 At the First Annual ATJ Conference in Chelan in October 1996, the ATJ Jurisprudence Committee’s workshop centered around a paper entitled "The Jurisprudence of Access to Justice: From Magna Carta to Romer v. Evans via Marbury v. Madison." A shortened version of the paper presented at Chelan, authored by LWS, was published in Trial News, June 1998.

6 See Schroeter, "Judicial Independence – A Sine Qua Non for Rule of Law and Constitutionalism," presentation to Access to Justice Conference, Chelan, Washington, March 5, 1998.

7 For a detailed discussion of the Carter-Saylors cases and controversy, see the article cited in Footnote 2.

8 Yale University Press, 1921.

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